INTERNATIONAL COURT OF JUSTICE
PLEADINGS, ORAL ARGUMENTS, DOCUMENTS
SOUTH WEST AFRICA CASES
(ETHIOPIA v. SOUTH AFRICA;
LIBERIAvSOUTH AFRICA)
VOLUME IV
1966
COUR INTERNATIONALE DE JUSTICE
MÉMOIRES, PLAIDOIRIES ET DOCUMENTS
AFFAIRES DU SUD-OUEST AFRICAIN
{ÉTHIOPIE c. AFRIQUE DU SUD;
LIBÉRIA c. AFRIQUE DU SUD)
VOLUME IV Counter-Memorialfiled by theGovernmentof the Republicof SouthAfrica
LIST OF ABBREVIA TJONS
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lation comparée
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Debates, Senate
Senate INTERNATIONAL COURT OF JUSTICE
PLEADINGS, ORAL ARGUMENTS, DOCUMENTS
SOUTH WEST AFllICA CASES
(ETHIOPIAv.SOUTH AFRICA;
LIBERIA vSOUTH AFRICA)
VOLUME IV
1966
COUR INTERNATIONALE DE JUSTICE
MÉMOIRES, PLAIDOIRIES ET DOCUMENTS
AFFAIRES DU SUD-OUEST AFRICAIN
(ÉTHIOPIc.AFRIQUE DU SUD;
LIBÉRIAc.AFRIQUE DU SUD)
VOLUME IV The present volume contains Books VIII to X and the Supplement
to the Counter-Memorial and the Reply filed in the South West
Africa cases. The proceedings in these cases, which were entered
on the Court's General List on 4 November I960 under numbers 46
and 47, were joined by an Order of the Court of 20 l\fay I96r
(South West Africa, Order of 20 May I96r, I.C.]. Reports I96I,
p. 13). Two Judgments have been delivered, the first on 21 December
1962 (South West Afri'ca, Preliminary Obfec#ons, fitdgment, I.C.].
Reports I962, p. 319), and the second on 18 July 1966 (South West
Africa, Second Phase, Judgment, I.C.]. Reports I966, p. 6).
The page references originaHy appearing in the pleadings have
been altered to correspond with the pagination of the present
edition. Whcre 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 VIII à X du contre
mémoire, le supplément au contre-mémoire et la réplique déposés
dans les affaires du Sud-Ouest africain. Ces affaires ont étéinscrites
au rôle généralde la Cour sous les n°• 46 et 47 le 4 novembre 1960
et les deux instances ont étéjointes par ordonnance de la Cour
le :20 mai I96I (Sud-Ouest a/ricai'n, ordonnance du 20 mai I96I,
C.I.J. Recueil I96I, p. 13). Elles ont fait l'objet de deux arrêts
rendus le 21 décembre I962 (Sud-Ouest africain, exceptions prélùni
naires, arrêt,C.l.J. Recueil I962, p. 319) et le 18 juillet 1966 (Sitd
Ouest a/ricain, deuxi'èmephase, arrêt,C.1.J. Reciteil .r966, p. 6).
Les renvois d'un mémoire à l'autre ont étémodifiés pour tenir
compte de la pagination de la présente édition. Lorsqu'il s'agit d'un
renvoi à un autre volume de la présente édition, un chiffre romain
gras indique le numéro de ce volume.
La Haye, 1966. CONTENTS - TABLE DES MATIÈRES
PART I. APPLICATION INSTITUTING PROCEEDINGS
AND PLEADINGS
PREMIÈRE PARTIE. REQU:ÈTES INTRODUCTIVES
D'INSTANCE ET MÉMOIRES
SECTION B. PLEADI!-GS (continued)
SECTION B. MÉMOIRES (sitite)
5. Counter-Memorialfiled by the Government of the
Republic of South Mrica (continued)
BOOK VIII
Page
Section A. Supplemental material in regard to the alleged violation
by Respondent of Article 2 of the Mandate . . . . . . . I
Chapter I. Introductory. . . . . . . . . . . . . . . . . . I
Chapter II. Extracts from petitions relied on by Applicants . .3
Paragraph B.r: extract from a communication dated 30 Oc
tober r956 from Hosea Kutako to the Chairman of the
ParagraphsomB.2 and B.3: extractsAfrifrom communications 3
Dausab Iet al. . . . . . . . . . . . . . . . . . . . . 6
Paragraph B.4: extract from a communication dated 27 No
vember 1957 from Hosea Kutako to the Secretary-General
of the United Nations. . . . . . . . . . . . . . . . . 9
Paragraph B.5: extract from a communication dated 13 .Tune
1957from Nghuwo Jepongo to the Secretary-General of the
United Nations. . . . . . . . . . . . . . . . . . . . 12
Paragraph B.6: extra et from a communication dated 3 August
1957 from Mr. Toivo Herman Ja Toivo and eighty other
Ovambo to the Chairman of the Trusteeship Council . . . 13
Paragraph B.7: extract from a communication dated 30 Sep-
tember 1958 from J. G. A. Diergaardt et al. to the United
Nations. . . . . . . . . . . . . . . . . . . . . . . 15
Paragraph C.1: extract from a communication dated 25 Feb
ruary 1959 from the Rev. Markus Kooper to the United
Nations. . . . . . . . . . . . . . . . . . . . . . . 16
Paragraph C.2: extract from a communication dated 14 Sep
tember 1960 from Chief Hosea Kutako to the Secretary-
General. . . . . . . . . . . . . . . . . . . . . . . 17X SOUTH WEST AFRICA
Page
Paragraph C.3: extract from a communication dated 2 Sep
tember 1954 from Hosea Kutako et al. to the Secretary-
General ...................... . 17
Paragraph C-4: extract from a communication dated 20 June
1958 from Johannes Dausab et al. to the Secretary-General 18
Paragraph C.:_;:extract from a communication dated 16 JuJy
1956from Jacobus Beukes to the Secretary of the Committee
on South \Vest Africa . . . . . . . . . . . . . . . . . 19
Paragraph C.6: extract from a communication dated 30 Sep
tember 1958 from J. G. A. Diergaardt et al. to the United
Nations ...................... . 19
Paragraph D.:c: extract from a communication dated 20 June
1958 from Johannes Dausab et al. to the Secretary-General 22
Paragraph D.2: extract from a statement by Hosea Kutako
and others forwarded to the Chairman of the Committee on
South West Africa by the Rev. Michael Scott in a com
munication dated 22 July 1958. . . . . . . . . . . . . 23
Paragraph D..3: extract from a statement by Hosea Kutako
et al. referred to in Paragraph D.2 . . . . . . . . • . . 31
Paragraph D-4: extract from a communication dated 17 Octo
ber 1957 from Mrs. Ka.the van Lôbenfelder, Outjo, to the
Trusteeship Council. . . . . . . . . . . . . . . . . . 32
Paragraph D.5: extract from a communication dated 30 August
1960 from l\fr.S. Mifima, chainnan, South West Africa
People's Organization, Cape Town, to the Committee on
South West Africa . . . . . . . . . . . . . . . . . . 33
Paragraph D.6: cxtract from a communication datcd 3 August
1960 from South West Africa People's Organization, Wind
hoek, South West Africa, to the Committee on South West
Africa ...................... . 33
Paragraph E. I: extract from the statement cited in Paragraph
D,2 ........................ . 35
Paragraph E.2: extract from a communication dated 22 No
vember 1957 from S. Shoombe and 100 other Ovambo to the
Secretary-General of the United Nations. . . . . . . . .
Paragraph E.3: extract from a communication dated Novem
ber 1953 from MissMargery F. Perham to the Chairman of
the ad hoc Committee on South West Africa . . . . . . .
Chapter III. The Petitioners . . . . . . . . . . . . . . . .
Section B. Alleged violations by Respondent of Article 4 of the
Mandate...................... · , , 47
Chapter I. Statcment of the law . . . . . . . . . . . . . 47
Chapter II. The alleged military bases in South West Africa 54
A. General ..................... .
B. The Rcgiment Windhoek .............. . 54
C. The alleged military landing ground in the Swakopmund 54
district of South West Africa. . . . . . . . . . . . . .
D. The alleged military camp or military air base in the Kao- 57
koveld ..... . 58
Chapter III. Conclusion . . . . . . . . . . . . . . . . . • 62 CONTENTS XI
Page
Chapter IV. Submission . . . . . . . . . . . . . . . . . . 63
Annex A. Paragraphs 61 to 66 of the "Report presented bY.
the Government of the Union of South Africa to the Counc1l
ofthe League of Nations concerning the administration of
South West Africa for the year 1929" (U.G. 23-1930,
pp. IO-II) . . . . . . . . . . . . . . , . . . , . . . 64
Annex B. Affidavit of G. H. Olivier, Registrar of Deeds,
South West Africa . . . . . . . . . . . . . . . . . . 65
Annex C. Affidavit of E. E. Smith, Surveyor-General, South
West Africa . . . . . . . . . . . . . . . . . . . . . 66
Section C. Alleged violations by Respondent of Article2 (r)of the
Mandate and Article 22 of the Covenant. 67
Chapter I. Statement of the law . . . . . . . . . . . . . . 67
A. Introductory . . . . . . . . . . . . . . . . . . . . 67
B. The alleged "duty to refrain from unilatcral annexation". 68
C. The alleged "duty to advance the political maturity of the
Territory's inhabitants so that they rnay ultirnately exercise
self-determination" . . . . . . . . . . . . . . . . . 70
D. Applicants' statement that "the phrase 'integral part' gives
1RespondentJ no licence to take unilateral action regarding
the terri tory, if such action amountsde factoannexation
or incorporation" . . . . . . . . . . . . . . . 74
Chapter Il.Relevant historical background . . . . . . 76
A. Generally as to the facts relied upon by Applicants 76
B. The League of Nations period. . . . . . . . 77
C. The period after the dissolution of the League. Sr
D. Conclusion . . . . . . . . . . . . . 85
Chapter III. Respondent's alleged intentions. . . . 86
A. Introductory . . . . . . . . . . . . . . . 86
B. The staternent of the South African Prime Minister in the
Senate on 21 May 1956. . . . . . . . . . . . . . . . 86
C. The speech of Mr. Basson in the House of Assernbly on
23 April1956 . . . . . . . . . . . . . . . . . . . . 87
D. The statement of the South African Prime Minister in the
House of Assembly on 23 April 1956. . . . . . . . . . 88
E. The statement of the South African Prime Minister in the
Senate on 14 June 1957 . . . . . . . . . . . . . . . 90
F. Conclusion . . . . . . . . . . . . . . . . . . . . . 91
Chapter IV. Conforment of South African citizenship npon the
inhabitants of South West Africa. . . . . . . . . . . . . 93
A. lntroductory . . . . . . . . . . . . . . . . . . . . 93
B. The resolution of the Council of the League of Nations of
23 April1923 . . . . . . . . . . . . . . . . . - . . 93
C. Extension of South African citizenship to British subjects
in South West Africa prior to1949. . . . . . . . . . . 95
D. The position under the South African Citizenship Act,
1949 (Act No. 44 of 1949). . . . . . . . . . . . . . . 98XII SOUTH WEST AFRICA
Page
Chapter V. Inclusion of representatives from South West Africa
inthe South African Parliament . . . . . . . . . . . . . ror
A. Introductory . . . . . . . . . . . . . . . . . . . . ror
B. The allegadon that the Act is "inconsistent with the inter
national status of the Territory". . . . . . . . . . . . ror
C. The allegations that the Act "impedes opportunity for
self-determination" and "excludes 'Natives' from the
processes of self-government" . . . . . . . . . . . . . 103
Chapter VI. Administrative separation of the Eastern Caprivi
Zipfel. . . . . . . . . . . . . . . . . . . . . . . . . ro5
A. Introductorv . . . . . . . . . . . . . . . . . . . . 105
B. The contro(and administration of Native affairs generally 105
C. Administration of the Eastern Caprivi Zipfel, 1921 to 1929 ro6
D. The periocl 1929 to 1939 . . . . . . . . . . . . . ro9
E. The period 1939 to date . . . . . . . . . . . . . . . no
F. Present administration of the Eastern Caprivi Zipfel. . . nr
G. The allegation that administrative separation of the East-
ern Caprivi ZipfeI is "inconsistent with the international
status of the Territory" . . . . . . . . . . . . . . . II2
H. The vicws of the Committee on South West Africa, as en
dorsed by Applicants. . . . . . . . . . . . . . . . . II3
I. The alleged frustration of opportunities for progress
towards self-determination . . . . . . . . . . . . . . n7
Chapter VII. The transfcr of administration of Native affairs to
the minister of Bantu administration and development, and
the vesting of South West African Native reserve land in the
South African Native trust . . . . . . . . . . . . . . . 119
A. Introductory . . . . . . . . . . . . . . . . . . . . 119
B. Transfcr of administration of Native affairs to the minister
ofBantu administration and development . . . . . . . 119
C. The vesting of South West African Native reserve land in
the South African Native trust . . . . . . . , . . . . 122
I. The resolution of the Permanent Mandates Commis-
sionof 7 July r924 . . . . . . . . . . . . . . . r22
II. The objects and purpose of the South African Native
trust. . . . . . . . . . . . . . . . . . . . . . 126
HI. The effect of vesting South West African Native
reserve land in the South African Native trust. . . r28
D. The views of the Committee on South West Africa, as
endorsed by Applicants . . . . . . . . . . . . . . . 129
E. Applicants' allegation that the measure in question is an
element "of a plan for political integration of the Territory"
and that it tends "substantially to impede progress toward
the objectives of the Mandate" 130
Chapter VIII. Conclusion 132
Chapter IX. Submission. 133 CONTENTS XIII
Page
Section D. Alleged violations of Article 7 of the Mandate. 134
A. Introductory . . . . .
134
B. Statement of the law. . . 134
C. Statcment of facts. . . . 135
Respondent's alleged intent 135
Respondent's alleged acts . 136
D. Submission . . . . . 136
BOOK IX
A glimpse of South West Africa . . . . 137
Index ............... . 138
BOOK X
Table of cases . . . . . . . 139
List of documentation. . . . 141
SUPPLEMENT TO THE COUNTER-MEMORJAL
Introductory. . . . . . . . . . . . . . 197
Government and citizenship . . . . . . . 198
Development projects . . . . . . . . . 198
Administrative and financial arrangements. 199
Annexes to the Sitpplement to the Counter-Af emorial 201
A. Memorandum containing the decisions by the Government of
the Republic of South Africa on the Recommendations of the
Commission of Enquiry into South West Afr:ica affairs . . . . 201
A. The rcasons for the appointment of the commission. . . . 201
B. The Government's attitude concerning the future course of
development. . . . . . . . . 202
C. Decisions hereby announced . . 203
Suppl y of water and electricity. 203
Transport . 205
Mining . . 207
Industries . 207
Agriculture 207
Education . 208
Health Services . 209
Purchase of land . . . . . . . . . . . . . . zrn
Appointment of a spccial committee of experts. 2IO
Coloured housing and community centres . . . 2n
D. Matters on which the authorities concerned will take their
own decisions . . . . . . . . . 2n
E. Mattcrs to be decided upon later . . . . . . . . . . . . 212
(a) Long-termprojects ................ 212
(b) Recommendat10ns which require further investigation
and consideration. . . . . . . . . . . . . 212
(c) Recommendations standing over for special reasons 213
Hornelands . . . . . . . . . . . 213
Administrative and financial relations. . . . . . . . 214XIV SOUTH WEST AFRICA
Page
Recommendations connccted with the foregoing . . . 214
F. The Gover:nment's attitude conceming the case pending
before the International Court . . . . . . . . . . . . . 215
G. Financial implications of decisions and interim arrangements
for their implementation . . . . . . . . . . . 216
The five-year plan . . . . . . . . . . . . . . 216
Interim financial and administrative arrangements 216
Liaison committee . . . . . . 217
B. Comparative table . . . . . . . . . . . . . . . . 218
C. List of the relevant documentation . . . . . . . . 219
6. Reply of the Governments of Ethiopia and Liberia
Chapter I. Statement of the case . . . . . . 220
Chapter II. History of the dispute since 196o 222
(r)1961 222
(2) 1962 . 225
(3) 1963 . 228
Conclusion 230
Chapter III. The nature of the Mandate. 231
A. General considera tions . . . . . . . . . . . . . . . . 23I
B. Nature of the Mandate as viewed by this honourable Court . 242
C. Nature of the Mandate as viewed by the Permanent Mandates 246
Commission. . . . . . . . . . . . . . . . . 246
I. Composition and character of the Commission 246
a. The composition of the Commission. . 246
b. The character of the Commission. . . 247
2. Lega] bai;is of Respondent's obligations .
3. Purposes and objectives of the Mandate . 249
4. Conclusic,ns . . . . . . . . . . . . . 25I
253
Chapter IV. Respondent's violations of its obligations toward the
inhabitants of the Territory . . . . . . . . . . . . . . . . 255
A. The relevant submissions . . . . . . . . . . . . . . . . 255
B. Respondent's policy with respect to the inhabitants of the
Territory ...................... . 260
I. Introductory comment . . . . . . . . . . . . . 260
2. Respond,3nt's policy: decisive and undisputed facts. 262
3. Analysis of Respondent's policy. 268
a. General considerations . . . . . . . . . . . . 268
b. Relevant evidencc . . . . . . . . . . . . . . 277
r. Juclgments of qualified persons with first-hand know
ledge of South Africa and South West Africa . . .
277
(A) Views of authorities cited by Respondent . . . 278
(B) Views of South Africans with "first-hand know-
ledge" of Respondent's policies 280
(1) "White" South Africans. 280
(a) Schola.rly authoritics 280
(b) Religious leaders .. 283 CONTENTS XV
Page
(c) Jurists ..... . 285
(d) Political leaders . . 286
(e) Authors . . . . . . 287
(2) South African "Natives" . 289
(3) South African "Coloureds". 292
(4) South African "Asiatics" . 292
2. Views of governments . . . . . . . ...
3. The wcight of contemporary scientific authority . 293
302
(A) R?spond~?t's ~01~te1~~iornegarding "differencc"
without mfenonty . . . . . . . . . . . .
(B) Respondent's contention of incvitable "frustra
tion" if all inhabitants of the Tcrritory are ac
cordcd cqual opportunity . . . . . . . . . . 306
(C) Respondent's contention that as a "realistic
government" it must support cxisting "group
reactions' '. . . . . . . . . . . . . . . . . 307
4. History and charactcr of the system of "homelands"
or "territorial apartheid'' . . . . . . . . . . . . 312
Annex I. "Scparate development and South \Vest
Africa;, some aspects of the Odendaal
report .............. .
Annex 2.Extract from working paper prepared by
the United Nations secretariat . . . . . 341
Annex 3. Extract from report of the United Nations
special committee on the policies of apart
heid of the Government of the Republic
of South Africa (1963). . . . . . . . . 349
Annex 4. Extract from report of the United Nations
special committee on the policies of apart
heid of the Government of the Republic
of South Africa (1964). . . . . . . . .
359
c. Analysis of Respondent's measures of implementation
of its policy . . . . . . 362
I. Education . . . . . 362
(A) Gencral policy . . 362
(1) Introduction . 362
(2) General policy 364
(3) Categorization 367
(B) Nature of education in the territory 370
(1) Segregation by race. . . . . . . . 371
(2) Separation by tribe . . . . . . . . 374
(3) Limitation of objectives in syllabus . 383
(C) Extcnt of education in the tcrritory 386
(r} Lai·ssez-/aire . . . . . . . . 387
(2} Compulsory education. . . . 3go
(3) Disparity in expcnditure. . .
393
(a) On education in general. 393
(b) On teachers in particular 394
(c) Conclusion. . . . . . . 397 XVI SOUTH WEST AFRICA
Page
Annex 5. Racial separation in education in depend-
ent territories, as viewed by the United
Nations . . 398
2. The economic aspect . . 404
(A) Introduction . . . . 404
(B) General considerations 405
(C) The reserves. . . . . 414
(D) The Police Zone . . . 417
(1) Racial discrimination in respect of admission
to employment and access to vocational
training . . . . . . . . . . . . . . . . 41g
(2) l\Ieasures having the effect of compulsion to
labour which involve racial discrimination 421
(3) Racial discrimination in respect of freedom
of association and the right to organize.. . 423
(E) Conclusion . . . . . . . . . . . . . . . . 424
Annex 6. Section (1): lntegration of inhabitants
into the economies of dependent terri
tories, as viewed by the United Nations . 426
Section (2):Extract from report of the
U.N.-I.L.O. ad hoc Committee on Forced
Labour ~ . . . . 431
3. Go\'ernment and citizenship. 439
(A) Introduction . . . . . 439
(B) Statement of law. . . . . . . . 441
(C) Suffrage and participation in the territorial
government . . . . . . . . . 442
(D) Gencral administration (civil service) . . . . . 445
(E) Local government . . . . . . . . . . . 446
(F) Government within the "Native" tribes and
"Native" reserves . . . . . . . . . . . . . 448
(G) Conclusions . . . . . . . . . . . . . . . . 450
Annex 7. Government and citizenship in dependent
territories,as viewed by the United
Nations . . . . . . . . . . . . . . . 451
4. Security of the persan, rights of residence, and free-
dom of movement . . . . . . . . . . . . . . . 458
(A) Relevant historical resumé . . . . . . . . . 459
(B) AnaJysis of measures of implementation of
apartheid with respect to residence, freedom of
movement, and security of the persan 464
(C) Statement of law. . . . . . . . . . . . . . 473
(D) Legal conclusions . . . . . . . . . . . . , 475
Chapter V. Legal basis and legal nature of respondent's obligations
toward the inhabitants of the territory . . . . . . . . . . . 476
r. League of Nations period. . . . . . . . . . 493
2. The United ~\a:tions Charter . . . . . . . . . 497
3. The Universal Declaration of Human Rights . 501
4. Draft declaration on rights and duties of States 501 CONTENTS XVII
Page
5. Trust territories agreements . . . . 501
6. Resolutions of the General Assembly 502
7. Resolutions of the Security Council . 503
8. Human rights covenants. . . . . . . . . . . . . . . . 504
9. United Nations Declaration on the Elimination of ail fom1s
of racial discrimination . . . . . . . . . . . . . . . . 505
ro. International convention on the elimination of ail fonns of
racial discrimination. . . . . . . . . . . . . . . . . . 507
rr. International Labour Organisation Constitution and con
ventions . . . . . . . . ·. . . . . . . . . . . . . . . 508
12. Regional treaties and declarations. . . . . . . . . . . . 509
(A) The European convention for the protection of hurnan
rights and fondamental freedoms . . . . . . . . . . 509
(B) Charter of the Organization of American States. . . . 5ro
(C) Amcrican Declaration of the rights and duties of man . 510
(D) Draft declaration of the international rights and duties
of man. . . . . . . . . . . . . . . . . . . . . . 510
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . 5IO
Chapter VI. RespondenL's violations of its obligations toward the
United Nations. . . . . . . . . . . . . . . . . . . . . . 520
A. The relevant submissions. . . . . . . . . . . . . . . . 520
B. Decisive and undisputed facts. . . . . . . . . . . . . . 520
C. Analysis of legal basis and nature of Respondent's obligations
toward the United Nations . . . . . . . . . . . . . . . 521
r. Respondent's obligation as statcd in Article 6 of the
Mandate is in effect, and Respondent is accountable there
under to the United Nations as the "organized inter
national community" . . . . . . . . . . . . . . . . 525
a. The League of Nations as the "organized international
community". . . . . . . . . . . . . . . . . . . 525
b. The Uni~e~. Nations as the "organized international
commumty . . . . . . . . . . . . . . . . . . . 537
2. The compromissory clause in Article 7 of the .Mandate
is in effect, and the said clause assures the judicial protec-
tion of the legal interest of the organized international
commWiity in respect of the "sacred trust". . . . . . . 540
D. Conclusion . . . . . . . . . . . . . . . . . . . . . . 546
Annex 8. Brief survey of legal arguments previously
advanced by respondent, and dispositions
thereofpreviouslymade by this honourable
Court, with respect to Respondent's obli
gations toward the United Nations . . . 547
I. Proccedings Ieading to the Advisory
Opinion of 1950 . . . . . , . · . . 547
2. The Advisory Opinion of 1950 . . . . 548
3. The Preliminary Objections . . . . . 549
4. Judgment on the Preliminary Objec-
tions . . . . . . . 550
5. The law of the case. . . . . . . . . 552XVIII SOUTH WEST AFRICA
Page
Chapter VII. Respondent's violations of its obligations both toward
the inhabitants of the territory and toward the United Nations 553
A. Respondent's violations of Article 4 of the Mandate 553
r. Statement of law . . . . . . . . . . . . . . . . . . 553
2. Statement of facts . . . . . . . . . . . . . . . . . 557
AnMX 9. Supplementary material with respect to
Respondent's violations of Article 4 of
the Mandate . . . . . . . . . . . . . 565
B. Respondcnt's violations of Article 2 (r) of the Mandate and
Article 22 of the Covenant
572
r. Introduction . . . . . . . . . . . . . . 572
2. Argument . . . . . . . . . . . . . . . 573
I. Conforment of South African Citizenship . . . . . . 576
2. Inclusion of representatives from South West Africain
the South African Parliament . . . . . . . . . . .
3. Administrative separation of the Eastern Caprivi Zipfe] 579
from the Territory . . . . . . . . . . . . . . . .
581
4, Vesting of South West Africa Native Reserve Land in
the South Africa Native Trust . . . . . . . . . . . 583
5. Transfer of Administration of "Native" Affairs to the
South African Minister of Bantu Administration and
Development . . . . . . . . . . . . . . . .
C. Respondent's violations of Article 7 (1) of the Mandate. . .
Chapter VIII. Submissions. . . . . . . . . . . . . . . . . .
Anne.x IO. Observations concerning the memorandum
on the recommendations of the commission
of the enquiry into South West Africa
affairs reproduced in the Supplement to
the Counter-Memorial . . . . . . . . . 589
Annex II. Supplementary material containing ad
ditional views of South Africans with
"fir_s~-hand knowledge" of Respondent's
pohc1es ......... . 593
(1) "White" South Africans . 593
(a) Scholarly authorities. 593
(b) Religious leaders. . . 595
(c) Political leaders . . . 596
(d) Journalists . . . . .
597
(2) South African "Natives" . 598
(3) South African "Asiatics" . 598
Annex I2. Supplementary material containing addi
tional views of contemporary scientific
authorities . 600
List of the relevant documents. . . 603
Table of cases . . . . . . . . . . fo5 BOOK Vlll
SECTIONA
SUPPLEMENTALMATERIAL IN REGARD TO THE ALLEGED
VIOLATION BY RESPONDENTOF ARTICLE :2OF THE
MANDATE
CHAPTER I
INTRODUCTORY
r. Chapter VI of the :Mcmorials contains, according to Applicants,
"Supplemental material in regard to the allegcd violation by [Respond
ent] of Article 2 of the Mandate", and it is alleged therein that whilst
Clmpter V of the Memorials sets out tacts "... derived principally from
official sources, including laws, proclamations, and administrative
dccrees in force in the Territory", Chaptcr Vf contains material which
illustrates "The manner in which the daily lives of inhabitants are
affccted thereby ... ". This material, it is stated, is derived from "... pe
titions received by the United Nations Committee on South West Africa
from various persons and organizations in the Territory", and it is
alleged that the cmnulative cffect of such petitions "... reinforces,
in gcneral, the factual allegations contained in Chapter V" of the Me
morials •
1t is alleged, furthermore, that the "probable accuracy in substance"
of the allegations contained in the petitions is "confirmed by the fact
that many incidents recounted in the petitions are predictable conse
quences of the pattern of [Rcspondent's] administration in the Terri
tory", and it is stated that the petitions were received from a "wide ...
variety of independent sources" 1•
The extracts from the petitions cited in Chapter VI of the Memorials
are submitted to the Court, so it is stated, "as typical and illustrativc
applications of [Respondent's] policies in the Territory" •
2. In Chaptcr II below Respondent deals with the extracts from the
pctitions relied on by Applicants.
A large numbcr of allegations contained in these extracts amount to
a repetition of allegations already made by Applicants in Chapter V
of the Memorials. In order to obviate unnecessary duplication, Respond
cnt will not give a detailecl answer to all the allegations contained in
the said extracts, but will from time to time, as convenicnce dictates,
refer tothose portions of this Counter-Memorial in which matters raised
in Chapter VI of the Memorials have already been dealt with.
Respondent wiU, in its reply to the allegations contained in the said
1 I,p.167.z SOUTH WEST AFRICA
extracts, demonst:rate that the petitioners have generally not hesitated
to exaggerate or misrepresent conditions in South West Africa, and that
the complaints raised in the extracts are substantially, and in somc
cases entirely, without foundation.
3. In Chapter IJI below Respondent dcals with Applicants' allegation
that the said petitions emanate from a ''\vide... variety of independent
sources". It will be shown that the majority of petitioners canin no way
be regarded as "independent", but that they are persons who, as rep
resentatives of certain sectional interests in the Tcrritory, have resorted
to the regular pradice of petitioning the United Nations Organization,
ail in furtherance of a general campaign directed at bringing about, by
whatever means, an end to Respondent's administration of the Territory,
and at establishing for the Territory "government of ... Africans" 1•
1 Vida Chap. III, para. 2,infra. CHAPTER II
EXTRACTS FROM PETITIONS RELIED ON BY APPLICANTS
Paragraph B,1: Extract fr~m a Communication Dated 30 October 1956
from Hosea Kutako to the Chainnan of the Ad Hoc Committee on South
West Africa 1
r. This extract relates to a proposal made by H.espondent to the
inhabitants of the Aminuis Reserve to add to the said reserve a portion
of the strip between the reserve and the Bechuanaland border, known as
the Corridor (the Aminuis Herero call it Kuridora), in exchange for
two inferior portions of the reserve whlch could not be effectively used
because of a lack of a suffi.dent supply of water.
Due to a shortage of water, the Corridor had been uninhabited for
many years. Attempts to find water had not met with succcss until efforts
were made by the Administration to bore for water at great depths
with a view to opening up the Corridor for development. It was necessary
to bore to a depth of over I ,ooofeet beforc the operations proved success
ful. Twenty-two boreholes, yielding good supplies of potable water,
were the result of these efforts.It was considered that a portion of the
land tlms improved should be made available to the Aminuis inhabitants
-hence the proposed exchangc.
2. According to agricultural experts, the portion of the Corridor pro
posed to be added to the reserve was far more valuable from a farming
point of view than the two portions of the reserve proposed to be ex
changed for it.
3. Hcadman Hosea Kutako and the inhabitants of the rcserve werc
consulted with regard to the proposed cxchange. At the time of such
consultation no decision had been made with regard to the future of
the two portions of the reserve involved in the proposed exchange.
The advantages attaching to the proposed exchange were explained
to the residents ofthe reserve as being, inter alia:
(a) The land to be added to the reserve was larger than the land to
be excised therefrom, and it was also bet ter prepared for developmcn t.
The portion of the Corridor which it was proposed to add to the
reserve had no less than 16 boreholes, and the carrying capacity of
the area was in the vicinity of10,000 cattle. The land proposed to be
given in exchange had only three satisfactory boreholes, and its
carrying capacity was about 3,000 cattle units.
(b) In tenns of money, the value of the relevant portion of the Corridor
was estimated as follows:
16 Boreholes at about R4,680 ([2,340)
cach. . . . . . . . . . . . . . . . R74,880 (f37,440)
Pastoral and Agricultural value of land. . R550,ooo (f275,ooo)
Total . . . R624,880 (f312,440}
11, pp.167-168. SOUTH WEST AFRICA
4
The value of the portions of the reserve proposed to be exchanged
was estimated as follows:
Borehole at "post 500" . . . . . . . . Rr,024 (.fsr2)
Lister engine and equipment . . . . . . R8oo (f400)
Cernent reservoir and drinking trough R376 (fr88)
Value of three further boreholes, approxi-
mately. . . . . . . . . . . . . . . RS,ooo (f4,ooo)
Pastoral and agricultural value of land. . R300,ooo (f150,ooo)
Total . . . R3ro,200 (fr55,100)
4. The proposal was rejccted by Headman Hosea Kutako and his
followers. Although the proposed cxchange complied with the provisions
of section 5 {r) of Act No. 56 of r954 1,the Minister of Bantu Adminis
tration and Developmcnt had no wish to force the exchange upon the
inhabitants of Aminuis Reserve. The proposed exchange was therefore
abandoned.
5. Although the Administration had, prior to the aforementioned
negotiations, proposed opening up the Corridor for European settlement,
it was subsequently decided that the Corridor would not be subdivided
into farms, but would remain as an area which could be made available
to farmers for grazing in times of drought. It was also decided that
applications for grazing on that area, by Natives, including residents of
the Aminuis Reserve, would receive the same consideration as appli
cations by European farmers 2• Subsequent to the latter decision,
grazing and water points in the Corridor were in fact placed at the disposa]
ofthe inhabitants of the Aminuis Reserve.
6. With regard to the proposed exchange here in issue, Respondent
wishes to emphasize:
(a) The exchange was intended to allow the Native population of the
Aminuis Reserve to share in the benefits of the area (the Corridor)
which had, as a result of costly improvements, been opened up for
development by the Administration.
{b) The exchange was intended to be, and would have been, cntirely
to the advantage of the inhabitants of the Aminuis Reserve.
(c) Nothing was done without consultation, and when it tmnspired
that Hosea Kutako and his followers were not in favour of the ex
change, the proposa} was abandoned.
7. Apart from the facts relating directly to the proposed exchange,
as dealt with above, the extract from the petition here in issue also
contains Hosea Kutako's alleged reason for objecting to the proposa!.
The first allegation in this regard is;
''... our first Native Reserve was at Augeikas near Windhoek and
the Govemment removed us from it in order to give the land to the
Europeans. We were then given Otjimbondona from which we were
removed in order to make room for European farmers. Finally we
1 Act No. 56 of 1954, sec. 5 (1), inStatutes of the Union of South Africa r954,
p. 563. The said section requires, in the event of any part of a Native reserve being
excised, a substitution of "land of at least an cquivalent pastoral or agricultural
value".
2 G.A ., 0.R., Fourternth Sess., Fourlh Comm., 915th Meeting, 19 Oct. r959,
para. 14, p.168. COUNTER-MEMORIAL OF SOUTH AFRICA 5
wcre given Aminuis Native Reserve with the assurance that it would
be our permanent home 1."
The allegation insinuates that reserves previously established for the
inhabitants of Aminuis were taken away from them for purposes of
European settlement.
This insinuation is without substance. At the inception of the Man
date it was necessary to reassemble Herero who were scattered over the
Territory, and to establish them in reserves 2• Among the reserves
established for them, were Aminuis and Epukiro in the Gobabis district,
which were set aside by Government Notice No. 122 of 1923 (S.W.A.) 3.
While the said reserves were being prepared for occupation, the prospec
tive inhabitants were first assembled at farms such as Aukeigas, and
from there, and elsewhere in the Territory, moved to other farms,
including Otjimbondona and Scheidthof, along the road to the afore
mentioned reserves. The Herero who were on their way to Aminuis and
Epukiro were accommodated on these farms purely temporarily, and
had to wait there until the Aminuis and Epukiro reserves were ready
for occupation. At the time when Hosea Kutako and his followers were
temporarily accornmodated as aforestated on Aukeigas and Otjimbondo
na, neither of these farms was a Native reserve. Hosea Kutako is thus
incorrect in saying "... our first Native Reserve was at Augeikas ... " •
(Italics added.) He is also incorrect in stating that "... the Government
removed us from it in order to give the land to the Europeans" 1• In
fact the said farm was not after their departure therefrom given out
for European settlement at ail. It remained unallocated land for a number
of years until it was proclaimed a rcserve for occupation by Dama in 1932.
The statement: "We were then given Otjimbondona from which we
1
were removed in order to make room for European farmers" , is also
incorrect. The said farm served merely as a place of temporary accommo
dation, as stated above, and was not intendcd to be, nor was it in fact,
a Native reserve.
8. With regard to the allegation that ". . . the previous removals
caused much hardships and were responsible for the loss of much of our
livestock and other property" 1. Respondent points out that the prevfous
moves referred to took place in the early 1920s, and were unavoidable if
the Herero people were to be brought together and granted permanent
homes. Everythlng possible was done to facilitate these moves and to
minirnize the loss of livestock on the way. In any event, the earlier
moves, which were over long distances, could hardly be compared with
that which would have been involved if the proposed exchange had been
accepted. The latter would have entailed a removal of only a small
number of people over a short distance to an area directly adjoining the
Aminuis Reserve.
9. Regarding the allegation that "... Aminuis Native Reserve is too
1
small for its inhabitants ... " ,Respondent denies that this was the case
in 1956 when this allegation was made, and further states that this has
not been the case at any time up to the present.
1 I,p. 168.
2 Vide Book VI, Chap. III, paras. 7. '24·33, of this Counter-:Memorial.
3 G.N. No. I'22 of 1923 (S.W.A.),in The Laws of South West Africa I923, pp.
84-88,6 SOUTH WEST AFRICA
In 1956 the extent of Arninuis Reserve was approximately 555,795 ha.,
and this is still the position today.
The carrying capacity of the area is from 8 to 10 ha. per large stock
unit 1,which means that the reserve has a carrying capacity of between
55,500 and 69,000 head of large stock.
The population of Aminuis has shown a tendency to remain more or
ess constant. The statistics are as follows 2:
1936 2,775
1946 2,252
1954 2,269
1956 2,840
1960 2,351
1963 2,806
The density of population has thus over the years remained at ap
proximately one inhabitant to 200 ha. In 1956 the population of 2,840
consisted of 710 men, 958 women and 1,172 children 3• Practically al!
the adult males were stock owners.
2
The livestock figures in the table below indicate a large increase over
the years, and afford a striking example of the economic progress of the
Aminuis inhabitants:
Large stock 1 Small stock
Year Large stock Small stock per capita per capita
of population of population
1937 · · · · · · u,907 17,876 4.3 6.4
1956 .. 30,6r8 r,678 11.0 o.6
1963 ...... 47,048 25,367 16.8 9.0
rt is thus clear, having regard to the carrying capacity of the reserve,
that it has at no stage been too small for its inhabitants.
Paragraphs B.2 and B.3: Extracts from Communications Dated 10
January 195~1.and 31 July 1958, from Johannes Dausab et al. 4
10. The two extracts here in issue emanate frorn certain of the in
habitants of the fann Hoachanas, and purport to deal with the position
of the residents of the said farm up to 1958. The gist of the charges in
these extracts is:
{a) that, despite numerous requests by the inhabitants to the Adminis
tration to improve the water supply on Hoachanas, and despite
assurances given by the Administration, nothing had been done; on
the contrary, existing agricultural Jands had been reduced; and
(b) that the inhabitants were to be removed from Hoachanas, and
their land alienated, solely for the benefit of the "European settler
1 Vide Book III, Chap. I, para. 31, ofthis Counter-1\femorial.
i Departmental information.
3 Kôhler O., A Study ofGobabis District (South West A/rica), Ethnologîcal Publi
cations, No. 42 (1959),para. 236, p. 70.
• l,pp. 168-169. COUNTER-MEMORIAL OF SOUTH AFRICA 7
community", and that the newarea allocated to them, viz., Itzawisis,
was "useless land".
II. The farm Hoachanas, 14,253 ha. in extent, is inhabited by a
number of Red Nation Nama and some other Natives.
In order to understand the petitioners' contentions, a short history
of Hoachanas is necessary.
In August 1901, the German Colonial Office authorized the creation
of a reserve of not more than 50,000 ha., in and around Hoachanas, for
the Red Nation Nama. Although demarcated during 1903, the proposed
reserve was apparently never proclaimed as such. This rnay have been
due to the outbreak of the Herero-Narna rebellion in 1904, during
which the Red Nation Nama also rose against the German Government.
On 26 December 1905, an Imperial Ordinance providing for the
expropriation of Native properties in South West Africa was enacted.
By virtue of powers vested in him by this Ordinance, the German
Governor issued a Notice on 8 May 1907 confiscating, inter alia, the
property, movable and immovable, of the Red Nation Nama of Hoacha
nas 1•
The German authorities thereupon proceeded to dispose of portions
of the area originally demarcated for the proposed reserve.
The farm Hoachanas was thus German property which, save for the
portions disposed of by the Germans as aforestated, accrued to Respond
ent in its capacity as Mandatory at the inception of the Mandate.
12. A small number of the Red Nation Nama who had not taken
part in the rebellion were allowed by the German Administration to
remain on Hoachanas and to graze their stock on the farm on payment
of grazing fees. These Nama were still on the farm when Respondent
assumed control of the Territory.
During the first fcwyears of the Mandate, Respondent treated Hoacha
nas as a temporary reserve for its inhabitants. The Native Reserve
Commission of 1921, appointed to investigate and report, inter alia, on
the setting aside of land for the Native population of the Territory,
recommended the creation of Native reserves and, at the same tirne,
recornmended the closure of certain small temporary reserves, including
Hoachanas. The Commission suggested that land at Tses should be made
2
available for the then residents of Hoachanas •Because of practical
difficu]tiesat the time, this suggestion could not be carried out.
13. Although the Red Nation Nama who had occupied the farm
during the last years of the German regime had been granted only
temporary occupation and grazing rights, the Administration at different
times promised the said occupants that they could remain on the farm
and exercise such rights for the rest of their lives. The Administration
has consistently honoured these promises.
1 Vide Die deidsche l(olonial-Gesetzgebimg, Sammlung der auf die deutschen
Schutzgcbiete bezüglichen Gesetze, Vcrordnungen, Erlasse und internazionalen
Vereinbarungen mit Anmerkungen, Sachregister,Elfter Band (Jahrgang r907),
Vide Deulschu Kolonialblatt: Amtsblatt für die Schutzgebiete in Afrika und in der
Südsee, XVIII Jahrgang, No. 20 (15 Oktober 1907),p. 981.
z Report of Native Reserves Commission (S.W.A.), 8 June 1921 (unpublished),
p. 22 and Annex B; also llfinutes of Meeting of tire Native Reserves Commi/O'J'
South West Africa: held a/ Windhoek on the ars/ Jime, r92r (unpublished), p. 5.8 SOUTH WEST AFRICA
Save in the case of the small number of inhabitants to whom the
above life rights were promised, occupation of Hoachanas has at all
times been pennitted only on a temporary basis. This arrangement was,
however, an unsatisfactory one, inasmuch as the farm, not being a
proclaimed reserve, could not be developed properly. No trust fund, from
which improvements could be financed, could be created under the pro
visions of the Native Reserves Trust Funds Proclamation No. 9 of 1924
(S.W.A.) 1 As an interim measure it was arranged that the fees which
residents paid for the right to graze their stock on the land would be
utilized for limited improvements. The expenditure incurred on im
proving the water supply was met in this way, as well as the cost of tools
and food for those engaged on minor improvements, such as the building
of small dams.
14. In 1956 the Administration decided that positive steps should be
taken to end the temporary arrangement described above, and to pro
vide the inhabitants of Hoachanas with a permanent home. A committee
was appointoo to investigate the matter of acquisition of land for this
purpose. This committee inspected and commented favourably on the
farm Itzawisis. The said farm is larger than Hoachanas, and adjoins
the Nama reserve Berseba, as well as the Tses reserve, where a number
of Nama are resiclent. It is close to two railway sidings, and medical
services are more readily available, than at Hoachanas. A dam had been
built and a borehole, yielding a good water supply, had been equipped
with the necessary plant. The committee recommended that additional
dams should be built and boreholes drilled to provide for future needs.
The grazing was good, especially for small stock 2•
15. Sixty-four of the residents on Hoachanas accepted the offer to
move to Itzawisis, anddid so voluntarily at the end of 1956.The majority,
however, under the leadership of Markus Kooper 3and others, refused to
move, maintaining that they were entitled to an area of 50,000 ha. in and
around the farm Hoachanas, and that the Administration intended
depriving them of tlieir land. They claimed restoration of 36,000 ha. of
land of which, according to their allegations, they had previously been
deprived by the South West African Administration, and added certain
other claims. The Administration, on the other hand, recognized only
the enjoyment of life rights granted to the original occupiers who had
received grazing privileges during the German regime, and maintained
that the remainder had no legal right to remain on Hoachanas. A test case
was brought in the High Court of South West Africa against Markus
Kooper, the Administration praying for a declaration that Hoachanas
was government land, and for an ejectment order against Markus
Kooper.
On 21 July 1958 the High Court gave judgment to the effect that
Hoachanas was govemment land, and that Markus Kooper was an
unJawfuI resident at Hoachanas. In reaction to this judgment petitioners
Dausab and Kooper alleged that the High Court had given a prejudiced
decision, based on perverted facts.
1 Proc.No. 9 of c924 (S.\V.A.), The Laws of South West Africa,Vol. II {1923-
1927),pp. 179-181.
2 Videstatement in G.A ., O.R., Fourteenth Sess., Fourth Comm915th Meeting,
19 Oct. 1959, paras. 17-18, pp. 168-169.
3 The petitioner referred to in para1at I, p.170. COUNTER-MEMORIAL OF SOUTH AFRICA 9
Each and every one of the petitioners' allegations was incorrect, as
well as the allegation in the extract quoted by Applicants, viz., that-
"Because the 'Nation' has strengthened his hands Dr. Verwoerd,
the minister of the Union Department of Native Affairs sent his
secretary Dr. Eiselcn to inform the officers of the S\VA's adminis
tration to effect our removal from Hoachanas ."
The decision to propose the removal of the inhabitants of Hoachanas
was made by the South West African Administration, although the
Minister of Native Affairs was consuited and acquiesced in the proposed
action, which, as has been shown, had been suggested by the 1921
Commission 2.
16. Respondent denies that the proposed removal was motivated by
a desire to make room for "European settlement", and further denies
that it had, or has, any intention of depriving the inhabitants of Hoacha
nas of land necessary for their present and future needs. Due primarily
to its small size, Hoachanas was regarded as unsuitable for a Native
Reserve. The proposed move to Itzawisis was motivated by a desire on
the part of the Administration to provide the tcmporary inhabitants of
Hoachanas with a permanent home, which could be properly developed,
on land adjoining reserves permanently occupied by fellow Nama. lt
must be notcd that, although the small nurnber to whorn life rights of
grazing on Hoachanas had been granted, were, in the interests of the whole
group, exhorted to rnove with the others, no attempt was ever made or
contemplated to move them against their will.
17. Respondent denies the allegation that ithas "reduced" any "agri
cultural lands" of the farm Hoachanas, and further denies the allegation
by the petitioners that Itzawisis was "useless land which is just good for
1
the purpose of grave yard" • At the time when the move to Itzawisis
was proposed, the grazing and the prospects of augmenting the water
supply wcre good. All the efforts subsequently made to improve the
water supplies were, however, disappointing, and a most severe and pro
longed period of drought followed. It was found that in severe drought
conditions the water supplies on Itzawisis would be insufficient for the
purpose of sustaining all the inhabitants of Hoachanas. The Adminis
tration has therefore decided to defer the removal of illegal residents
on Hoachanas until satisfactory water supplies, sufficient also during
severe periods of drought, have been developed at Itzawisis, or until
other arrangements have been made to provide the inhabitants of
Hoachanas with an area for their permanent occupation.
Paragraph B.4: Extract from a Communication Dated 27 November
1957, from Hosea Kutako to the Secretary-General of the United Nations 1
18. The following allegations are made by Headman Hosea Kutako
in this extract:
(a) that he and his followers were removed frorn their lands to the
present Native reserves to make room for European settlement;
(b) that the said removal was effected by force, and that the Govern-
1 I, p. 169.
2 Vide para.12,supra.10 SOUTH WEST AFRICA
ment burnt down their houses and eut off the water supply, rendering
the people horneless;
(c) that the "ave:rage person" (apparently intended to denote an adult
male as head of a family) in a reserve possesses 15 head of cattie
and about 20 goats with which he has to maintain a family; and
that he is not allowed to have more than three oxen;
(d) that cultivation of crops for human consumption is practically
non-existent, and that the Government does not allow the water in
the reserves to be used for irrigation purposes;
(e) that the inhabitants live on milk only, but that evcn this is not
sufficient to main tain a family because cream has to be sold to obtain
money with which to buy clothing;
(/) that water is so scarce in the reserves that rnany people live six to
seven miles away from the water, which they have to transport, and
which is sometimes muddy and undrinkable 1•
19. Respondent denies that the Herero were removed to the present
Native reserves from land which belonged to them. Amongst the con
sequences of the :r904-1907 rebellion was the confiscation of all Herero
property north oE the Tropic of Capricorn 2• They were further p10-
hibited from keeping large stock. At the inception of the Mandate the
Herero therefore had no lands of their own, and it was entirely to their
advantage that they werc reassemhled and given new homes in reserves
set aside for them.
20. Respondent. denies that the rcmoval of the Herero to the reserves
set aside for them was accomplished by force. Respondent further
denies that their water supplies were eut off, or that their houses were
bumt down in order to effect such removal. On one occasion a finn
waming of forcible expulsion was necessary in respect of a few dissen
tients amongst a group that had been housed temporarily on a farm
called Okatumba. which was not a Native rcserve; but the warning
served its purpose, and actual force was not rcquired. The group was
first accommodafod on Okatumba in 1916. fn 1924 they were required
to move to the Epukiro Reserve, which had meanwhile been opened up
for them. They had previously, at Respondent's invitation, inspected
Epukiro and had expressed complete satisfaction. When the time for
moving came, the majority complied without difficulty, but a dissentient
minority of 108 remained, raising a complaint about the opening up of
water at Epukiro. Upon being satisfied that the excuse was not genuine,
the Administrator caused the aforesaid warning to be issued. A full
account of the incident was given in Respondent's annual report to the
Council of the League in 1924 3•
21. The allegations by Headman Hosea Kutako as to the number of
livestock owned by Natives at the time when his petition was drafted,
are grossly incorrect. It is not certain whether the alleged figures refer
to the stock in all the Native reserves in the Police Zone, or whether
the figures refer to the Aminuis Reserve alone, as the words "in the
reserve" (singular) are used, whilst the petition as a whole purports to
1 1, p.16g.
2 Vide para. 1r, ,;upra, and Book VI, Chap. III, para. 27, of this Counter-Me
robrial.
3 U.G. 33-1925. pp. 20-21. COUNTER-MEMORIAL OF SOUTH AFRICA II
deal gcnerally with conditions in reservcs in the Police Zone. If the
average figures were intcnded to portray the position in all the reserves
within the Police Zone, the correct position at the time when Headman
Kutako's petition was drafted (in 1957) was as follows: The 6,513
families living in the Native reserves in the Police Zone (total popula
tion then approximately 28,000) owned 201,564 head of cattle and
379,379 small stock-i.e., about 31 head of cattle and 57 head of small
stock per family. Apart from a substantial number of stock sold out of
hand, the organized stock sales in the rcserves yielded 1454,866
(f227,433) during 1956 and R500,036 (l)50,018) during 1957. The sale
of cream by the inhabitants of the reserves yielded R88,984 (f44,492)
during the financial year 1956-1957 1•
If the figures given by Headman Kutako were, however, intended to
relate to the position ,vithin the Aminuis Reserve only, they were also
grossly incorrect. During 1956 there were 30,618 head of large stock and
1,678 head of small stock, owned by approximately 700 stock owners
within the Reserve, which then had a total population of approximately
2,800-i.e., 44 head of large stock and 2 head of srnall stock per owner.
The nurnber of large stock increased to 37,430 in 1959, and to 47,048 in
1963. The nurnber of small stock in 1959 and 1962 were 10,490 and
25,367. During the first half of 1963 two organized stock sales in the
reserve yielded Rrno,591 (f50,295 rns.).
22. With regard to the alleged restriction on the number of oxen
allowed, the position is as follows: The government notices relevant
to the prescrvation of soil and the control of stock in reservcs contain
no provisions which restrict the number of oxen whlch a stock-owner
may own or keep in a reserve. The regulations promulgated by Govem
ment Notice No. 68 of 1924 (S.W.A.) 2provide that a stock-owner may
not, without the Administrator's permission, keep more than rno head
of large stock and 300 head of small stock in a reserve. Thesc restrictions
were introduced to protect the interests of all stock-owners in reserves.
Without such a measure of control overstocking would becomc a serious
problcm, and the interests of the smaller stock-owners could be subjected
to those of the richer ones.
3
23. With regard to the allegabon that "the people live on miJk onJy" ,
Respondent states that the Herero people have traditionally and always
lived on a diet consisting principally of milk. And, as to the statement
"... even the milk is not sufficient to maintain a family because they
have to sell cream to get money with which to buy clothing" 3, the
suggestion of starvation due to an insufficiency of milk is unfounded.
The stock figures and income statistics quoted above are self-explana
tory. Quite apart from incarne derived from the sale of stock and cream,
many inhabitants of the reserves also dcrive income from wages as
employees outside the reserves.
24. Regarding the allegation concerning water supplies and the cul
tivation of crops, Respondent states that in most of the reserves in the
Police Zone, as on iTiostfarms, the water supply is a paramount problem.
1 Depa.rtmental information.
2 G.N. No. 68 of 1924 (S.\V.A.), ScheduleinThe Laws o/ South West A frica r924,
pp. 62-63.
3 1, p.IÔ<).I2 SOUTH WEST AFRICA
Water supplies are obtaincd mainly from underground sources and are
generally only sufftcient to meet essential needs, that is, for human
and animal consumption. There are no restrictions on the use of water
for irrigation purposes where the supply of water pennits of such use.
In view of the fact that a shortage of water is the overriding problem
in connection with farming in the Police Zone, great efforts have been
made by Respondent to increase water supplies in the Native reserves,
and to have facilities distributed evenly so as to eliminate undue con
centrations of the population.
Nonnally no reason exists why people should walk six to seven miles to
fetch water, as is alleged. There is nothing to prevent the residents of
reserves from residing or establishing their homes in close proximity to
water supplies. Nor is there any reason why, with proper use of existing
facilities, water should be muddy or undrinkable.
Paragraph B.5: E:dract from a Communication Dated IJ June I957 from
1
Nghuwo Jepongo to the Secretary-General of the United Nations
25. The following allegations are contained in this extract:
(a) conditions of life for Ovambo Native labourers in South West Africa
are scandalous;
(b) there is a system of forced labour, the majority of S.W.A.N.L.A.
rccruits being forccd to take up employment where they do not wish
to, and they •!ventually sneak away.
26. In the absence of specific allegations explaining in which way
conditions of life are alleged to be scandalous, Respondent is not in a
position to deal specifically with the charge made.
Respondent notes, however, that the petition from which only the
above extract is quoted by Applicants, contains a number of statements
regarding the alleged conditions of life of Ovambo workers, which
statements Applicants-presumably because they themselves can attach
no credcnce thereto--have chosen not to include in their charges. So,
for example, the petitioner refers to an alleged indiscriminate and
wholesale murder of Ovambo workers in the following terms:
"The Ovambo farm boys were decreased by their fann employers
by shootings. Sorne Ovambo victims were forced to dig their own
graves; many of Ovambo corpses wcrc burned to ashes by farmers
and thus were concealed; Ovambo corpses were thrown in deep dry
wells; some Ovambo corpses were hidden under big heaps of cattle
manures. Few farmers accused of murders were fined fifteen (fr5)
pounds only by Court. This above mentioned amount is often part of
an Ovambo victim's sacked manies (savings) ."
Respondent submits that no credence can be attached to a general
allegation that "conditions of life are a scandai" by a petitioner biassed
to such a degree that he is prepared to allege such gross falsehoods as
the above.
27. With regard to the living and working conditions of Native em
ployees in the Police Zone, Respondent refers to its reply to paragraphs
58 to 76 of Chapter V of the Memorials , and denies the allegation that
11,p. 170.
2G.A., 0.R., Thirteenlh Sess., SuNo. I'2(A/3906),pp. 59-60.
3 Vide Book V, s€:cs.B and C, of this Counter-Memorial. . COUNTER-MEMORIAL OF SOUTH AFRICA
13
"conditions of life for Ovambo Native labour in South West Africa are a
scandal''.
28. Respondent denies that any system of forced labour exists in
the Territory. If recruits accept work with certain mining concerns,
they forthwith enter into contracts with their prospective employers.
ln the case of other work, e.g., on farms or as domestic servants in
urban areas, it is often impossible to specify the particular employer at
the time when the prospective employee is recruited in Ovamboland.
In such cases the rccruits enter into preliminary agreements with the
recruiting agency, New S.W.A.N.L.A., to accept work of an agreed type
with employers to whom they may be allocated, at not less than a
specified wage. Before leaving for Grootfontein, the nearest railhead to
Ovamboland, the preliminary agreement is fully explained to the recruit
by the Bantu Affairs Commissioner or his assistant, and any recruit who
is dissatisfied with the type of work or with the wage offered, has every
opportnnity of refusing to take such work.
After arrival at Grootfontein. the recruits who have not already been
contracted to spccific employers, are allocated to employers. It is the
policy to return a recruit to his previous· employer if the recruit so
desires. Contracts between the employees and the employers are then
completed, if the former agree. The terms of the contracts are explained
tothe recruits, and all contracts are attested by the Bantu Affairs Com
missioner or his assistant, who inquires from the employee whether
he is satisfied with the agreement. The recruit has every opportunity
of refusing to assent to the said contract.
29. With regard to the allegation that the majority of Ovambo re
cruits eventually "sncak away", Respondent says that only a small
percentage of recruits Ieave their cmployers before the expiration of
their contracts. So, e.g., out of a total 1 of 35,063 extra-territorial and
northern Natives cmployed in the Police Zone on contract during 1959,
r,143 (i.e., approximately 3 per cent.) left their employment before the
expiration of their contracts and without such contracts having becn
cancelled. The petitioner's allegation in this regard is a gross exaggera
tion.
Paragraph B.6: Extract from a Communication Dated 3 August 1957
from Mr. Toivo Herman Ja Toivo and Eighty Other Ovambo, to the
Chairman of the Trusteeship Council 2
30. This paragraph also deals with the system of labour recruitment,
which was the subject of the preceding paragraph. With regard to the
first sentence of the extract here in issue. Respondent denies that the
contract system is "compulsory». as is alleged. Contracts are entered
into voluntarily, as explained in paragraph 28 above.
31. With regard to the "demand" that evcry young man should be
free to choose and serve his master as long as they understand each
other, Respondent states that, as far as choice of employer is concerned,
1 The total of35,063 included all extra-territoriand northern Natives in the
Police Zone in 1959, i.e., includthose previouslyemployed whose contractshad
been extended.
2 I, p. 170. SOUTH WEST AFRICA
a maximum effort is made by the recruiting organization to place a
prospective employee in employment of his choice. Itis in the interests
also of the organization to do so. Recruits are not assigned to employers
whom they do not wish to serve. AH Native labour contracts must be
in writing, and before a.contract is concluded the name of the employer
is disclosed to the prospective cmployee, and the terms of the contract
are fully explainccl to him by the Bantu Affairs Commissioner or his
assistant. Any recruit may refuse to enter into a contract.
32. As far as the duration of service is concemed, the special cir
cumstances make it impossible to permit Natives an unfettcred discre
tion. In the first place, they arc allowed into the Police Zone only for
a specified period, viz., the contract period, which may not exceed a
maximum period, fixed in consultation with the northern tribal author
ities.The initial contract period has at the request of the tribal author
ities been fixed at one year. In the case of farm labour there is provision
for an alternative r8 months contract, and all contracts may be extended
by mutual consent for further periods of six months each up to a total of
24 months in the case of married, and 30 months in the case of single,
men. In the second place, émployers making use of contract labour of
northern and extra-territorial Natives are obliged to provide the latter
with free rail and bus facilities from the place of recruitment to the place
of employment and, on the terrnination or cancellation of the contract,
with sirnilar facilities, free of charge, to the place of recruitment. Em
ployers would not be prepared to undertake this respom,ibility if employ
ees were allowed an unfettcrcd discretion to terminate their contracts at
will. Furthermorc, the task of ensuring that all recruits are retumed to
their homes after expiry of the contract period, as demanded by their
tribal authorities, would become impossible if cmployees were permitted
to change their employment at willwithin their contract period. Adcquate
provision is, however, made for an employec to rcquest a cancellation of
his contract if the employer does not comply with the tenns thcreof, or
in any way ill-treats the cmployee.
33. The "demand" that married women must be allowed to accom
pany their husbands to their place of employment and that unmarried
women must be pennitted to enter the Police Zone to look for work,
conflicts with the policy of the tribal authorities in the northem areas.
A matrilineal system is in operation in those territories, and the trfüal
authorities are particularly concerned that their women should remain
in their homelands to prevent detribalization. Furthennore, by remain
ing at home, the women are able to carry on the traditional fanning
activities and to provide for their families during the absence of their
husbands. Consequently, at the request of the northem tribal authori
ties, women arc not permitted to accompany their husbands who take
up employment in the Police Zone. For the same reason unmarried
women are not pennitted to seck employment in the Police Zone.
34. The "demands" of the pctitioners are, in the circumstances, either
based on incorrect facts, or otherwise represent a minority view which
is in conflict with the specific policy of the tribal authorities in the
northern areas. COUNTER-MEMORIAL OF SOUTH AFRICA I5
Paragraph B.7: Extract from a Communication Dated 30 September 1958,
from J. G. A. Diergaardt et al. to the United Nations 1
35. The first allegation in the extract here in issue is that
"Although the railway and the Aclministration's roads run through
a large part of our territory, ail the jobs on the railway and the
roads are reserved for the whites ."
The words "our territory" in the extract refer to the Rehobotlt Gebiet.
The charge is dcnicd. Although particulars of employment of Re
hoboth Basters on the roads or railways are not available, it is pointed
out that more non-Europeans than Europeans are employed in both
departments throughout the Territory. The 1963 employment figures, for
example, are as follows:
Roads Railways
Europeans . . . . . . . . 952 3,228
Non-Europeans . . . . . . 1,550 5,237
There is no ground for contending that "all the jobs on the railway
and the roads are reserved for the whites".
36. Respondent denies that industrial development in the Rehoboth
Gebiet is in any way hampered or restricted, or that Respondent or the
South \Vest African Administration is unsympathetic towards industrial
development within the Gebiet.
ln 1935 an industrial school was established at Rehoboth. In spite of
representations made to the Bastcr Raad to encourage support for the
school, the attendance dropped to five pupils, and frequently to as low
as two or three. The principal eventually resigned his post to takc up
more lucrative cmployment elsewhcre, and, owing to Jack of support,
the Education Department was unable to reopen the school at the begin
ning of 1937 2•
The inhabitants of the Gebiet arc entirely frcc to initia te any industry
which they wish. They arc entitled to own and opcratc mines within
the Gebiet. They are free to prospect in the Gebiet,whilst no Europeans
{rom outside the Gebiet may prospect or carry on any mining operations
therein without the consent of the Baster Raad. Dcspite encouragement,
the inhabitants of the Gebiet have not yet shown the initiative necessary
for the establishment of industries. Apart from the erection of a small
shoe factory by Mr. H. C. Beukes, the only sign of initiative to establish
industries was a decision of the Baster Raad in 1956 to set asidc an area
in the Gebiet for industriai development. No such area has yet been
demarcated. Should any of the inhabitants attempt to open factories or
erect industries within the Gebiet, they will receivc the wholehearted
support of the Administration.
37. Economie lifc in the Rehoboth Gebiet is based primarily on agri
culture. Practically the whole of the Gebiet is equal to the best pastoral
land in South West Africa, and the inhabitants arc almost exclusively
farmers. ln the development of their agriculture, the inhabitants rcceive
the full support of the Administration. Breeding stock can be obtained
from the Administration's experimental farms; the full range of ad
visory facilities ofthe Agricultural Branch is at their disposai; they
1 1,p. I70.
2 Vide U.G. 31-1937, para. 219, p. 38 anU.G. 25-1938, para.253, p. 42. SOUTH WEST AFRICA
may obtain free tcchnical help for the building of dams; the health of
their stock is wa1.ched and guarded by Administration officiais, and
veterinary services are available.
Paragraph C.1: Extract from a Communication Dated 25 February 1959
1
from the Rev. Markus Kooper to the United Nations
38. The petition hcre in issue emanates from the Rev. Markus Koopcr
formerly of Hoachanas, and refers in part to the position at Hoachanas
which has been dcalt with above 2•
The allegations contained in the extract from the petition appear to
be the following:
(a} The franchise has been extended to Europeans of the age of 18,
whilst itis denied to the Native population.
(b) Only the old non-White people who were adults during the German
regime have a say in "the matters of the terri tory", and this is of no
value while the Natives who were children during the German
regime are regarded as "non-originals" and "strangers", and are
refused ''any voice in the country of their birth".
(c) The consequences of the policy as referrcd to under (a) and (b)
above are, fir~.tly,that it brings the Natives back to where they wcre
more than a hundred years ago, and, secondly, that it weakens the
power of the Natives whilst increasing the voting power of the
Whites.
39. In reply to the allegation set out in (a) above, Respondent admits
that the franchise bas been granted to Europeans who arc 18 years old.
Respondent further admits that the participation of the Natives in
the affairs of the Territory does not include the right of franchise as far
as the election of representativcs for the Legislative Asscmbly or for the
South African Parliament is concerned. This matter is dealt with clse
where in this Counter-Memorial 3 and need not be discussed here again.
40. Respondent docs not fully understand the statemcnts refcrrecl to
in paragraph 38 (b) above. The aHegation certainly cannot refer to any
distinction made in the Territory as a whole between Natives who wcre
adults during the German regime, on the one hand, and ail other Nativcs,
on the other. ;'\o such distinction exists. The allegation must have been
intended by the Rev. Markus Kooper to refer to a unique situation
which obtains only in Hoachanas. As an act of goodwill, officials of the
Administration gave an undertaking to the inhabitants of Hoachanas
who had been given grazing rights on that property during the German
regime that they would, during their lifetime, be pennitted to reside on
4
Hoachanas and exercise grazing rights thereon •
During consultations with the inhabitants of Hoachanas concerning
theit proposed move to Itzawisis 5 one meeting was held spccifically for
the purpose of obtaining the vicws of those residents to whom the afore
mentioned undertaking had bcen given. The main object of the Chief
Native Commissioner, who presided, was to endeavour to persuade this
l 1,pp. 170-171.
2 Vide para~. ro-r7, supra.
3 Vide Book V, sec. E, of this Counter-Memorial.
4
Vide para. 13,supra.
' Vide paras. 14-15,supra. COUNTER-MEMORIAL OF SOUTH AFRICA 17
group of residents, whose life rights on the property were recognized,
also to move, so that the community would not be split up-a few on
Hoachanas, and the rest on Itzawisis. Consequently the views of only
those residents were sought at that particular meeting. At other meetings,
however, the younger members of the community, who were not entitled
to such life nghts, were allowed to participate in the discussions, and
they took full advantage of the opportunity to do so. The reason for
special consultation of the group to which the above undertaking had
been given, was at all times obvious.
41. Respondent denies that the members of the indigenous popula
tion of the Territory, or any section thereof, are regarded as "non
originals" or "strangers", or that any voice in the country of their birth
is refused them. The existing systems under which non-Whites partici
pate in the government of their own people are described elsewhere
in this Counter-Memorial 1,and need not be dealt with here again.
42. Respondent denies that its policies have set the indigenous popu
lation back to where they were a hundred years aga 2•On the contrary,
the facts set out in this Counter-Memorial show that there has been an
orderly and continuous advance in the welfare of the indigenous popula
tion.
43. With regard to the final allegation, viz., "lt also weakened our
power white the voting powers of the whites are increased" 3, Respondent
is uncertain to what the word "it" was intended to refer. If "it" was
intended to refer to the extension of the franchise to 18-year old Euro
peans, Respondent denies that such extension operated to weakcn the
power of the non-Europeans. Under Respondent's system of govcrnme~t
the "power" of the non-Europeans does not corne into competition with
the "voting powers" of the Europeans. The extension of the franchise to
18-year old Europeans has no effect on the participation of the non
Europeans in their own processes of government. If, however, the word
"it'' was intended to convey a notion of differentiation between in
habitants of the Territory who were adults during the German regime
and the younger generation of indigenous inhabitants, Respondent's
answer is that no such differentiation exists as far as participation in
processes of government is concerned.
Paragraph C.2: Extract from a Communication Dated 14 September 1960
from Chief Hosea Kutako to the Secretary-General 3
and
Paragraph C.3: Extract from a Communication Dated 2 September 1954
from Hosea Kutako et al. to the Secretary-General 3
44. The allegationsin these two extracts are, in essence, the following:
(a) the indigenous population is kept voteless;
(b) the indigenous population is not participating in the politîcal
development of the Territory, and has no representatives in the
councils of State;
1 Vide Book V, sec. E, of this Counter-Memorial.
2 Vide para.38 (c), supra.
] 1, p171.18 SOUTH: WEST·AFRICA
(c) the above m,~asures are motivated by the desire that political
rights must remain in the hands of the European minority; and
(d) the entire ind:igenous population is living in astate of poverty as a
result of the loss of its lands and low wages.
45. The complaints set out in sub-paragraphs (a), (b) and (c) above
have been leveiled against Respondent in practicalJy identical terms in
Chapter V of the Memorials. Respondent has dealt with these charges
1
in its reply to Chapter V of the l\Iemorials , and further discussion there
of is not necessary.
46. \Vith regard to the allegation that "The entirc indigenous popula
tion is living in a state of poverty as a result of the loss of their lands
and low wages" '", Respondent denies that the "entire" indigenous
population is living·in a statc of povcrty. Respondent bas dealt with the
economic position of the indigenous people in its reply to Chapter V
of the Memorials 3,and rcspectfully refers the Court to what was there
stated.
Respondent states that only a small percentage of the indigenous
population cxists in a statc of relative poverty, but denies that those
members of the indigenous population who do live in a state of poverty
have been reduced to such position "as a result of the loss of their lands
and low wages". No indigenous groups have lost land as a result of any
act of Respondent. On the contrary, ever-increasing areas of land have
been set aside for the sole use and occupation of the indigenous popula
tion, and positive measures have been adopted to prevent the alienation
of such land, and to preserve it for the indigenous peoples.
Of the small percentage of the indigenous population who live in
poYerty, some are paupers because they are, through old age or infirmity,
not in a position to work. Where such people in the Police Zone are not
supported by relatives, they are provided with pauper rations by the
Govcrnment. There are others who have reduced themselves to astate of
poverty through indolence and unwillingness to work. Finally, severe
and prolonged droughts have from time to tîme caused temporary
emergency conditions leading to indigence. During such periods govern
ment feeding schemes have becn put into operation. Respondent denies
that its policies or administrative measures are in any way responsible
for the measurc of poverty existing amongst somc inhabitants.
47. Inasmuch as the extract here in issue gives no particulars rclating
to the complaint of low wages, and since Applicants themselves do not
complain of Iow wages in their Memorials, Respondent does not propose
to deal with the petitioners' vague and general allegation in this regard,
save to say that, to the best of Respondent's knowledge, wages in South
West Africa compare favourably with those paid in other parts of Africa.
Paragraph C.4:Extract from a Communication Dated 20 June 1958from
Johannes Dausab et al.to the Secretary-General 4
48. The allegations contained in this extract can be summarized as
follows:
1 Vide Book V, se-c.E, of this Counter-Memorial.
2 [,.p. 1r.
' Vide Book V, s~:cs.B and C, of this Counter-Memorial.
4 1,pp. 171-172. COUNTER-MEMORIAL OF SOUTH AFRICA
19
(a) the indigenous people of South West Africa have no voice or repre
sentation in the government of the Terri tory;
(b) they are helpless, voiceless, outcasts, and are severely oppressed;
(c) the offices of Chief Native Commissioner, Welfare Officer, and
Location Superintendent serve no satisfactory purpose, and are
"deadly offices" seen from the point of view of the indigenous
population;
(d) if Europeans can be represented by Europeans in the government of
the country, there is no reason why non-Europcans cannot represent
their own people, and there is no justification for a European who
has been elected to the governing bodies by European voters to
represent non-Europeans who had no part in his election.
49. Regarding the allegations set forth in sub-paragraphs (a) and
(d) above, Respondent respectfully refers to its reply to similar allega
tions by the Applicants in Chapter V of the Memorials 1•
50. Respondent does not propose to deal with the vague and general
allegations as set forth in sub-paragraph (b) of paragraph 48 above.
They are baseless, and are denied.
5r. With regard to the allegation set out in paragraph 48 (c) abovc,
Respondent states that the offices referred to by the petitioners were
created and are maintained for the specific purpose of serving the best
interests of the indigenous population. The progress of the indigenous
po~mlation has to no small degree been facilitated by the efforts of the
Cluef Native Commissioner, the Welfare Officers and Location Super
intendents. On the whole the relations between these officiais and the
groups served by them are of the most cordial, and the fact that the
petitioners in this instance speak othcrwise, indicates that they are
cither voicing a minority view or acting in bad faith, with ultcrior
political motives. The Applicants' allegations are deniccl.
Paragraph C.5: Extract from a Communication Dated 16 July 1956 from
Jacobus Beukes to the Secretary of the Committee on South West Africa 2
and
Paragraph C.6: Extract from a Communication Dated 30 September 1958
from J. G. A. Diergaardt et al. to the United Nations 2
52. The allegations contained in these two paragraphs refer to the
Rehoboth Baster community. The petitioners' complaints concern the
system of government of the said community through an advisory
board. This system is alleged to depart from the "patriarchal law and
fondamental principles" of the community, which may, soit is feared,
jeopardize the community's future existence and "right of self-determi
nation".
53. Respondent states that a brief review of the history of the Reho
both community will clearly show that Respondent has consistently
attempted to obtain the co-operation of the Rehoboth community with
a view to their assuming a greater share in the administration of their
own affairs.
1
Vide Book V, sec. E, of this Countcr-Memorial.
i I,p.172. 20 SOUTH WEST AFRICA
54. The members of the Rehoboth community are known as "Reho
both Basters", who regard themselves as a separate race. As stated
elsewhere in this Counter-Memorial i, they settled at Rehoboth in 1870.
They had their own system of government, of which the chieffeatures were
a Volksraad (Parliament) and aKaptein (Captain) i.In 1906 the Germans
abolished the office of Kaptein and replaced the Baster parliament with
a council of nine burghers {citizcns), whose election was subject to the
approval of the German governor 2•The German magistrate at Rehoboth
acted as chairman of the council, except when purely domestic matters
were under discussion 2•The Germans made laws for the Gebiet so that,
in practice, the Basters lost their former rights of self-government.
55. After the Mandate had ·corne into existence, the Administrator
of South West Africa, acting on behalf of the Union Government,
commenced negotiations with the Rehoboth Basters which, in 1923,
cuhnfoated in an Agreement betwecn Respondent and the elccted Raad
of the community, on behalf of the Basters 3•
In terms of the Agreement the South African Governrncnt acknow
ledge the right and title of the Rehoboth community to the Rehoboth
Gebiet, and granted to the commwüty the right of local self-government
according to the laws of the community, and subject to the provisions
of the Agreement itself. It was agreed that certain laws of South West
Africa would be applied to the Gebiet and that the Administrator would
have the right to apply other laws from tune to time, after consultation
with the Raad of the community. In the event of a dispute between the
Administrator and the Raad in relation to any matter arising from the
Agreement, the Ra.ad would have the right to petition the South African
Parliament itself 4.
56. Soon after the conclusion of the Agreement it became evident
that the majority of the Burghers were dissatisfied, demanding nothing
less than full independence for the Gebiet. The result was astate of near
chaos, and in December 1924 the Administrator was forced to intervene.
He suspended the powers, fonctions and duties of the Kaptein (Captain),
Volksraad (Parliament), judges and magistrates of the community,
vesting them in the magistrate of Rehoboth, who was to exercise such
powers, fonctions and duties in accordance with the laws of the com
munity then in force, and in conforrnity with the provisions of the
Agreement of 1923. Tt was hoped that by this action law and order would
be restored in the Gebiet. Unrest continued, however, and in April 1925
the Administrator was forced to declare martial law to avert imminent
civil war. In contravention of martial law a number of Basters and
Herero took up arms, with the result that troops were despatched to
Rehoboth. The insurgents surrendered without a shot being fired. A
number of insurgents were arrested and charged, but those who
were convicted were almost immediately thereafter released under an
amnesty proclaimed by Proclamation No. II of 1925 (S.W.A.) 5.
1 Vide Book III, Chap. III, para. 88, of this Counter-Memorial.
2 Ibid.,para. 89.
3 The Agreement was proclaimed and ratifiedby Proc. No. 28 of 1923 (S.\V.A.),
in The Laws of South West Africa, Vol. II (r923-1927),pp. 144-153,vide alsoU.G.
41-1926, pp. IOO•I1)7.
• This right has never been exercised.
~ In The Laws of South West Africa I925, pp.45-47. COUNTER-MEMORIAL OF SOUTH AFRICA 2I
57. In 1928 an Advisory Board of six Baster members was constituted
to advise the 1agistrate of Rehoboth in his administration of the affairs
of the Gebiet .Three members of the Board were elected by the Burghers
of Rehoboth, and three were nominated by the Administrator. Since 1935
all six members of the Board have been elected by the Burghers of Reho
both.
The Board, although de jure purely an advisory body, plays an im
portant role in the administration of the Gebiet. Even the petitioner
l\Ir. Jacobus Beukes 2 commented as follows on the Board's function
on another occasion: "... whatever the Council (Advisory Board)
decides, whether good or bad, is final 3."
In practice the Board virtually exercises full self-goveming powers in
allinternai affairs, subject only to the laws of the land that have been
applied to the Gebiet. The function of the magistrate, in practice, is to
guide the Board as far as he is able.
58. In view of the role which the Board in fact plays in the adminis
tration of the Gebiet,extended powers of local self-government for the
Rehoboth community have been under consideration for a number of
years. Inasmuch as requests had from time to time been made by different
Advisory Boards for the restoration of the 1923 Agreement, it was
decided by Respondent that, as a first step towards the grant of in
creased powers of self-government, the Agreement of 1923 should be
restored toits original field of applicationIt must be noted that although
certain provisions of the Agreement were suspended by Proclamation
No. 31 of 1924 {S.W.A.) 4, the Agreement itself was never cancelled.
Most of its provisions are still in force.
59. On 13 May 196r the Administrator informed the Board that the
Agreement of 1923 could be restored, if the Community so desired, and
that thereafter there would be no objection to an amendment of the
Agreement. The assurance was further given that the Administration
would continue to assist the community in all spheres.
The Board decided that the burghers of Rehoboth should be requested
to make their own decisions about the Agreement. It was thereupon
decided that the magistrate, together with the members of the Board,
would conduct a series of meetings throughout the Gebiet to explain
the whole situation to the burgliers. Fifteen meetings were thereafter
held, during which it transpired that the majority of the burghers re
garded restoration of the 1923 Agreement with a measure of suspicion,
preferring to postpone the matter to draft a new agreement. The bur
ghers were specifically informed that the choice was entirely their own:
if they chose restoration of the 1923 Agreement, it would be regarded
as a great step in the direction of further development; on the other
hand, ifthey rejectcd the proposa! for restoration of the 1923 Agreement,
they could approach the Administration with alternative suggestions.
On 10 June 1961 the community, by an overwhelming vote, rejected the
1
2 PYoc.No. 9 of 1928 (S.W.A.), in The Laws of South Wesl Af,ica I9z8, pp. 38-52.
Whose petition is the first of the two here under consideration.
p. 42.atement dated 26 Mar. 1957, inG,A., O.R., TwelfthSess., Sup. No. 12(Af3626),
• Proc. No. 31 of 1924 (S.W.A.), in The Laws of South West Africa, Vol. II (1923-
1927), pp. 187-191.22 SOUTH WEST AFRICA
proposed restoration of the 1923 Agreement, whereupon the Board
expressed a desin: to enter into negotiations for the drafting of a new
agreement.
ln September 1961 the Board was invited to submit proposals for
a new constitution for the Gebiet. AUreasonable facilities and assistance
in the drafting of a new agreement regarding the form of future govern
ment for the Gebiet were offered, and have in fact been made available
to the Board. After continued meetings and postponements of discus
sions, the Rehoboth community have not yet corne to a final decision as
to the form which they desire their future government to take.
Pending a final decision on the part of the Rehoboth cornmunity as
to their proposais for new constitutional developrnent, the status quo
must of necessity be maintained.
60. In regard to the allegation that the Magistrate (Captain) of Reho
both told the Board that he was " 'alone' entitled to make decisions
in matters concerning Rehoboth and that the Advisory Board was there
mercly for the purpose of advising him" 1 ,Respondent says that at the
said meeting the Magistrate explained the legal position as dealt with
in paragraph 57 abovc, viz., that the Board was de jure purely an advisory
body, but that in practice every consideration was given to the wishes of
the Board.
Paragraph D.1: Extract from a Communication Dated 20 June 1958 from
Johannes Dausab et al. to the Secretary-General 2
6r. The all-embracing and sweeping complaints contained in this
extract show an extreme measure of bias on the part of the petitioners.
The first allegation in essence amounts to a charge that the White people
of South West Africa have deprived the non-Whites of practically ail
rights and advantages, including their "right of citizenship", their
money, their education and their land. In the result, it is alleged, the
non-Whites of South West Africa are strangers in the land of their birth,
with no land of their own, without money, without education, without
aid, without a roof to cover them, without road motor services, without
railroads, without telegraphs, without advantages of any sort. It is
further said that courts of justice are merely "presurned" to exist.
Finally, the petitioners allege that the Whites are making war upon the
defenceless non-Whites, are seeking means to torture them, and that
the petitioners could be killed in "this campaign".
62. Due to the Iack of particularity in the petitioners' allegations,
spccific replies thereto are impossible. Respondent, however. denies the
allegations individually and collectively. The non-Whites have suffered
no deprivation of the rights mentioned by them. On the contrary, as
indicated in this Counter-Memoria.l, there has been a consistent advance
of the indigenous inhabitants in the material and social fields, directly
attributable to Respondent's efforts to promote progress. The sweeping
statement that the indigenous inhabitants enjoy no advantages is with
out any foundation. Their economic position, their educational facilities,
1 1, p. r72.
2 Ibid., pp. r72-173. COUNTER-MEMORIAL OF SOUTH AFRICA 23
their living conditions, etc., have been dealt with in this Counter-Me
morial. The allegation that they receive no advantage from railroads,
roaèimotor services and services rendered by the Department of Posts
and Telegraphs, is cqually without foundation.
. 63. The allegation that "courts of justice are presumed to exist" 1
suggests that the petitioners wish to convey the idea that courts of
justice do not cxist. If tlùs is what the pctitioners intend, then, again,
the allegation is without substance. The courts of justice in the Territory
are open to all inhabitants and, as regards integrity and quality, they
are equal to the bcst in any country of the world.
64- Regarding the statement attributed to Mr. Allen, who was Chief
Native Commissioner in 1956, Respondent denies that this statement
has been correctly rendered. On the occasion in question Mr. Allen was
addressing the people of Hoachanas and trying to persuade them to
accept the Administration's offer of a permanent home elsewhere.
He explained to them what the legal position was, viz., that their
residence on Hoachanas was illegal, except for the small number who
had been granted life rights 2, and that if they refused such offer, they
could become wanderers without any fixed abode, unless they obtained
permission to take up permanent residence elsewhere. The word "birds"
was not used at all.
65. Respondent also denies the allegation that the Whitcs are making
"war" upon the non-Whites in South West Africa, and the expectations
expressed by the petitioners that they could be tortured or killed in a
so-called "campàign" are, to thcir knowledge, and have indeed proved
to be, ludicrous. No action has bccn taken against anybody by reason of
petitions submitted to the United Nations. The authors of the petition
hcre in issue are still residing on the farm Hoachanas.
Paragraph D.2: Extract from a Statement by Hosea Kutako and Others,
Forwarded to the Chairman of the Committee on South West Africa by
the Rev. Michael Scott in a Communication Dated 22 July 1958 3
66. The extract rclicd on by Applicants is part of a statemcnt alleged
to have been made by Hosea Kutako and certain others, and submitted
to the Chairman of the Committee on South West Africa by the Rev.
Michael Scott.
The complaints in the extract deal with the administration of urban
residential areas for non-Whites. The first allegation is that the Windhoek
and Okahandja locations were to be removed to other sites, and that the
petitioners refused to be moved, contending that they would prefer the
existing locations to be improved on their prcsent sites rather than that
the population should be removed further away from their work.
With regard to the Okahandja location, Respondent denies that there
was any intention to move the location. It was replanned and rebuilt on
part of the then existing site and adjoining land.
67. With regard to the old location at Windhoek, it is necessary to
givc a brief résuméof events.
1 1,p. r73.
2 Vide paras. 13-t5, supra.
l I, pp. r73-175.24 SOUTH WEST AFRICA
After the Second World War the Native location at Windhoek was still
much what it had been many years before, but its population had soin
creased that the a.rea was badly overcrowded, and the conditions pre
vailing there, hygienic and otherwise, left much to be desired. In fact,
the old location had been found unsatisfactory for a long time, and
plans to improve or to remove it had been discussed repeatedly. It was
feltthat an attempt to improve the existing location would not be good
enough, and that a completely new township with modern facilities
should be plannecl. The considerations underlying tlus view were the
following:
(a) The intention was to establish a model township, designed on
modem lines, and providing for a respectable mode of lifeand healthy
living conditions. The new houses were to be larger than those in the
old location; they were to be built on larger plots, and the subdivi
sion of plots, or building of more than one house on one plot, as
had been the practice in the old location, was not to be allowed.
As far as space was concerned, replanning of a new township on
the site of the old location was impossible. The old site would have
accommodatcd only a quarter of the inhabitants aftcr replanning,
and the considerably larger area needed for the proper planning of
the new township, with sufficien·tground for wider streets, schools,
playing fields, parks, etc., did not exist there. Furthermore, there
woulcl have been no possibility of satisfo.ctory and economic
future expam.ion of the township.
(b) A scheme of providing new housing for the Native inhabitants of
the location would not have been feasible if the new houses had to be
built one by ,Jne, as and when old huts were demolished. To make
the most prof.table use of labour and to keep costs as low as possible,
mass production methods had to be used, as in common practice
wherever subsidized housing schemes are undertaken. A large
number of fa.milies would have been homeless for considerable
periods if a new housing scheme were to have been undertaken on
the site of th,~old location.
(c) The Native Advisory Board, the body representing the inhabitants
of the location, were duly consulted, and there was no doubt that
the majority of the location residents preferred the establishment
of a new township. In 1955, for example, the Board presented to the
Minister of Native Affairs an address in which he was asked to use
his influence with the Municipal Cormeil to expedite the removal to
a new site.
In 1954 the Executive Committee decided to grant the Munici
pality of Windhoek a Joan of R2,500,ooo (fr,250,000) for the
establishment of a new Native township.
68. The Municipal Council considered various sites for the new town
ship, and after the site at Katutura had been chosen as the most suitable
in all respects,the Native Advisory Board was again consulted, and it
agreed to the site chosen.
It may be addoo, furthermore, that neither Hosea Kutako, nor any
other spokesmen of the location residents, had at any time during vv-hi~h
the matter was under consideration, and when a decision could still
have been revoked, requested the authorities to build bouses at the
old site instead oi erecting a new township. COUNTER-MEMORIAL OF SOUTH AFRICA
With regard to the petitioners' statement "We have been re(using to
be moved" , Respondent wishes to point out that up to the stage when
the petition here in issue was submitted (July 1958), no spokesman of
the location residents had infonned the authorities that any Natives
would refuse to move to the new township.
69. The remaining portion of the extract here in issue is concemed
with the contents of regulations alleged to-" ... have been drawn up by
the Government to control all the locations in the towns of South West
Africa" 1•
In this regard Respondent states that at the stage when the said
petition was submitted, no new regulations had been promulgated for
the Katutura location (or for any other location in South West Africa).
Proposed regulations for Katutura were submitted to the Native Advi
sory Board for their comment, and regulations applicable to the new
township were subsequently promulgated by Government Notice No. 16
of 1962 (S.W.A.) 2.
These, or similar, regulations have not been promulgated for any
other urban Native location in the Territory. The only other urban
location where similar regulations have been promulgated, is at Walvis
Bay 3, which does not form part of South West Africa.
70. As the Applicants' allegations relating to location regulations
appear to be concemed with the Katutura township at Windhoek, Res
pondent will deal with the charges in relation to the regulations appli
cable to the said township.
The first allegation made in this regard is-"One regulation says that
the whole area of the location must be fcnced with only one gate leading
to the town" 1•
No such regulation exists. More particularly, there is no provision
that "the whole area of the location must be fenced", nor that there
must be "only one gate leading to the town" 1• In fact, at no time has
Katutura been fenced in. It is, however, necessary to erect stock-proof
fencing along certain strctches of the boundaries, for example, along a
boundary which is contiguous to a highway, or along the boundaries of
adjoining fanns. Furthermore, there are no entrance gates to Katutura.
7r. The next group of allegations is that whenever a person leaves
or enters the location he or she must be searched by a policeman at the
gate, and that in order to enter or lcave the location a permit must be
produced, which permit must specify reasons for leaving the location
or entering it. These allegations are again unfounded. No inhabitant of,
or visiter to, the location is searched on entry into or exit from the
location. There are no police stationed at any entrance to the location.
The police have no authority to issue permits, and such permits as may be
required are issued at the Location Superintendeqt's office. No reasons
for leaving the location, or entering it, need be specified in any permit
From time to time a check is made to determine whether unauthorized
persons are present in the location, and it is only on such occasions that
t I,p. 173.
2G.N. No. 16 of 1962 (S.W.A.), in Official Gazette Extraordinary of Souht West
A/rica No. 2369 (r Feb. 1962),pp. 54-103.
3 Vide G.N. No. 243 of r960 (S.W.A.), in Official Gazette Extraordina.-y of South
West Africa, No. 2287 (14 Dec. 196o), pp. 1178-1227. ·26 SOUTH WEST AFRICA
permits are required to be produced by persons who must, in terms of the
regulations, be in possession of permits to reside in or to be within, the
location.
Permission to reside in, or to be within, the location is as follows:
(a) Residents
Therc are five categories of residential permits, namely:
(i) Residential permits are issued to lteads of /amilies who wish to
rent dwellings erected by the Municipal Council in the location,
for occupation by themselves and their families 1•
(ii} Site permils are issued to heads of /amilies who wish to erect their'
2
own dwellings on sites within the location •
(iii) Residential Certificates are issued to keads of /amilies who wish
to purchase the right of occupation of a dwelling belonging to
the Council 3•
(iv) Lodgers' pamits are issucd to persons, other than holders of any
of the abovementioned permits and their families, who have
obtained suitable accommodation in the location. Lodgers' per
mits are not required by unmarried children (of a lodger) who
reside with. their parent(s) and are under r8 years of age•.
(v) Hostel permits are issued to the inmates of a native hostel situated
within the location 5•
(b) Visitors
Any persan desiring to enter, to be or to re~ain in the location tempo
rarily, is obliged to obtain a visitor's permit 6•
72. Further allegations in the extract are:
"When the location is finished being built any persan who wishes
to go and stay there must make a '-"TÜtenapplication to the Super
intendent. Ali the people who are not so well-to-do will not be allowed
to enter the location to reside there. They will be obliged to return to
the Reserves or else to look for work on the white man's farms. Only
those people will be allowed to reside in Windhoek location who have
been there continuously for three years without absence for even one
7
day ."
These allegations are also untrue. The housing scheme in the new
Windhoek location provides for all income groups, and no restrictions
on the right to obtain residence are based on the finandal position of a
person who wi.shesto hire a house or other accommodation in the location.
In the case, however, where an applicant wishes to erect his own house
or to purchase the right of occupation of a council dwelling, he must
satisfy the Superi.ntendent that he is financially able to do so 8 ,There is
1 Reg, 21, G.N. No. 16 of 1962 (S.\V.A.), in Official Gazette Extraordilxary of
South West Africa. No. 1369 (1 Feb. r962), p. 61.
i Ibid., Reg. 23. p. 6'!.
l Ibid .•Reg. 26,p. 65
• Ibid., Reg. 31 (r), p. 71.
s Ibid., Reg. 44, p. 76.
6 Ibid., Reg. 31 (ri), p. 72. Such control of visitors is necessary to ensure that
undesirable person~ do not enter the locations.
1 l, pp. 173-r 74.
8 Reg. 22 (2) (g) and Reg. 26 (3) (c) rcad with the definition of the words "fi
nancially able" in Reg. 1; G.N. No. 16 of 1962 (S.W.A.), in Official Gaze/te Extraordi
nary of South West Africa, No. 2369 (1 Feb. 1962), pp. ôz, 65 and 55. COUNTER-MEMORIAL OF SOUTH AFRICA 27
no provisjon lirnlting the dght of rcsidence in the Katu_tura location to
such people as have "been there continuously for three years without
absence for even one day" 1•
73. It is correct that in the Katutura townshlp at Windhoek ethnie
grouping is maintained as far as is {racticable. Such ethnie grouping is in
accordance with the traditions o the indigenous population, and ex
perience has shown that the vast majority of the non-White people
prefer to live in an ethnically grouped community. So, for example,
ethnie grouping developed in the old location at Windhoek as a result of
persona! choice of the inhabitants, and without the authorities in any
way forcing it upon them. Experience has further shown that ethnie
grouping within locations is an important factor in the elimination of
group friction and that it facilitates constructive participation by the
inhabitants in the administration of thcir townships.
There is, however, absolute freedom of movement between ethnie
groups within a location, and the allegation: "When a persan wishes to
go from the Ovambo to the Herero section he must apply for a permit and
state the purpose of his visit" 1 is without foundation.
74. With regard to the type and quality of the housing provided at
Katutura, the petitioners complain about the size of houses, their
planning, their amenities and methods of construction. They allege that
the houses have only one door and two windows (one at the front and one
at the back), that there are no doors between the rooms, that there are
_nokitchens or bathrooms, that the construction is dangerous sincc the
houses are made of prefabricated bricks without cernent being used, and
that the distance between one house and another is 6 ft.
The true position is as follows: the minimum size of a plot in the
Katutura townshlp is40 ft. by 70 ft. Different types of houses are erected,
viz., four, three, and two-roomed houses, in accordance with National
Housing Officeplans and specifications. Each house has a kitchen as well
as a Iatrine, equipped with a shower and waterborne sewerage. Therc are
two doors (one at the front and one at the back) and a window for every
room. The size of a four-roomed house is 24 ft.by 2! ft., and the minimum
distance between any two houses is 16 ft. The houses are constructed
according to scientific methods and ail bricks are cemented in.
Failure to pay rent is, in terms of the re~lations, an offence. Though
theoretically possible, arrests are not made m practice for contraventions
in this regard.
75. With regard to the right of occupation of such houses, the alle
gation is made that only a man, his wife, and minor children up to
18 years will be allowed to stay in such houses, while persans over 18
years of age must be housed in compounds 1. These allegations are not
entirely correct. The holder of a valid permit, together with his family,
has the right to occupy a dwelling. "Family" is defined in section Iof the
Regulations as meaning; . ,
''(a) the wife and all unmarried children under the age of 18 years of
such holders ;
(b) all unmarried or widowed daughters of the holder of suchsite
or residential permit who reside with such holder, together
with their children under the age of 18 years; a
1 1,p. 174.28 SOUTH WEST AFRICA
(c) any parent or grand parent of such holder or of his wife who are
dependent upon such holder as a result of old age, weakness or
any other incapacity; and
(d) any other person who, in the opinion of the Superintendent, is
bona fid,~dependent upon such holder 1".
Chlldren over the age of r8 years who do not faI1withln categories (b) or
(d), may still live with their parents, but then a lodger's fee must be paid
and a lodger's permit obtained. Such children may also, if they so elect,
stay in a hostel in the location on a hostel permit.
76. The petitioners further allege that "Anyone living in the location
may not paya visit out of the location for more than 30 days", and that
"If those 30 days expire before he returns his house does not belong to
him any more" 2• This allegation is incorrect. As far as a residential
permit relating to the hire of a house is concerned, the regulations provide
that the holder shall not absent himself from the house or from the
location for a period of more than one month without the written per
mission of the Superintendent. If the holder does absent himself for a
longer period without such permission, his residential permit may (not
must) be cancelled by the Superintendent by giving the holder one
mon th's written notice 3•
77. A number of complaints are levelled against the regulations which
control the building by residents of their own bouses. The allegation is
made that anyonc: who wishes to do so must be a man over 21 years of
age 2•This is not so. Where the applicant is under the age of 2r, a site
permit is issued in the name of this guardian for the period of his minority.
It is fnrther alleged that the applkant must have resided in Windhoek
for three years without having resided anyv,here else. This is not so.
There are no such restrictions on the issue of site permits.
Another allegation is that the applicant must produce an architectural
plan of the proposed building. This allegation is partially correct. The
applicant must submit a properly drawn plan of the proposed dwelling,
approved by the Council'sengineer and medical officerof health 4,but the
plan need not be drawn by an architect. If the applicant wishes to build a
dwelling according to a standard plan of the housing scheme, such a plan
is provided by the Council free of charge 5•
The allegation is furthet made that the applicant must get a health
inspector and an engineer to survey the buildmg plot. This is not correct.
An allotted site is measured and demarcated by the Superintendent 6•
78. The petitioners further allege that:
"When buving the materials the Superintendent will direct where
these materials are to be bought. They may not be bought at the
cheapest place 2."
1 G.N. No. r6 of 1962 (S.W.A.), in Official Gazette Extraordinary of South West
Africa, No. 2369 (1 Feb. 1962), p. 55.
2 I,p. 174.
' Reg. 28 (1),G.N. No. 16 of 1962 (S.W.A.), in Official Gazette ExtraOf'dinary of
South West Africa, No. 2369 (1 Feb. 1962), pp. 66·67.
4 Reg. 22 (2) (i), G.N.No. 16 of 1962 (S.W.A.), in Official Gazette Extraordinary
of South West Africa, No. 2369 (1Feb. 1962), p. 62.
s Ibid., Reg. 22 (3.),p. 62.
6 lbid.,Reg. 23 (6), p. 63. COUNTER·MEMORIAL OF SOUTH AFRICA 29
The fi.rst allegation is only partially correct, and the second allegation
is incorrect. As the Council constructs a large number of houses at the
same time, a substantial reduction in the price of materials is obtained
from certain merchants. Substantial building loans are, on application,
granted by the Council, and one of the conditions of such loans is that
the Council may require that ail building materials be obtained from
a merchant, selected by the applicant from a list approved by the
Council, or that the Council may itself supply such materials, at cost 1•
Where no building loan is required, the Superintendent will, in the
interests of the applicant, nonnally sugl?est where materials may be
purchased. He does not "direct" an apphcant where to buy materials.
It is in the interests of the inhabitants to be able to obtain building
materials of good quality, either from the Council at cost, or from one of
the approved merchants at the reduced prices negotiated by the Council.
79. The petitioners also allege:
"The house must be built by a qualified builder and carpcntcr.
The Superintendent will provide a Supervisor to overlook the work.
This willbe someone of his choice but he must be paid by the person
building the house a sum equal to 5% of the total cost of the building.
The value of the house must be not less than f.250 2."
The correct position is that the construction of bouses in the town
ship must be undertaken by capable building workers approved by
officiais of the Council 3. A supervision fee equal to 2 per cent. of the
cost of the dwelling and outbuildings erected on the site is payable 3•
No dwelling, the estimated cost of which, together with that of the
normal outbuildings, amounts to less than {,roo {R200), may be erected
in the township\
80. The following are further allegations:
"When it is built only the house is yours not the plot on which it
stands. Except for building a kitchen if a permit is granted nothing
can be done on the land outside the house. The rent of this plot of
land will be decided by the value of the house constructed on it.
The house will belong to the person who built it for thirty years
only 2.''
It is correct that inhabitants of the township do not obtain owner
ship of the lots on which they build. The position was the same in the
old location at Windhoek. A residential certificate (for purchasing the
right of occupation) or site permit (for erecting a house) confers on the
holder the right of the sole use and occupation of the site and dwelling
5
thereon for a period of 30 years • At the expiration of this period,
the holder may apply for an extension of the permit or certifi.cate. Such
extension (and further extensions) may each be for a period of 30 years.
1 Reg. 27 (3), G.N. No. 16 of 1962 (S.W.A.), in Official Gazette ExtraMdinary o/
South West Africa, No. 2369 (I Feb. 1962), p.66.
z I, p.174.
3 Reg. 25 (8), G.N. No. 16 of z962 (S.W.A.), in Official Ga.eetteExtraordinary of
South West A/rica, No. 2369 (r Feb. 1962), p.64.
4 Reg. 25 (4), p. 64.
5 Regs. 26 (4) and 23 (r) (a), G.N. No, 16 of 1962 (S.W.A.), in Official Gaz~lte
Exlraordinary ofSouth West Africa, No. 236g (I Feb. 1962), pp. 65 and 62. SOUTH WEST AFRICA
Residential sites and dwellings may be used only for residential pur
poses. In a garden on the site fruit, flowers and vegetables for domestic
use only may be grown 1.
The allegation that the rent of a site will be decided by the value of
2
the house constructed on it , is incorrect. The fees payable for a site
permit are fixed at rgs. 6d. (Rr.95) per month, irrespective of the value
of the house ereckd thereon.
Sr. The concluding portion of the extract here in issue reads as fol
lows:
"We are afraid that the building of this location will bring new
restrictions and oppression upon the people in the towns. For
instance one of the regulations lays down that whenever more than
five people are gathered together a Boardman must be fetched and
asked to remain so that he may know what is being discussed 3."
The fear here expressed is groundless. The regulation mentioned by
the petitioners as an example, viz.-
"... one of the regulations lays down that whenever more than five
people are gathered together a Boardman must be fetched and asked
to remain so that he may know what is being discussed 3",
does not exist. The only regulation applicable to gatherings in the town
ship provides that every person who proposes to convene or address a
public meeting or an assembly of persons shall notify the Superintendent
at least 48 hours before the intended meeting or assembly; and, that if
there are reasonable grounds for believing that any such meeting or
assembly in the location might provoke or tend to lead to a breach of the
peace, the Superintendent may, subject to certain provisions, prohibit
such meeting or assembly 4•The above provisions, however, do not apply
to any meeting or assembly for bona fide wedding, funeral, church,
educational, sport, concert, or entertainment purposes, or for the
arrangement of domestic affairs 5.
82. In view of the exaggerations contained in the extract dcalt with
in the preceding paragraphs, certain tacts regarding the document from
which they have been taken by Applicants may be of interest to the
honourable Court. That document purported to be a statement by
Hosea Kutako et al. which was forwarded to the Chairman of the com
mittee on South West Africa as an enclosure to a communication, dated
22 July 1958, from the Rev. Michael Scott, who stated: "I am sending
the statement to you direct as I am not sure whether you have received
the original 6_" ·
However, the statement sent to the same Comrnittce bv Hosea Kutako
et al., dated 29 July 1958, differcd totally from the conténts of the state
ment fonvarded by the Rev. Michael Scott (and relied on by Applicants)
1 Reg. 23 (3), p.(,2.
2 I, p. r74.
3 Ibid., p.175.
4 Regs. II (1) and 11 (3),G.N. No. 16 of 1962 (S.W.A .), in Official Gazette Extra-
01'dinary of South West Africa, No. 2369 (1 Feb. 1962), pp. 59-6o, read with Proc.
No. 56 of 1951 (S.\V.A.), sec. 32 (2) (r), in The Laws of South West A/rica r95r,
Vol. XXX, p. 160.
3 Reg. II (4), p. 60.
6 G.A ., 0.R., Thfrteenth Sess., SupNo. 12 (A/3906), p. 53. COUNTER-MEMORIAL OF SOUTH AFRICA 31
as far as the alleged location regulations are concerned. The statement of
29 July 1958, though identical in practically ail other respects to the
statement forwarded on 22 July 1958, omitted the allegations relating
to the location regulations here in issue, and substituted a new text in
this regard, differing in al! respects from the previous a1legations 1• ..
rt would accordingly appear as if Hosea Kutako et al. themselvcs
abandoned the rather wild allegations made by, or ascribed to, them
rcgarding the contents of the location regulations in the extract here in
issue, which allegations are nevertheless still relied on by the Applicants.
Paragraph D.3: Extract from a Statement byHosea Kutako et al. Refened
to in Paragraph D.2 2
83. The first portion of this extract purports to be a statemcnt by an
unnamed person, which statement is intended to show the practical
difficulties which wou1d have confronted the said person's mother,
resident in a reservc, if she had heard that he was ill and had wished to
visit him during the illness in an urban arca. The said person is unknown,
and there is no information as to the town in which he was working at the
time.
The author of the statemcnt allcges that his mother would not have
been able to enter the town without a special pass from the location
Superintendent. This is not correct. There are no provisions prohibiting
cntry of Native females into proclaimed urban areas, and Native females
may travel freely without a pass. The author's mother cotdd legaUy have
proceeded /rom the reserve to the urban area withottl being in possession of
any permit. If, howcver, she had nevertheless, for reasons of her own,
wished to have a pass or permit, the \Velfare Officer in the reserve would
have issued it to her. After entry into the urban arca, she would have
been entitled to remain there for a period of 72 hours without a permit 3•
If she had desircd to remain in the urban area for longer than 72 hours,
she would have experienced no difficulty in obtaining permission to
remain in the urban area as a visitor during the period of her son's illness.
84. With regard to the allegations concerning restrictions on the move
ment of Natives within urban areas, the position has been fully dealt
with elsewhere in this Counter-Memorial 4•The allegation in the extract
here in issue to the effect that people working in Windhoek must carry
passes when traveUing to trials, or to pay house rent, or to attend a
burial, need therefore not be dealt with here.
85. The further allegation is made in this extract that: "If you are ill
and are found in the location without a permit from your master or your
doctor you are arrested 2." It is not clear to Respondent what is intended
to be conveyed by this allegation. If a Native is entitled to be within a
location, he cannot be arrested, and the fact that he may be ill is irre
levant. If, on the other hand, he has unlawfully entered the location, he
1 G.A ., O.R., Thirteenlh Sess., SupNo 12 (A/3906), pp.53, 56-57.
2I, p. 175.
3 Proc. No. 56 of 1951 (S.W.A.), sec. 10, in The Laws of South West Africa z95r,
Vol. XXX, pp. rnS-110, as substituted by Ord. No. 25 of 1954 (S.W.A.), sec. 3, in
The Laws of South West Africa r954, Vol. XXXIII, pp. 737-741.
• Vide Book VI, Chap. IV. 32 SOUTH WEST AFRICA
is liable to be arrested, but if he is ill, he will not be arrested. In such
circumstances he will either be allowed to remain on a visitor's permit, or
else be removed to a hospital, if ncccssary, to reccive treatment.
86. The final allegation, viz., that pass carrying is becoming ever
harder, is denied. The matter of passes is dealt with elsewhere in this
Counter-Memorial 1,and it is not necessary to repeat what has been said
there.
Paragraph D.4: Extract from a Communication Dated 17 October1957,
from Mrs. Ka.the von Lobenfelder, Outjo, to the Trusteeship Council 2
87. The allegations in this extract relate to an application by a certain
Walter Willi \Verner Peschel for a permit to enter South West Africa.
In bis application Mr. Peschel allegcd that he was not subject to the
Aliens Act No. 1 of 1937, as he had been born in the Territory in 1918.
Before authorizing the issue of an entry permit, Respondent had to be
satisfiedthat Mr. Peschel's allegation concerning his birth in the Terri
tory was correct. According to Respondent's normal procedure in such
matters, Mr. Pesi:hel was requested to submit documentary proof of
hisbirth within the Territory. Mr. Peschel was, at the time of his appli
cation, a married man with a wife and two children, living in Germany.
In bis application he described himself as a German national.
Mr. Pesche! was unable ta produce documentary proof of bis birth
in the Territory. Normally the submission of a birth certificate is required,
but Mr. Pesche! could not produce such a document, and on investi
gation Respondent found that there was no record of registration of his
birth in the Territory. Mr. Peschel was also unable ta produce any
record of baptism in the Territory, or any other document tending ta
show his presence within South West Africa at the time of his birth, or
at a youthful age.
88. On 2 February 1956 the petitioner, Ka.the von Lobenfelder,
signed a sworn deposition declaring. inter alia,that on 7 January 1918
she gave birth to an illegitimate son in the district of Keetmanshoop,
South West Africa; that, to the best of her knowledge and belief, there
was no persan alive who had been present at the birth; that the birth of
the said son wa~at no stage notified for registration, and that the said son
was not baptized in South West Africa. She further dcclared that the
father of the said son was a certain Paschel, that the said Paschel took
the child to Germany in 1924, and that he had the said child baptized in
Germany as "Werner Paschel" 3•No deposition by the alleged father of the
sai_dillegitimate son was ever submitted, nor was any other documentary
proof forthcoming which could substantiate that the applicant, \Valter
Willi Werner Pesche!, had in fact been bom in South West Africa.
As Respondent's immigration officiais regarded the evidence submitted
as insufficient to convince them that the applicant had in fact been
born in South West Africa, his application for an entry permit, based on
the allegation of his birth in the Terri tory, was not granted.
i I, p.175.
2 Ibid., pp. 175-1 76.
3 A certifiedtranslation of the originaldeposition is filed withthis Counter
Memorial COUNTER-MEMORIAL OF SOUTH AFRICA
33
89. Respondent denies allegations of discrimination against the
petitioner or against Mr. Peschel on the grounds of "apartheid", as is
alleged 1• ln fact, the Administrator of the Territory personally en
deavoured to assist the petitioner in obtaining an entry permit for the
applicant, Mr. Peschel.
· No satisfactory proof having been furnishcd of the applicant's alleged
birth in the Territory, consideration was given to the possibility of
allowing him to enter the Territory as an alien in terms of the Aliens
Act, No. I of 1937 2•Pursuant to the Administrator's efforts, the peti
tioner, K~ithe von Lôbenfelder, was informed that the matter would
receive further attention when it was known whether the applicant's
wife and two children also intended applying for domicile in South
\Vest Africa, and what arrangements would be made to ensure a liveli
hood for the applicant upon his arrivai. This information was essential
to permit consideration of the matter because, although the petitioner
states in the extract here in issue "Being iland owning a farm I would
like to bring my second son here to help me" 3, she was at no relevant
time the owner of a farm. The true position was that she hired part of a
farm at a rentai of f25 per month, hacl lcss tha.n 200 head of cattle,
including calves, and could not always pay the rentai. lt was clear,
therefore, that it would have been impossible for the applicant, his wife
and two chilclren to make a living on the said property. No reply was,
however, received from the petitioner, and no further consideration
could accordingly be given to the matter.
Paragraph D.5: Extract from a Communication Dated 30 August 1960
from Mr. S. Mifima, Chairman,South West Africa People's Organization,
CapeTown, to the Committee on South West Africa
and
Paragraph D.6: Extract from a Communication Dated 3 August 196o
from South West Africa People's Organization, Windhoek, South West
Africa, to the Committee on South West Africa +
90. The two extracts here in issue purport to deal with alleged depor
tations and banishments by Respondent of members of the indigenous
population. A general allegation is made, without specific detail, to the
effect that "people have bcen deported from place to place and banished
from their areas to forests hundred of miles away from their families and
friends", that they have no "means of making a livelihood", and that
"there is no hope of seeing them any more" 1•
91. Respondent denies these allegations, and will reply in detail to
the charges made in the two extracts with regard to specific persons.
In general Respondent states that only foreigners can be deported to
places outside the borders of the Territory. Native inhabitants of the
northern areas who have entered the Police Zone without permission to
1 I, p. 176.
2 In The Laws of South West Africa z937, Vol. XVI, pp. 40-51.
3 1, p. r75.
+ Ibid., pp. 176-177.34 SOUTH WEST AFRICA
remain there, or whose contract periods have expired, can be returned
to their homelands.
MR. LOUIS NELENGANI
92. The allegations made in this regard are incomplete and incorrect.
Louis Nelengani, a Native born in Angola, and subject to the provisions
of the Extra-territorialand Northern Natives Control Proclamation, No.
29 of r935 1,could in terms of such provisions only remain within the
Police Zone while in possession of a proper indentification pass, or an
exemption certifü:ate. Furthermore, he could only remain within the
proclaimed urban area of Windhoek if he was employed there and had
permission to remain there. During July 1960 it came to the knowledge
of the authorities that Louis Nelengani was unemployed, and had no
permission to remain in the urban area. An exemption certificate pre
viously issued to him was then cancelled. He was therefore advised that
he had no right to remain in the urban area of Windhoek, and that,
unless he returned to his place of domicile of bis own accord, he would
probably have ta face a charge under Proclamation No. 29 of 1935 or
under Proclamation No. 56 of 195r, and that, if convicted, he would
probably be repatriated. The al!egation in the extracts here in issue to
the effect that he was deported to Ovamboland, is incorrect. Nelengani
was not deported to Ovamboland, or anywhere else. Neither was he
arrested, nor was any other action taken against him. After being advised
that his presence within the proclaimed urban area of Windhoek was
unlawful, Nelengani disappeared, and it was later ascertained that he
had left the Territory and entered Bechuanaland. He has not returned
since.
Ali allegations with regard to Louis Nelengani contained in the two
extracts, including the annexure to the letter from which the second
extract bas been taken, which are inconsistent with the above statement
by Respondent, are denied. Respondent further denies that any orders
were ever issued by it with regard to action against Louis Nelengani.
The allegations to this effect in paragraph D.6 are therefore denied.
MESSRS. J. KASHIKLIKU AND HERMAN JA TOIVO
93. In paragraph D.5 2it is alleged that the above two Natives were
"kept under hou~e arrest at the chief's kraal". Respondent is unaware
of the identity of the persan called J. Kashikliku. On r3 July 1960 a
certain Jackson Kashikuka, an Ovambo who had entered Walvis Bay
without permission to be, or to remain, within the Police Zone, or the
proclaimed urbar, area, was returned to Ovamboland. Respondent is,
however, unaware of any action taken against the said Jackson Kashi
kuka by the tribal authorities in Ovamboland. The tribal authorities
in the northern Native reserves are vested, inter alia,with criminal
jurisdiction,and have their own powers of arrest, detention and punish
ment. In the excrcise of these powers the tribal authorities function
1
Proc. No. 29 of 1935 (S.W.A.), in The Laws of Soulh West Africa 1935, Vol. XIV,
pp2 r48-r58.
1, p. r76. •
COUNTER-MEMORIAL OF SOUTH AFRICA
35
according to Native law and custom, and are not under the direct
control of Respondent.
If any action was taken against Jackson Kashikuka, it must have been
by the tribal authorities in Ovamboland.
As far as Herman Ja Toivo is concerned, Respondent is aware of the
fact that for a few months Toivo was required to remain at Chief Jo
hannes Kambonde's kraal, and was not allowed during that period to
travel frcely through Ovamboland. This restriction was placed on him by
the tribal authorities of the Ndonga tribe of which he was a member,
as he had held meetings throughout Ovamboland in defiance of the tribal
authorities' decision that he should not do so. Action was thereupon
taken against him under Native law and custom. Respondent denies
that the South West African Administration or Respondent took the
said action.
After a few months the restriction on Toivo's freedom of movement
was withdrawn, and since that time he has freely continued his activities
throughout Ovamboland.
ELIEZER NOAH AND TUHADELENI
94. The author of the extract quoted in paragraph D.5 1, who wrote
from Cape Town, implies that Eliezer Noah and Mr. Tuhadeleni are two
different persans. This is not correct. The two names refer to one persan,
Eliezer Noah Tuhadeleni. Respondent is aware of the fact.that on r4 June
1960 the said Tuhadeleni was arrested by the tribal authorities in his
area because he had hcld meetings in Ovamboland in defiancc of a
prohibition by the said autliorities. Aftcr a trial by the·tribal authorities
he was, as far as Respondent is aware, ordered to movc away from his
normalsphereof operations to the north-eastern portion of Ovamboland.
From the beginning of 1961, however, Tuhadeleni was once more moving
freely throughout Ovamboland and holding political meetings. Respon
dent denies that any action against Tuhadeleni was taken by it or by the
South West African Administration.
MR. PAROLY
95. Respondent has been informed that no person with the name of
Paroly was in the employ of Consolidated Diamond Mines, Oranjemund,
during r960. Nor, so Respondent has ascertained, was any employee of
Consolidated Diamond Mines at any relevant time banished by Con
solidated Diamond Mines officials from his fellow-workers. Respondent
further denies that any action of the nature alleged was taken by it or
the South West African Administration in respect of any employee of
Consolidated Diamond Mines.
2
Paragraph E.1: Extract from the Statement cited in Paragraph D.2
96. Respondent has dealt with the education of Native children on
European farms 3.As shown, there are many difficulties in the way of
1 I,p. r76.
2 ibid.p. 178.
3 Vide Vol. VII. Chap. V, paras12-13,of this Counter-Memorial. SOUTH WEST AFRICA
providing them with an education, but steps have been, and are being,
taken to bring about an improvement in the position, and it is hoped
that the problem will in the course of time be solved.
Paragraph E.2: Extract from a Communication Dated 22 November 1957
from S. Shoombe and 100 other Ovambo to the Secretary-General of the
United Nations 1
97. Respondent has already dealt with the difliculties experienced in
extending education in Ovamboland and in raising the standard of
teaching in that area.
As previously shown, secondary education is now provided in Ovambo
land, and since 196r the minimum requirements for admission to teacher
training schools in Ovamboland have been raised, thus bringing the
position on a par with that obtaining in the Police Zone 2•
As to the statement regarding Chiefs and Headmen, the Applicants
and the persons referred to fail to state that the Government appoints
as Chiefs and Headmen such persons as are the traditional or selected
leaders of their people. It may be true that some of the older men holding
such positions are illiterate,but this merely serves to emphasize that the
history of education in Ovamboland is but a short one. This is a situation
which ought to be readily appreciated by all those who are conversant
with the difficulties of extending modern education to the indigenous
peoples of Africa. From evidence available it would seem that at least
one of the Applicant States, Liberia, experienced similar difficulties in
3
this regard •
The statement that Chiefs and Headmen receive presents from the
Govemment is true, but such presents do not include liquor. Presents
are given when government officiais visit such Chiefs and Headmen,
and the practice is a long-established one. The allegation that presents
are given to bribe Chiefs and Headmen "to allow their young men to
work as unskilled labourers for the Europeans'' 1, is a gross falsehood.
Small presents are given to Chiefs and Headmen in Ovamboland as
tokens of the Government's friendship and respect, and in order to pro
mote friendly relations between these men and the Government. The
giving of such presents to Native Chiefs was, for many years, a cornmon
practice in many countries in Africa.
Paragraph E.3: :Extract from a Communication Dated November 1953
from Miss Margery F. Perham to the Chairman of the Ad Hoc Committee
on South West Africa ~
98. Respondent does not dispute the educational quahlications of the
late Mr. Himumuine as set out in the extract from the letter quoted in
this paragraph. lt is also admitted that he applied for a passport as is
alleged, and that a passport was refused. Respondent considered then,
1 r,p. 178
2 Vide Vol. VII, Chap. V, paras. 27 and 52, of this Counter-Memorial.
3 Ibid.,para. 32 (vii).
4 I,pp. 149-151. COUNTER-MEMORIAL OF SOUTH AFRICA 37
as it still does now, that it would not be in the public interest to make
known its reasons for the refusai of the passport, but it states positiveiy
that the passport was not refused in order to prevent Mr. Himumuine
from furthering his studies, as seems to be the suggestion. The reason
for the refusal was in no way connected with educational matters. CHAPTER III
THE PETITIONERS
r. It has been stated elsewhere in this Counter-Memorial 1 that the
present proceedings before this Court are part of a campaign designed
to bring South West Africa into line with new govêmmental systems
recently established elsewhere in Africa, and to achievc for the whole
of the Territory majority rule by the Native population. This campaign
originated in the spirit of African nationalism which has swept the
African Continent in the post Second World War pcriod. The campaign in
respect of South West Africa bas been encouraged and organized by
sources outside the Territory. In fact, encouragement has reached a
point of incitement to violence. So, e.g., petitioners at the United Nations
Organization have been assured that ail possible help would be given to
them to attain their political objectives,whatevermethods they resortedto,
including armed insurrection 2•
2. The objectives of this campaign, as envisaged by certain of the
petitioners, have been put bluntly by Mr. Mburwnba Kerina, one of the
prime movers in the campaign, who for many years has appeared as a
petitioner at the United Nations 3 and has played a major part in
suggesting action to his local associates in the Territory, including a
number of the petitioners relied on by Applicants in Chapter VI of their
Memorials.
1 Vide Book IV.
2 Vide,for example, statement by Mr. Guellal (Algeria) bcfore the Fourth Corn·
mittee on 6 Nov. 1962 in G.A., O.R., Sevenleenth Sess., Fourlh Comm., 1374th
Meeting, 6 Nov. 1962, p. 294.
3 Kerina, at one -:ime also known as Getzen, appeared before the Fourth Commit·
tee as a petitionerat the following meetings over the period Dec. 1956 to Dec. 1961:
11th Session, 571st Meeting, 11 Dec. 1956, p. 107; uth Session, 572nd Meeting,
II Dec. 1956, pp. 111-rr4; 11th Session, 574th Meeting, 13 Dec. 1956, p. IIg; 12th
Session, 653rd Mee·ting, 26 Sep. 1957, p. 11; 12th Session, 654th Meeting, 26 Sep.
1957, p. 17; 12th Session, 655th Meeting, 27 Sep. 1957, pp. 19-23; 13th Session,
749th Meeting, 6 Oct. 1958, pp. 32-37; 13th Session, 750th Meeting, 7 Oct. 1958,
p. 37; 13th Session, 751st Meeting, 7 Oct. 1958, p. 39; 13th Session, 754th Meeting,
9 Oct. 1958, p. 51; 13th Session, 755th Meeting, 9 Oct. 1958, p. 54; 14th Session,
904th Meeting, 12 Oct. 1959, p. 110; 14th Session, 908th Meeting, 14 Oct. 1959, p.
130; 14th Session, 909th Meeting, 14 Oct. 1959, pp. 135-136; 14th Session, 910th
Meeting, 15 Oct. 1959, pp. 137-140; 14th Session, 9uth Meeting, 15 Oct. 1959,
p. 141; 14th Session, 913th Meeting, 16 Oct. 1959, p. 154; 14th Session, 1001st
Meeting, II Dec. 1959, pp. 699-701; 15th Session, 1051st Meeting, 15 Nov. 1960,
pp. 308-3rn; 15th Session, 1052nd Meeting, 15 Nov. 1960, p. 314; 15th Session,
1053rd Meeting, 16 Nov. 1960, pp. 317-318; 15th Session, 1054th Meeting, 16 Nov.
1960, pp. 322-324; 15th Session, 1055th Meeting, 17 Nov. 1960, pp. 325-327; 15th
Session, 1056th Meeting, 17 Nov. 1960, p. 330; 15th Session, 1098th Meeting, g
Mar. 1961, p. 5; 1sth Session, nooth Meeting, 10 Mar. 1961, p. 13; 16th Session,
1217th Meeting, 20 Nov. 1961, pp. 377-379; 16th Session, 1221st Meeting, 22 Nov.
1961. pp. 401-405; :;:6th Session, 1222nd l\leeting, 23 Kov. 1961, p. 409: 16th Session,
1223rd Meeting, 24 Nov. 1961, pp. 414-417; 16th Session, 1241st Meeting. 7 Dec.
1961' p.549. COUNTER-MEMORIAL OF SOUTH AFRICA
39
In a letter dated 5 l\~arch 1959, sent by Kerina from New York to
John Muundjwa in South West Africa, the aims of the said campaign
were described as follows:
"I t is time for us to make our position clear to the White Settlers in
South West Africa. South West A/rica is an A/rican co·untryand must
be subfect to the government o/ the A/ricans. Let the Whites and the
Coloureds in South West Africa stop deceiving themselves. Let them
stop thinking that Africans are underdogs in the land of their birth
and as such should not be considered as human beings. Let the stupid
A/ricans and Coloured agitators such as Kloppers, etc., etc., encouraged
by deceptive White Settlers stop preaching multi-racial or partnership in
South West Africa at the expense of the A/rican people. We have had
enough of these nonsense. Ottr position should be made clear to the
Whites. We want South A/rica back no more no less . ..
If we must have our freedom we must be strong and be well
organized. The Whitcs in South West Africa are in constant fear
because of what is happening in other parts of Africa. They know
that South West Africa is next ... Look at the Mau Mau today,
they are represented in the Government and soon they will govern
the1r own country. The strength of the few educated men in S.W.A.
lies among those of our people we call ignant masses without their
support no so-called educated men in S.W.A. will succeed ... Join
Toivo] a Toivo in his struggle for our peoples freedom, .. .1''(Italics
added.)
To another associate in the Terri tory, Toivo Ja Toivo 2 Kerina wrote
as follows in a letter dated g February 1959: "Believe me South West
Africa will become free by aHmeans 3.''And, in a let ter dated q February
1959: "Together we shall smash those Whites out of the Government
without using force but our brains 4."
On 16 September 1959, Kerina wrote to another associate, Sam Nujo
ma:
"I plan to base my statement on the necessity of legal action and
make a strong plea for an independent African State to take this
case to the International Court of Justice for a compulsory judg
ment .... I shall send you more information as it becomes available
and when it does reach you please act forcefiûly and violently in the
positive sense of the word ...
Of course we inevitably have differences but at the moment the
immediate objective of ridding ourselves of the Boers is paramount 5."
(Italics added.)
3. With regard to the methods by which the said campaign was, and
is, conducted, certain lines of action in both the domestic and interna
tional spheres have been diligently pursued. Consistent efforts have been
made to create interna! dissatisfaction by organized incitement, but an
even greater effort has been made to build up international pressure and
1 Kerina to 1lfaundjwa, 5 Mar. 1959. (Photostat copies of the letter quoted in thîs
footnote and the letters quoted hereafter are filed with this Counter-Memorial.}
2 The petitioner in extracB.6 at I,p.170 and Teferred to as Herman Ja Toivo in
extract D.5 at I, p. 176.
' Kerina to Toivo fa Toivo, 9 Feb. 1959.
4 Ibid., 14 Feb. 1959.
5 Kerina to Sam Nujoma, 16 Sep. 1959. SOUTH WEST AFRICA
to seek international intervention. In the international sphere it was
evidently considered that the efforts of petitioners at the United Nations
Organization could only be successful if the world could be made to
believe that the indigenous population of South West Africa was being
subjected to ruthless suppression, and that atrocities against them were
being perpetrated with impunity.
The contents of letters addressed by Kerina to his associates within
the Territory indicate clearly the methods adopted to further their cam
paign. Extracts from these letters are set out below:
(a) Letter to ToivoJa Toivo, datedr4 Febrnary r959:
"Please Toivo, do this organize an Ovamboland People's National
Congress make all the Chiefs of various tribes the Vice-Presidents.
In other words make them First Vice-President, Second Vice-Presi
dent, Third Vice-President, etc., etc., etc., this will break the inter
tribal rivalry that may corne about. Be the General-Secretary of the
Congress. Be very shrewed. Work with the nominated Chiefs very
carefully. Pretend as if you are with them. But also take into
serious account the other promising young people and Elders and
please make Father Hamtumbangela the President of the Congress.
The ftrst tas:< of the Congress should be a petition to the Prime
:Minister of South Africa with copies to the Windhoek Advertiser,
New Age, United Nations, Cape Times, and a copy to me, the
American Committce on Africa, Africa Weekly, Rev. M. Scott 1,etc.
This petition should ask jour things. Of course a copy should be sent
to the Chief Native Commissioner. These four things should be as
follows: Ask for-
(a) Direct African and Coloured People representation in the
Govemment of South West Africa.
{b) Introduction of Unt"versal Sa/rage in South West Africa
irrespective of Colour, Creed, Religion and National Origin.
(c) Immediate liquidation of South West Africa Representation
in the Parliament of South Africa.
{d) lmmediate placing of South West Africa under the United
Nation~ Trustecship System.
Toivo, I urge you not to accept part of these demands. Tell the
Prime l\Iinister of South Africa that you want ail four to be granted
and no compromise whatever. Please remember Toivo, I will play
this up here at the UNO. But to make it effective, the Congress should
petition the President of the United States Government and the
Prime Minister of Russia for immediate Afilitary Action against
South A/rica collectiveJy or individually to enforce the decisions and
authority of ihe United Nations. Boy this will make the British to
even force South Africa at the UNO to place South West Africa
under the Trusteeship because they are afraid of Russia. But if you
want me to draft this petitions please inform me, because they have
to be legal and specific and also non-commital on our part. I can
consult with some of my legal friends hereA copy shall be sent to the
UNO and other sources for a world wide publicity. This will take
the Whites in South West Africa by complete surprise. However,
remember one thing. By fear and surprise and desperation these
1 The person referred to in parD.iat 1, p. 173. COUNTER-MEMORIAL OF SOUTH AFRICA
Whites will corne to you to talk about the danger of communism if
we invite Russia to take military action and the United States as
well. Our answer to these Whites should be. We have for IJ years
petitioned the UNO. We have repeatedly informed the Union of
South Africa of our wishes, and our freedom. Instead the South
African Government continue to remove us from our lands by force.
Suppress us ruthlessly etc. Worry about communism in Europe,
not in Africa. In Africa it will be first African Freedom, before we
worry about communism. If communism has to help us in South
West Africa to achieve this freedom. It is welcome. Our people have
no ammunitions to fight against South African Policy and army. So
if Russia and America can corne to do the job for us. We invite them.
Please Toivo digest these few points. They may sound less forcefull
but that is just the point. They have power. I shall play the ball here
at the UNO. I shall also suggest that representatives of the African
people from South West Africa be invited to the UNO. At the UNO
we shall stand together. Just tell our people in Ovamboland to keep
together and not to say anything. If those nominated Chiefs say a
word tell our people to burn their places at night secretly of course.
Toivo, do not worry. I will build you up if you promise to keep my
name alive before our people. There are 200,000 people in Ovambo
land more than the rest of the territory. Fear not my friend. Kozong
wizi is also working hard in the South, together we shall have more
than300,ooo Africanpeople behind us. Together weshall smash those
\Vhites out of the government without using force but our brains.
Believe me Toivo, if we do not do this, our struggle will remain
stagnant. We must do something if we have to be frce. \Ve have
nothing to loose or to fear. All that we want is just strong men to tell
the \Vhites in their faces what we think of them and what we want.
You are one of those men and Kozongwizi is another one of our
comrade. Listen the two petitions to the big boys should be timed. They
should reach them just a month be/ore the UNO Assembly start so that
1
the malter could become a world wide one ." (ltalics added.)
(b) Letter to ToivoJa Toivo, dated 2I April I959:
"Listen Toivo, Kozongwizi escaped from S.\V'.A. He is now in
Ghana. We are trying to get him over to the U.S.A. to appear before
the UNO.... In the meantime just keep quite, work very quietly, do
not take part in any open political activities; those Boers are after
you ... Do not talk in public, talk behind the scenes. Befriend those
nominated Chiejs, pretend as ifyou like them.
I am working hard on the 2 Big Boys petitions. I am sure we'll get
them through ... This year must bring our freedom or not at ail ...
This Assembly will not pass without anything done. You would
see as soon as those 2 Big Boys receive the petitions S.A. will be
shocked 2." (Italics added).
(c)
Letter toKapuuo, dated 30 April I959:
"I am a little worried because no western country will ever do
anytlùng for us to liberate our people. However, Mr. Toivo requested
me to draft few petitions for the Ovamboland P. Congress and also to
1 Kerina to Toivo Ja Toivo,r4 Feb. r959.
2 Ibid., 2r Apr. r959.42 SOUTH WEST AFRICA
consult (no va Russa) they are the only one who could do something
for us to have this question solved. I am sure that now that I have
Kozongwizi hy my side our efforts here will proof effective. I am
arranging for Kozongwizi and I to meet with (no va Russa) privately
to see as to whether they could help us. But, please if we take a stand
in that direction here, stand firm ail of you at home and support us.
Your position should be very simple, e.g.:
'Y our petùioners to the UNO are the only one authorized to take
measures that would help to solve the question and that you have nothing
to say public/y until you hear /rom them.' " (Italics added.}
{d) Letter toSam Nujoma, dated I6 September I959:
"\Ve anticipate great difficulty in this UNO General Assembly
session because ail indications arc that the South African Govern
ment will corne forward with a few conciliatory proposais which will
sound good and irnpress some but rnean absolutely nothing. We have
also to be wary of those who are willing to go too far in thcir com
promises just to get some solution or quasi solution to the problem.
We should adamently fight all those unaceptable ideas ... I shall
send you mo:reinformation as it becomes available and when it does
reach you p!ease act forcefully and violent/y in the positive sense of the
word ....
After careful and thoughtful consideration of our situation I think
it is advisable for you Mr. Nuyoma and your friends to think about
the possibility of turning your organization into a full fledge national
organization representing every body in the whole territory. I
further suggcst that it would be to our advantage ifyou can change
the name of the Ovamboland Peoples' Organisation to The South
West African National Congress. This can mean that we who are
representing you at the UNO now have power behind us. It was very
good to start with a regional organization but now your tactics
should be geared to the achievement of something greater for South
West Africans. Other African states would support us strongly if we
can have such a national organization. Please do inform the UNO if
you change the name of the present organization to that of S.W.,
African National Congress, this is very important for our position
here. J am sending you under separate cover a copy of a constitution for
the Congress that 1 have proposed and a manifesta to be distributed
widely if you approve of the idea 2." (Italics added.}
(e) Letter to Sam Nujoma, dated 25 September I959:
"Mr. Nujoma, continue to attack the Government openly in
public. Do not stop. In the meantime, as soon as J think of something
important I will inform you. Refuse to m'oveto the new location. Tell
the people not to move. I will send you a statement which yoi, should
read to them ,md translate t"tinto Ovambo, Herero, Nama, etc.
Also try to organize Mass Public Meetings every Saturday. Talk to
the people tell them to stand together .'' (Italics added.)
1 Kerina to Kap-uuo,30 Apr. 1959.
2 Kerina to Sam Nujoma, 16 Sep. 1959.
3 Ibid., 2Sep. 1959. COUNTER-MEMORIAL OF SOUTH AFRICA 43
(f) Lette, /rom Kerina in New York toSam Nujoma, dated I7 OctoberI959:
"Do not move /rom the location. Refuse completety 1." {Italics
Added.)
(g) Lette, to Toivo Ja Toivo, dated I7 November I959:
"I am working with the African States on this malter and I have
ofjered my assistance if they so desire to help them to gather legal
evidence with regard the case. Everything is going on welL I think one
of the African States wants me to go to their country to work with
them on this case. I will inform you on this as soon as I have every
thing clear. ...
Toivo, listen. I have been urging Mr. Nujoma to change the name
of Ovamboland Peoples' Organization into the Soi.th West African
National Congress. This will give the organization a national charac
ter which can be of great use to our position here. I have also drawn
up a draft constitution for him for this purpose. He informed me recent
lythat this Congress will be formed next year. Would you please get
in touch with him and tell him that he should try to see that you
Toivo or Him be the president. Or one of you the President and a
Herero a Vice-President etc. You see what I want to say is that do
not allow the OPO when it is changed into the S. W. African National
Congress to be dominated by other groups. Be very careful about this
very much. But please even if other groups do not want to co-operate
with the OPO to form the Congress just go ahead and change the
OPO to the new Congress. Please write or talk to Mr. Nujoma about
this and keep it very secret do not tell any one of this idea it should
just between you two 2." (Italics added.)
(h) Letier toSam Nujoma, dated 9 December I959:
"On the subject of location removal we can only advise you to continue
in your etJortstoencourage the People in their firm attitude not to move.
On such an issue as this, on which the people must maintain their unity
and firmness, our whole case can be established or lost. We must stand
united and refuse to move. If the administration is forced to use
violence they will show their true character to the world. We do not
want to see one drop of African blood shed, but we must face that
possibility and makc the most of it. There is one thing which help
and which we suggest be commenced immediately. That is this.
Each person whose bouse is evaluated and who is forced to sign
should individually send a petition on behalf of his family (stating
the number of people involved) to the UNO stating the date on
which the evaluation is made, his determination not to go; the
unreasonableness of the govt; and his knowledge that African blood
is about to be shed because the Administration is determined to
move the people by force.
You must stress the urgency of the situation and the fact that
U.N. is being informed so that this ultimate conflict can be avoided.
Severa! hundred petitions should (food the U.N. immediately ! ! We
leave the rest to you-please also inform the people at Walvis Bay
to follow this same course. As many petitions as possible should be
despatched to U.N. as soon as possible. ...
1Kerina to Sam Nujoma, t7 Oct. 1959.
2 Kerina lo Toivo fa Toivo,17 Nov. 1959. SOUTH WEST AFRICA
44
What we think is needed is an effectively functioning outside
organization as well as active territorial organizations which can co
ordinate objedives and programs so that we can obtain maximum
benefit from every situation which will arise, it is imperative that
we fight this battle on all fronts (1) In the territory (2)At the U.N.
and (3) Among our African brothers 1." (Italics added.)
4- As will have appeared from Kerina's letters 2,one Kozonguizi had
joined him in New York durin~ 1959. The contents of some of Kozongui
zi's letters to his associates within the Territory are also relevant with
regard to the methods to be followed in the campaign. Sorne extracts are
cited below.
(a) Letter toSam Nujoma, date<lI4 September I959:
"Please try to organise people at home:
(r) Against the Removal of the Location;
(2) Hold a big S.W.A. Day to coincide with our petitioning the U.
Nations.
(3) Give me more information about Rev. Hamtumbangela and
Toivo in Ov'land 3."
(b) Letter to Louis Nelengani 4, dated I2 OctoberI959:
"Montlay we shall be commencing with the battle at the United
Nations. Louw made a statement but I don't think he will be
present to hear us-he said he shall be leaving on Montlay. But Van
der Wath will stay on a little while. He is also going to make a
statement. But we shall blast him. We have a team of seven. Rev.
M. Scott, Mburumba Kerina, Hans Beukes, Emery Bundy, S. Bull,
Al Lowenstein and myself. And we shall all blast them like anything.
Keep up the Light-Work, Work, and Work-that is what we have
to do 5."
5. The above extracts afford clear proof of a campaign against Re
spondent's administration-a campaign involving incitement and intimi
dation of the indigenous population of South West Africa, the organi
zation of incidents within the Territory which could be "played-up" on
international platforms, large-scale transmission to the United Nations
ofpetitions, in some cases drafted in New York and sent to the Territory
for signature by local associates, and the seeking of military intervention
by other States.
6. It is also clear from the above extracts that the campaign further
involved the creation of organizations which would appear to have
widespread suppc,rt within the Territory. As will be indicated below, a
number of oolitical organizations were accordingly founded.
(a) In 1958 Toivo Ja Toivo founded the Ovamboland Peoples Congress.
After Kerina's letter referred to in paragraph 3 (a) above, the name
Ovamboland Peoples Congress was, in April 1959, changed to the
Ovamboland Peoples Organization {OPO), with Sam Nujoma as
President. After Kerina had suggested 6 that a name which denoted a
1 Kerina to Sain Nujoma, 9 Dec. 1959.
2 Vide para. 3 (c), supra.
3 Kozonguiri to S,im Nufoma, 14 Sep. 1959.
• The person referred to in para. D.6 at I, p176.
5 Ko::onguiri to Lmis Nelengani, 12Oct. 1959.
6 Vide para. 3 (d), supra. COUNTER-MEMORIAL OF SOUTH AFRICA 45
national rather than a regional organization would suit his purposes
better at the United Nations, the name of the Ovamboland Peoples
Organization was changed to the South West Africa Peoples Organi
zation (SWAPO) in June 1960. Messrs. Nujoma, Kerina, Louis
Nelengani and Toivo Ja Toivo were some of the prominent leaders
of this organization.
Other petitioners who feature in the extracts relied on by Appli
cants and who had close links with the upper command of SWAPO
included Messrs. Mifima 1, Shoombe 2and Headman Hosea Kutako.
Hosea Kutako appointed Kerina as his representative overseas, and
made a practice of sending petitions to the United Nations in
collaboration with SWAPO.
(b) In 1959 Kozonguizi, at the request of the Rev. Michael Scott 3,
was sent to the United Nations as the persona! representative of
Hosea Kutako ~-After his departure, the South West Africa National
Union {SWANU) was launched during August 1959 with the assis
tance of Kapuuo \ the deputy of Headman Hosea Kutako. Ko
zonguizi was elected President and became the spokesman for the
Organization at the United Nations. Louis Nelengani, the Vice
President of the Ovamboland Peoples Organization 5, was elected
National Treasurer of SWANU, and Sam Nujoma 6, the President
of OPO, and John Muundjwa 6 were also elected to the National
Executive of SWANU.
(c) A third movement was also originated with the same objectives as
SWAPO and SWAN U, namely SWANIO (South West Africa
United National Indcpendence Organization}. Two of the members
of this organization are the petitioners, the Rev. Markus Kooper 7,
at present its representative at the United Nations Organization,
and Mr. Johannes Dausab, of Hoachanas 8•
7. ln order to influence international opinion, the leaders of the afore
said campaign adopted a system of flooding the world in gencral, and the
United Nations Organization in particular, with continuons allega
tions of suppression and atrocities allegedly committed by Respondent.
This was done mainly by the submission of written and oral petitions
to the United Nations Organization. In this way there came into being a
group of what may be called "profcssional petitioners". These petitioners
are united by their common purpose to end Respondent's administration
of South West Africa "by all means" 6, to "smash the Whites out of the
Government" 6,to "get South West Africa back no more no less" 6 •
As can in the circumstances be understood, these petitioners will find
fault with, and will detect ulterior motives in, every act of Respondent's
administration. They constantly scheme and devise means to bring
Respondent's administration into discrcdit, and, as the above review
1I, para. D.5, p. 176.
2 Ibid., para. E.2,p. 178.
3
Vide paras. 3 (a) and 4 (b), supra.
• Ibid., para. 3 (c).
5 I, para. D.6, p. 176.
6 Vide para. 2,supra.
7 I, para. C.r, p.170.
a Ibid., para. B.2,p. 168; para. B.3, p. 169; para. C.4, p. r7r; para. D.1, p. 172. SOUTH WEST AFRICA
has shown, are prepared to distort the facts and to present a false picture
in their petitions to "flood the U.N." 1•
8. It is submitted in the light of the aforegoing that the majority of
the petitioners relied on by Applicants cannot be regarded as a '\vide
variety of independent sources".
1 Vide para.3 (h), supra. SECTIONB
ALLEGEDVIOLATIONSBY RESPONDENTOFARTICLE4
OFTHE MANDATE
CHAPTER I
STATEMENT OF THE LAW
I. Applicants, in their Submission 6, request the Court to declare
that-
"the Union, by virtue of the acts described in Chapter VIl herein,
has established military bases within the Territory in violation of its
obligations as stated in Article 4 of the Mandate and Article 22 of the
Covenant; that the Union has the duty forthwith to remove all such
military bases from within the Territory; and that the Union has the
duty to refrain from the establishment of military bases within the
Territory; 1".
2. Article 4 of the Mandate, to which reference is made in the said
Submission, read as follows:
"The military training of the natives, otherwise than for purposes
of internai policeand the local defence of the territory, shall be pro
hibitcd. Furthermorc, no militarv or naval bases shall be established
or fortifications erected in the territory."
Although the complaint made by Applicants is confined to an alleged
violation by Respondent of the prohibition against the establishment
of military bases-contained in the second sentence of Article 4-it is
dcsirablc, with a view to a proper apprcciation of the scope of that
prohibition, to have regard to all the provisions concerning military
activities contained in the Article, read in conjunction with the provi
sions of the Covenant.
3. Article 22 (6) of the Covenant providcd that territories such as
South West Africa could-
" ... be best administered under the laws of the Mandatory as inte
gral portions of its territory, subject to the safeguards above
mentioned in the interests of the indigenous population".
The said "safeguards" were those mentioned in Article 22 (S), which
providcd, in so far as is here relevant, for the administration of man
dated territories under conditions which would guarantee, inter alia-
"... the prevention of the establishment of fortifications or military
and naval bases and of military training of the natives for other than
police purposes and the defence of territory ... "
4. The abovementioned safeguard, which was reflected in Article 4
of the Mandate for South West Africa, was no doubt conceived in the
1 1,p. r98, SOUTH WEST AFRICA
interests of the indigenous population so as to prevent their military
exploitation by the Mandatory. It was probably also intended to prevent
the Mandatory from using the mandated terri tory as a base of aggression,
by training large Native armies, or by establishing military or naval
bases in the Territory. Rcspondent submits, however, that the Covenant
and Article 4 ot the Mandate were clearly not intcnded to render the
mandated territory incapable of local defence, or to make it impossible
for Respondent to act in defence of the Territory. The duty-and the
right-to defend the Territory, is that of Respondent, who has, in terms
of Article 2 of the Mandate, full powers of administration and leg:islation
in respect of the Territory, and who is responsible not only for the
maintenance of order in the Territory, but also for its safety.
5. That the purpose of Article 4 was as stated above, appears also
from its specific provisions. Thus the first sentence of the Article was
concerned only with the military training of Natives, and prohibitcd
such training only if it was for purposes other than "internai police and
the local defence of the Territory". The only possible construction of
this provision is that the Mandatory was permitted to afford milîtary
training to Natives for the purposes of internai police and local defence.
And, inasmuch as the Article contains no provision rcstricting the miJi.
tary training of persons otherthan Natives, such persons could be trained
for any lawful purposc.
6. The correctness of the construction of the first sentence of Article
4 as set out in the aforegoing paragraph, is demonstrated by the history
of cvents and proposais before and during the Paris Peacc Conference, as
related in this and the following paragraphs.
Gcneral Smuts, in his plan for a Lcague of Nations issucd in December
1918, proposed the idea ta make it impossible for Mandatory States to
form "... military forces beyond the standard laid down by the League
for purposes of internai police" • President Wilson had set forth two
principles:
"First, armament of aHStates 'willbe reduccd ta the lowest point
consistent with domestic safety.' ... That is, troops were to be
raised merely to maintain internai order.
Second, the Powers which werc to have mandatory rights over
these undeveloped peoples were to act as trustees for them and not to
benefit from their trusts. If troops were to be raised in colonies they
were to be used for the benefit and protection of the people of the
colonies and not for the benefit of the power that held the mandatory
[sic]1."
After studying the plan of General Smuts, President Wilson proposed
that:
"The manda tory State or agency shall in no case form or maintain
any military or naval force in excess of definite standards laid down
1
by the League itself for the purposes of internai police .''
7. During the discussions at the Peace Conference, the above proposals
were considerably broadened in their aspects of what would be per-
1
2 Baker, R. S.,Woodrow Wilson and World Settlement (1922-1923), Vol. l, p. 424.
Ibid.,p.425. COUNTER-MEMORIAL OF SOUTH AFRICA 49
missible to the Marnjatories. France in particular objected to any idea
of severely limiting the Mandatories' rights in this regard 1•
In the draft submitted by Mr. Lloyd George on 30 January I9I9
provision was made for military training for the purpose of "defence of
territories" apart from military training for "police purposes". The
draft provided:
"The mandatory must ... guarantee the prohibition of ... the
arms traffic ... and the prevention of the establishment of fortifi
cations or military or naval bases, and of the military training of the
natives forother than police purposes and the defense ofterritories 1."
8. The intended scope of this draft provision was discussed in the
Council of Ten, and as a result of questions by the French delegatc,
M. Clemenceau, Mr. Lloyd George said:
"... there was nothing in the clause under review to prevcnt volun
teer forces being raised. The words used were: 'For other than police
purposes and the defense of territory.' He really thought those words
would cover the case of France. There was nothing in the document
which would prevent hcr doing exactly the same thing as she had
done before. What it did prevent was the kind of thing the Germans
were likely to do, namely, to organizc great black armies in Africa,
to be used for the purpose of clearing everybody else out of that
country ."
And he concluded by saying: "There was nothing in this document
which would prevent France raising an army for the defense of her
territories 3."
Further debate on the matter is recorded as follows:
"M. Clemenceau said that if France had the right in the event of a
great war to raise troops in African territories under her control, he
would ask for nothing more.
Mr. Lloyd George replied that France would have exactly the
same rights she had previously enjoyed. The resolution proposed by
him was only intended to prevent a mandatory from drilling ail the
natives and from raising great armics.
M. Clemenceau said that he did not want to do that. Ail that he
wishcd was that the matter should be made quite clear, and he did
not want anybody to corne and tell him afterwards that he had
broken away from the agreement. If this clause meant that France
had the right to raise troops in the African territories under her
control in case of a gencral war, he was satisfied.
Mr. Lloyd George said, that so long as M. Clemenceau did not
train big nigger armies for the purposes ofaggression, that was an the
clause was intended to guard against.
M. Clemenceau said that he did not want to do that. He therefore
understood that Mr. Lloyd George'sinterpretation was adopted.
President Wilson said that Mr. Lloyd George'sinterpretation was
consistent with the phraseology.
----- M. Clemenceau said that he was quite satisfied 4."
1 Baker, R. S., Woodrow Wilson and World Setllement (1922-1923), Vol. I,
pp. 426-432.
2 Ibid., p426.
3 Ibid., p427.
• Ibid., p428.50 SOUTH WEST AFRICA
It is also recorded tha t :
"It was agreed that the acceptance of the resolutions proposed by
Mr. Lloyd George would not prevent mandatories from raising
volunteers in the territories under their control for the defense of
their countries in the event of their being compelled to attack ."
Whatever doubt there may have been as to whether a Mandatory should
be entitled to train the Natives of a mandated territory for the defence
of its other possessions, there was, as the record shows, no doubt that a
Mandatory was to be entitled ta train the inhabitants of a mandated
terri tory (including the Natives) for the dcfence of that mandated territory.
9. In the premises aforestated, Respondent submits that the first
sentence of Articie 4 of the Mandate and the corresponding provisions
in the Covenant, perrnitted the military training of the inhabitants of
the mandated territory (including the Natives) for the purpose of internal
police and local defence of the Territory.
IO. The second sentence of Article 4 of the Mandate prohibited, inter
alia, the establishment of "military bases" in the Territory. Neither the
Covenant of the League of Nations nor the Mandate contained any
defmition of the terrn "military base". The following definitions are
given in well-known dictionaries:
(a) Webster's Complete Dic#onary of the English Language (New ed.
of 1880), p. III.
Base (military): ''Atract of country protected by fortifications,
or by natural advantages, from which the operations of an
army proceed."
(b} Webster's New International Dictionary of the English Language
(2nd ed.), p. 15.
Base (mihtary and naval): "The locality on which a force relies
for supplies (base of supplies), or from which it initiates opera
tions (base of operations); as, a submarine base."
(c) The Shorter Oxford English Dictionary on Historical Principles
(3rd ed.), p. 150.
Base (military) : "The line or place relied upon as a stronghold
and magazine, and from which the operations of a campaign are
conducted."
A common feature of these definitions is that a base is something utilized
by a force or an "rmy for the purposes of operations or a campaign. The
utilization may be either-
(i) as a starting point for the operations or campaign, or
(ii) as a source of supplies required for the operations or campaign, or
both.
Consequently, failing the purpose of utilization for operations or a cam
paign, actual or p-rospective,by a force or an army, a place cannot be said
to be maintained as a military or naval base.
In the light of the foregoing it is submitted that the term "military
base" does not include a military training camp which is used only for
purposes of the military training of recruits. It is clear that such a camp
would not have the essential feature of a militarv base, viz., utilization
for operations or a campaign by a force or army. Furtherrnore, whereas in
1 Baker, R.S., Woodrow Wilson and World Settlement (1922-1923),Vol. I,p.428. COUNTER-MEMORIAL OF SOUTH AFRICA
SI
terms of Article 4 military training is pcrmissib1e, and wou1dindeed faU
withln Respondent's duties, it is inconceivable that the prohlbition
against military bases was intended to extend to ordinary military
training facilities.
II. Support for the aforestated contention is found in the practice
of other Mandatories during the lifetime of the League of Nations.
Practically all the African territories under mandate had considerable
permanent military forces stationed withln their boundaries, and trained
Natives for police and local defence purposes. These territories had
facilities for their military forces, for military training, and for supplies,
maintenance, armament, matcrial and transport. And although military
activities in these territories often formcd the subject of discussion in the
Permanent Mandates Commission 1, it is significant that it was never
suggested in the Commission or in the League Council that the Manda
tories concerned had, in prm•iding the said facilities, cstablJshed "military
bases" or "fortifications" in violation of the military clauses in their
Mandates, which were the same as Article 4 of the Mandate for South
West Africa.
12. As an example of the military activities of other mandated terri
tories, Respondent refers to the case of Tanganyika, a British Mandate.
It appeared during the Eighteenth Session of the Permanent Mandates
Commission, held in June 1930, that in Tanganyika two battalions of
troops were divided into detachments as small garrisons, and that one
battalion in reserve was concentrated at a single point where it could
devote itself entirely to training. M. Palados, a member of the Permanent
Mandates Commission, asked whether this constituted a military base,
but the reply was that the scheme did not constitute a military base 2•
The Commission was apparently satisfied with the answer given, and the
scheme was not criticized in any way.
13. Applicants, in charging Respondent with a violation of Article
4 of the Mandate, contend that Respondent maintains thrce "military
bases" within the Territory of,South West Africa. This contention is
based upon their formulation of the following legal propositions rcgarding
the provisions of Article 4:
"Anned installations not related to police protection or internai
security fall within the class of 'military bases' or 'fortifications' and
are therefore prohibited by Article 4 of the Mandate. Facilities for
police or internai security purposes are permitted, but no military
bases. The type of facility, its location, armament, equipment,
organization and place in the Union's administrative hierarchy and
chain of 3ommand determine whether it is a military base or forti
fication ."
Although Applicants, in the Jast sentence of this formulation, refer
to various considerations which could determine whether a particular
facility isor is not a "military base" or "fortification", thcy appear to
ignore all these considerations in their application of the law to the
1 Vide, e.g.P.M.C., !\lin.III, p. 142; IX, p. 147; XIII, p. 147; XIV, p. 127;
XV, p. 110;XVIII, p. 34.
2 Ibid., XVIII, p. 34.
3 I, p. 181.52 SOUTH WEST AFRlCA
facts 1, where the sole criterion applied to each facility appears to be
the fact (as Applicants contend) that "its purpose is not police protec
tion or internai seçurity".
Respondent submits that, for the reasons hereinafter stated, the basis
of Applicants' submissions regarding the law rests on a misconception
of the provisions of Article 4.
14. The basic fallacy in Applicants' statement of the law is that they
use the limitation in the first sentence of Article 4 with regard to the
training of Natives 2 as their criterion in detennining whether a military
installation or facility is a "military base".
Although there would be an interconnection between the limitations
imposed on the military training of Natives and the prohibition against
the establislunent of military bases, the former cannot in itself serve as
the criterion for d~termining whether a particular iµstallation or facility
is a military base.
15. In submitti.ng that-"Armed installations not related to police
protection or inte:mal security fall within the class of 'military bases' or
'fortifications' ... ," Applicants ignore the distinction between training
of Natives and training of non-Natives. The distinction is important
because the authors of the Covenant were not concemed about military
3
training generally, but about military training of the Natives hence the
limitation of military training for certain purposes was, in the express
terms of Article 4 of the Mandate, made applicable to Natives only.
An "armed installation" can, of course, legitimately be used for the
training of non-Natives, in which case the restriction upon training of
Natives cannot serve as a criterion in determining whether such in
stallation is or is nota "military base",
16. Moreover, Applicants render the term "local defence", which
appears in Article 4, as "internai security", an expression not used in
the said Article. Applicants' rendering in effect reduces the two concepts
in Article 4, viz., "internai police" and "local defence", to one, called
by Applicants "police protection or internai security". In such rendering
the concept of "local defence" falls oût of consideration altogether.
There is, it is submitted, a wide difference between the expression "local
defence of the terri tory'' which appears in Article 4, and the words
"internai security" in the sense contended for by Applicants. The words
"local defence of the territory" would include the defence of the Territory
against external aggression.
The omission of the concept of "local defence" is therefore a further
important respect in which Applicants err in their formulation and
application of th,! statement that "Armed installations not related to
police protection or internai security fall within the class of 'military
bases' or 'fortifications' ... " The significance is apparent particularly
in Applicants' reasoning Ieading to their Legal Conclusions. Thus they
argue, in respect of the Regiment Windhoek, that "Annoured corps are
not nonnally used for police protection or internai security purposes" 4,
11, pp. 182-183.
1Moreover, in a distorted form; videpara. 16, infra.
3 Vide para. 8,supra.
4 I, p.182. COUNTER-MEMORIAL OF SOUTH AFRICA 53
and further that the fact of the Regiment being "... part of a conven
tional military organization also indicates that its purpose is not police
protection or internai security" 1. On this basis they then conclude that
facilities pertaining to the Regiment are to be regarded as constituting
a military base. ln this process they clearly ignore that "armoured
corps" and the fact of being "part of a conventional military organi
zation" are perfectly consistent with a possible, and legitimate, purpose
of local defence 2 •
Similar treatment is given by the Applicants, in their Legal Concfo
sions, to the alleged "military landing field at Swakopmund" and the
alleged "military camp" and/or "military airbase" in the Kaokoveld 3•
It is therefore evident, in Respondent's submission, that the inferences
drawn by Applicants in their Legal Conclusions from the words "police
protection or internai security" cannot validly be drawn from the
expression "internai police and the local defence of the territory", and
that the inferences drawn by Applicants are thus as unjustified as is the
substitution of the former expression for the latter.
1 I, p. r82.
2 Which is in fact the case as far as the ultimate purposes of the Regirnent
Windhoek are concerned. Vide Chap. II, paras. 2-8, infra.
3
1, p. r83. CHAPTER II
THRALLEGEDMILITARYBASESINSOUTHWESTAFRICA
A. General
r. Applicants allege, "upon information and belief", founded on
"statements contained in the 'Report of the Committee on South West
Africa' for the years 1959 and 1960", that Respondent "maintains three
'military bases' within the Territory" 1. In support of these aHegations
Applicants advance practically no original evidence, although an attempt
is made to explain this weakness by alleging that Applicants have not
been able to make an independent verification of the existence or non
existence of bases or fortifications in the Territory.
Respondent states categorically that Article 4 of the Mandate has
been administered conscientiously and in the spirit of the Mandate.
There has been no military training of the Natives for any purpose,
except during the Second World War, when a special company of Native
soldiers was trained in the Eastern Caprivi Zipfel, and members of the
Native groups in other parts of the Territory were trained in the Native
Military Corps, a non-combatant unit, to assist in the local defence of
the Territory. At the end of the Second World War these units were
demobilized, and there has since been no training of Natives. No military
bases and no fortifications have been erected or cstablished in the Terri
tory.
B. The Regiment Windhoek
2. During the 1920s no permanent military force existed within
South West Afrka. For its defence the Territory relied upon the Bur
gher Force establishcd by Proclamation No. 2 of 1923 (S.W.A.) 2•This
Proclamation was referred to at page r of the Report of the Adminis
trator of South West Africa for the Year 1923 which was submitted to
the League of Nations as Respondent's annual report of the adminis
tration of South West Africa for 1923 3• In Respondent's report for the
year 1925 the organization of the Burgher Force was described as fo!Iows:
"There is no premanent [permanent) military organization. Apart
from the Police Force the Territory relies for its defence upon the
burgher force established by Proclamation No. 2of r923, as amended
by Proclamations Nos. 37 of 1923 and 35 of 1924.
The regulations framed under the former are published under
Government Notice No. 23 of 1923 (see page 94, Laws of South
West Africa. 1923). Every male European resident of the Territory
between the ages of rS.and 55 is liable to be called out in the defence
1 I, p.181.
i As amended by Proc. No. 37 of 1923 (S.W.A.).14 Nov. 1923, in Official Gazette
of South West Africa,No. 122 (1 Dec. 1923),pp. 1441-1442, and by Proc. No. 35 of
1924 (S.W.A.), 29 Dec. I924, inThe Laws of South West Africa I924, p.191.
3 U.G. 21-1924. COUNTER-MEMORlAL OF SOUTH AFRICA 55
of the Territory ifnecessary, subject to certain exemptions which are
set out in Section 2 of the first-mentioned Proclamation. Every
person liable for service is rcgistered.
Under Section ro the Administrator may from time to time
assemble the burgher forces for inspection and rifle practice.
The Force is divided into two classes (a) including all enrolled
between the ages of 18 and 35 and (b) between the ages of 35 and 55,
Whenever it becomes necessary for the defence of the Territory
or for the protection of life and property the Administrator may by
notice in the Gazette call out the whole or part of the Force. Where
only partis called out class (a) must first be drawn on.
Every burgher is provided with a rifle and 50 cartridges, which
must be kept for emergency purposes.
For active service he uses his own horse if he has one, and upon
mobilisation must report at the place of assembly with greatcoat and
blankets.
The officers are appointed by the Administrator.
As regards training, this takes the form of rifle practice, which is
encouraged by the Administration.
The Administration defrays the cost of rifle ranges and pays into
the 'Corps Fund' of each commando or independent squadron a
capitation grant of five shillings in respect of every burgher of such
commando who has qualified himself as efficient at the annual target
practice. Fifty rounds of ammunition are granted annually free to
each hurghcr for rifle practice, and he may obtain further supplies
1
for that purpose at cost price ."
3. In Respondent's Annual Report to the Council of the League of
Nations concerning the administration of South West Africa for the
year 1929 2,an exposition was given of the defence organization within
the Territory at that time. The relevant paragraphs of that report are
cited in Annex A, infra. This organization was hased on the Burgher
Force Proclamation, No. 19 of 1927 (S.W.A.), which had supcrseded
the abovementioned Proclamation No. 2 of 1923 (S.W.A.). In brief, the
new Proclamation imposed upon every able-bodied male European
resîdent of the Mandated Terri tory, who was a natural-born or natural
ized British subject, and who had completed his twentieth but not his
fifty-sixth year, the duty to render persona] service as a Burgher in the
defence of the Territory and the protection of life and property therein,
and to undergo such military training as might be prescribed or directed
by the Administrator 3•
While the Administrator had power to call up the whole or any part
of the Burgher Force for military training, such a call-up had not taken
place up to the stage when the 1929 report was compiled 4 •nor indeed
thereafter, as will appear beiow. In the said report it was mentioned
that the persons then registerecl as being liable for service under the
Burgher Force Proclamation numbered 6,259 5•
During discussions in the Permanent Mandates Commission in 1930
1 U.G. 26-r926, pp. 94-95.
2 U.G. 23-1930.
3 Ibid.,para. 6r, p. ro.
4 Ibid.,para. 66, p. r r.
s Ibid.,para. 63, p.10. SOUTH WEST AFRICA
regarding the abovementioned military organization, doubts were ex
pressed as to the efficiency of the Force. It is reported that:
"... M. Sakenoble [sic] felt somewhat doubtful as to the efficiency
of the force. Was it considered that the force was really adequate
for the defence of the territory and for the maintenance of law and
order? 1"
4. The defence organization described above remained unchanged
until 1939. Military training never developed to a point beyond rifle
practice and during the years 1931 to 1935 fmancial considerations led
to a curtailment even of that. The Burgher Force was never called up
for military training 2, and during the period 1936 to 1939 its organiza
tion came to an almost complete standstill.
5. By Proclamation No. 234 of 1939 (S.A.) it was provided, inter
alia, that the South African Defence Act of 1912 3, and all amendments
thereto, together with the regulations made thereunder, would apply
to South West Africa. The outbreak of the Second World War neces
sitated a better military organization in order to secure peace and order
in the Territory and to safeguard Respondent's position as Mandatory 4•
On 1 December 1939 the First South West Africa Infantry Battalion,
with headquarter:; at Windhoek, was established as an Active Citizen
Force unit of the Union Defence Force 5• The Battalion was established
for the purpose of assistîng, if necessary, the Police Force in protecting the
mandated territory in general, and, more particularly, in protecting its
essential services against possible internai disturbances or raids or
landings from enemy vessels. During 1940 the unit was mobilized as a
war-time volunteer battalion. On 16 January 1943 the unit was disestab
Iished.
6. A Citizen Force unit, named the South West African Infantry,
was established a'.,a unit of the Union Defence Force in 1946 6• During
1957 the unit was redesignated as "Regiment Suidwes-Afrika" and from
1 June 1960 it was further redesignated as "Regiment Windhoek" 7•
The Regiment Windhoek is a Citizen Force regiment with adminis
trative headquarters at Windhoek. With reference to Applicants' factual
8
allegations regarding this Regiment , Respondent admits that the Regi
ment is a part of the South African Armoured Corps of the Citizen
Force, which fonns an integral part of the South African Defence Forces,
and admits that on 1 December 1959, it consisted of 16 officers and 205
t P.M.C., Min., XVIII, p. r48.
2
Vide U.G. 21-1931, para. gr, p. 16; U.G. 17-1932, para. 70. p. 12; U.G.
16-1933, para. 75. p. r2; U.G. 27-r934, para. 65, p. 9; U.G. 31-1937, para. 46,
p. II.
3 Act No. 13 of 1~n2, amended by Act No. 43 of 1917, Act No. 25 of 1918, Act
No. 22 of 1922 and Act No. 32 of 1932; vide The Union Statutes r9ro-r947, Vol. 5,
pp. 111-243.
• U.G. 30-1940, paras. 168-169, p. 33.
5 G.N. No. 1977 (S.A.), 8 Dec. 1939, in The Laws of South West Africa r939, Vol.
XVIII, p. 138.
6
G.N. No. 841 (S.A.), 18 Apr. 1946, in The Union of South Africa Government
Gazelle, Vol. CXLIV, No. 3634 (18 Apr. 1946), p. 123.
1G.N. No. 458 (S.A.), 1 Apr. 1960, in Government Gazelle (S.A.), Vol. CC, No.
6395 (r Apr. 1960), :>48.
a I, pp. 181-182. COUNTER·MEMORIAL OF SOUTH AFRICA 57
other ranks. At present this Regiment consists of 20 officers and 22r
other ranks. Respondent denies, however, that the Regiment is stationed
at Windhoek. Only a small permanent force administrative staff, con
sisting of three officersand seven other ranks, is permanently stationed
at Windhoek. The Citizen Force recruits of the Regiment are ordinary
civilians of South West Africa whose only peace-time military obligation
is to attend two training courses, of 14 days each, during a period of
three years, at the training camp at Windhoek. They are not in perma
nent military service, and, except when in training, they reside in their
own homes at places scattered throughout the Territory.
The training camp at Windhoek serves only the purposes ofthe Regiment
Windhoek. In other words it caters for the European citizens domiciled
in South \Vest Africa who are required to undergo peacetime military
training as aforementioned. There is no military training of the Natives.
Owing to the limitcd training and the comparatively small number of
Citizen Force personnel involved, the training camp is utilized only for
vcry short periods at a time. For the major part of the year, therefore
the camp is not used for military training purposes.
7. In conclusion Respondent may point out that the inclusion of the
Regiment Windhoek as a part of the South African Armoured Corps
of the Citizen Force does not mean that it is an armoured unit. Regiments
are grouped for convenience. The Regiment is actually equipped with
what are internationally known, and used, as light reconnaissance
vehicles, viz., armoured cars.
8. The Regiment, constituted and organized as set out above, is the
bare minimum required for the defence of the Territory and for inter
nai security. Its facilities and equipment serve only the purpose of
training European persons, and are in no way intended to serve as the
starting point of, or the source of supplies for, operations or a campaign
of a force or army. The facilities, vehicles and material of the Regiment
do therefore not constitute a "military base" as alleged by the Appli
cants 1•
C. The AHeged MiHtary Landing Ground in the Swakopmund District of
South West Africa
9. Respondent denies that a military landing ground is maintained
in the Swakopmund district of South West Africa 2•At Swakoprnund
there is only a civilian landing field. The landing ground to which Appli
cants apparently refer is that situated on the farm Rooikop No. 19,
and known as Rooikop Landing Ground. This landing ground is not
situated within the territorial boundaries of South West Africa, but
falls within the area known as the port and settlement of \Valvis Bay.
The port and settlement of Walvis Bay is South African territory and
was not included in the Mandate conferred on Respondent 3•The farm
1 J,pp. 182-183.
2 Vide Applicants' allegation in I, p. 183.
3 The British annexation of \Valvis Bay predated the proclamationof a German
Protectorate in South \Vest Africa; vide British Letters Patent dated 14 Dec. 1878,
in British and Foreign State Papers r878-I879, Vol. LXX, pp. 495-496. The port
and settlernent of 'Walvis Bay was annexed to the Colony of the Cape of Good58 SOUTH WEST AFRICA
Rooikop No. 19 is situated in registration division F, which is the Walvis
Bay registration division. In proof of the above facts Respondent annexes
hereto affidavits by the Registrar of Deeds, South West Africa, and the
Surveyor-General, marked Annex Band Annex C respectively.
ro. In stating in its report for the year 1959 that the aforesaid landing
ground is situatecl in the Swakopmund district of South West Africa 1,
the Committee on South West Africa may have been misled by the word
2
ing of Government Notice No. 636 of 1958 (S.A.) which prohibited
access to the said landing ground, and which described the farm Rooikop
No. 19 as situated in the district of Swakopmund. The reason why the
situation of the farm was so described, is that in 1922, Respondent, for
administrative reasons, provided by Act No. 24 of 1922 that from a date
to be fi.xedby the Governor-General by proclamation-
"... the port and settlement of Walvis Bay which forms part of the
province of the Cape of Good Hope shall be administered as if it
were part of the mandated territory ... 3 "
The date from which the above provision became effective was fixed
as the fi.rst day oi October 1922 4.
By Proclamation No. 30 of 1922 (S.W.A.), and by virtue of the powers
delegated to him by section 1 of Act No. 24 of 1922, the Administrator
of South West Africa decreed that:
"The said port and settlement of Walvis Bay shail be deemed to
form portion of the District of Swakopmund created within this
Territory .. .5''
The Permanent Mandates Commission was aware of this adminis-
trative arrangement, and in its report to the League Council in 1922 it
"... noted that the territory of Walvis Bay had been treated as if
it fonned part of the mandated terri tory, whereas it was not, fo fact,
included in that territory 6."
The area of Walvis Bay was administered as part of the magisterial
district of Swakopmund until 1958, when a separate magisterial district
named Walvis Bay was proclaimed 7•
D. The Alleged Military Campor Military Air Base in the Kaokoveld
IL Respondent denies that it maintains any military camp or air
base in or near the Kaokoveld 8,or anywhere else in the Territory of
South West Africa.
Hope on 7 Aug. 1884; vide P~oc. No. 184 of 1884 (Cape of Good Hope), 7 Aug. 1884,
in The Cape of Good Hope Governmenl Gazelle, No. 65i9 (8 Aug. 1884), p. r.
1 1,p. 182.
2
G.N. No. 636 (S.A.), 3 Oct. 1958, in Government Gazette (S.A.), Vol. CXCIV,
No. 6123 {3 Oct. 1958), p. 22.
3 Sec. 1 of the A,;t, iThe Laws of South West Africa r9r5-r922, p. 20.
• Froc. No. 145 of 1922 (S.A.), 15 Sep. 1922, in The Laws of South West Africa
r915-r922, p. 56.
5 Proc. No. 30 of 1922 (S.,v.A.}, 2 Oct. 1922, in The Laws of South West Africa
r9r5-r922, p. 860.
6 P.M.C., Min., III, p. 325 (Annex 13).
1 Froc. No. 43 of r95S (S.W.A.), 21 July 1958, in The Laws of South West Africa
1958, Vol. XXXVII, p. 203.
• Vide Applicants' allegation in I, p. 182. COUNTER-MEMORIAL OF SOUTH AFRICA 59
12. In the Kaokoveld, at Ohopoho, there is a landing strip, created
during the Second World War. No personnel or airerait are retained
there. It is one of a few Ianding strips at various places in South West
Africa which are used by the South West African Administration for
administrative purposes and only intermittently by aircraft of the South
African Air Force.
Apart from the convenience, in this large Territory, of air travel
for administrative purposes, Respondent also bears a responsibility for
the defence of the Territory against external aggression, as well as for
the maintenance of order within the Terri tory. 1t has, in addition, the
responsibility of undertaking rescue operations in the event of civilian
airerait crashing or getting Jost over the area, and for rescue work along
the inaccessible sea coast, commonly known as the. "Skeleton Coast",
in the event of shipwrecks.
These various responsibilities make it imperative that Respondent
should maintain landing strips for intermittent and occasional use at
various places in the Territory. No defence personnel are stationed at
any of these landing strips. They are natural surface strips, which have
simply been cleared of vegetation and other obstructions. Maintenance
of these strips is usually attended to either by a local farmer or by the
local civic authorities. For the purpose of pre-planned flights, it is
practice to reconnaitre these strips in advance so as to determine their
serviceability or othenvise.
It is imperative that South African Air Force pilots should from time
to time be made acquainted with the landing strips within the Territory
so as to be able to perform the responsibilities which rest upon Respond
ent in respect of defence, internai security and rescue operations in the
Territory.
Respondent submits that the landing facilities described above
clearly do not fall within the description "military base" as used in
Article 4 of the Mandate.
13. In alleging the existence of a "military camp" or "military air
base" in the Kaokoveld, Applicants rely on a statement in the South
African Parliament in 1960 regarding a visit by the Minister of Defence
to a "military camp during reconnaissance in the Kaokoveld" • The
statement referred to a visit by the said Minister to the area of the Kaoko
veld during June 1957. The purpose of the visit was to carry out a
reconnaissance of this area, and it lasted approximately one week.
During that time the Minister and his party, which totalled nine persans,
were accommodated in tents specially erected for the purpose. The camp
staff totalled six persons white the aircrew who, by means of two Dakota
transport aircraft and two helicopters, fl.ewin the Minister and his party
(as well as the necessary camp equipment), consisted of 12 persons.
These men were also accommodated in tents. The aforestated comprised
the total "military camp", which was broken up again at the conclusion
of the visit. The camp equipment and tents were flown out by the same
airerait upon the departure of the Minister and his party.
14. The allegation on I, page 181 of the Applicants' Memorials, that:
1 Vide extract from the 1960 Report of the Committee on South \Vest Africa
cited at I, p. 182, which extrain turn refers toU. ofS.A. Parl. Deb., Houseof
A ssembly, Vol. 103 (1960), Col. 577.60 SOUTH WEST AFRICA
"The Committee on South West Africa has, however noted in
creased military activity in the Territory, încluding the staging of
aerial maneuvers [sic], described as a large-scale exercise by the
Union Department of Defence, in the Eastern Caprivi Zipfel
during August 1959",
ofnthe Mandate, and it cannot be so claimed. The allegation is therefore
irrelevant, but Respondent nevertheless will briefly furnish the facts of
the incident to which it appears to relate.
During August 1959 aerial manoeuvres were staged in the Eastern
Caprivi Zipfel. These manoeuvres were attended by the then Minister of
Defence and the Secretary and Deputy-Secretary for Defence, in their
officialcapacities. A total ofr2 Harvard aircraft participated, consisting
of two flights of six aircraft each. Only one flight participated at any
given time, the first flight being replaced by the second at the end of the
first week. The exercise was arranged, in the first instance, to comply
with a request received from the Department of Bantu Administration
and Development to investigate the extent of the tsetse fly menace in the
Caprivi Zipfel, and the possible eradication thereof by aerial spraying.
The said Department required a preliminary survey of what tsetse fly
eradication from the air in the Caprivi Zipfel would involve, and an
indication of the extent of bush-clearing that would have ta be under
taken before spraying could commence, and of the measure in which the
South African Air Force could assist. For this purpose it was necessary
to conduct a proper reconnaissance of the area from the air. The recon
naissance at the same time also served other purposes, namely to investi
gate the feasibility of aerial border patrolwork, and to exercise the pilots
concerned in low-level navigation, signais, communications and search,
as well as in rescue and survival operations in thickly vegetated and
largely uninhabited bush country. As will be apparent, the scope of the
exercises were insignificant from a military point of view.
15. From the .aforegoing it is clear that there are no military bases
in South West Africa. A full explanation of the facts was given to the
Fourth Committee of the United Nations Organization during October
1959 • Both Applicants were represented in this Committee, but have
apparently not te.ken note of the facts brought to the attention of the
Committee. These facts were later substantiated when M. Carpio and
Dr. Martinez de Alva, respectively Chairman and Vice-Chairman of the
Special Committee for South West Africa, visited the Territory during
1962. They were. given full opportunities of investigation, and were
specificallyrequested to investigate allegations of militarization in the
Territory. Their visit in fact included, inter alia. Windhoek, the Kaoko
veld, Ovamboland and (in the case of Dr. Martinez de Alva) the Caprivi
Zipfel-in other words, all the places mentioned by the Applicants in
their allegations regardîng militarization, except Swakopmund. At the
end of their visit, in a statement issued by Respondent's Prime Minister
and Minister of Foreign Affairs and the Chairman and Vice-Chairman of
the Special Committee, it was stated that:
"... in the places visited they had found no evidence and heard no
1
86-87.A., O.R., Fo1,rteenlh Sess., Fourlh Comm., 9o0th Meeting, 8 Oct. 1959, pp. COUNTER-MEMORIAL OF SOUTH AFRICA 61
allegations ... that there were signs of militarization in the terri
tory 1."
In a footnote to the statement it was said:
"The Chairman and Vice-Chairman were informed by the South
African authorities and noted the existence of a nine-man rnilitary
administrative headquarters in Windhoek. There is also a unit of the
citizens force ... which undergoes training for two weeks per annum
... with 17 officers and 206 other ranks 1."
1 U.N. Press Release GA/2501, 26 May 1962, Joint Statement on Pretoria talks
/ollowing visit oj UN Representatives ta South West A/rica, p. I. CHAPTER III
CONCLUSION
I. Respondent submits that the legal conclusions of the Applicants
are based not only on incorrect facts (as indicated in Chapter li above)
but also on a misconstruction of the legal position (as dealt with in
Chapter I above).
2. Regarding the Regiment Windhoek, Applicants argue that
armoured corps "are not nonnally used for police protection or fotcrnal
security purposes" 1•They further argue that the fact that the Regiment
fonns "part of a conventional military organization also indicatcs that
its purpose is not "police protection or internai security" 1•
This argument fails to take account of the fact that ncithcr the
Covenant of the League of Nations nor Article 4 of the Mandate rcstricts
military training of pcrsons other than Natives, and that even in the
case of Natives, military training is permitted not only for police pur
poses, but also for the most important purpose, the local defence of the
Territory. The Regiment Windhoek serves for the military training of
Europeans only. As there is no military training of Natives, the purposes
for which the members of the Regiment are traincd are, for present
purposes, irrelevant. But even if the qualification of training for "purposes
of interna! police and local defence of the terri tory" should be applicable,
then it is clear that the Regiment serves just those purposes. Furthermore,
the training facilities and equipment of the Regiment are the ordinary
facilities and equipment necessary for military training, and do not fall
within the description "military base" asused in Article 4 of the Mandate 2•
3. Regarding the alleged landing ground at Swakopmund, Respondent
has shown above 3 that the landing ground apparently referred to is in
fact not situated within the territorial boundaries of South West Africa,
and Applicants' further averments in that regard therefore fall away.
4. Regarding the alleged military camp or air base in the Kaokoveld,
Respondent has shown 4 that the landing strip in the Kaokoveld is used
mainly for administrative purposes. There are no military personnel
stationed at the said landing strip nor are there any military facilities,
although military aircraft have at times made use of the ship for purposes
of military training, local defence, internai police and rescue operations,
which use is in no way prohibited by the Covenant or the Mandate. The
landing facility does not fall within the description "military base" as
used in Article 4 of the Mandate.
5. Considering the law and the facts set out above, Respondent
submits that it has at no time violated the tenns of Article 4 of the
Mandate, and that military measures taken by Respondent have at all
times conformed to both the letter and the spirit of the Covenant of the
League of Nations and Article 4 of the Mandate.
l 1, p. 182.
2 Vide Cha.p. II, pa.ra.s. 6supra.
s Ibid.,pa.ra.s9-10.
4 Ibid.,pa.ra.s11-13. CHAPTER IV
SUBMISSION
For the reasons hereinbefore advanced, supplemented as may be
necessary in later stages of these proceedings, Respondent,far as
this portion of the Counter-Memorial is concemed, praysd requests
that Applicants' Submission 6 be dismissed. Annex A
PAkAGRAPHS 6I TO66 Of THE "REPORT PRESENTED BY THE GOYERNMENT
OF THE UNION OF SOUTH AFRICA TO THE (OUNCIL OF THE LEAGUE OF
NATIONS CONCER~'ING THE ADMINISTRATION OF SOUTH \VEST AFRICA FOR
THE YEAR 1929'' (U.G. 23-1930, PP. IO-II)
6r. No military forces are maintained for the defence of the Territory,
but the Burgher Force Proclamation, No. 19 of 1927, imposes upon
every able-bodied male European resident of the Mandated Territory
who is a natural born or naturalizcd British subject and who has com
pleted his twentieth but not his fifty-sixth ycar the liability to render
personal service as a burgher in the defence of the Territory and the
protection of life and property therein and to undergo such military
training asmay be prescribed or directed by the Administrator.
62. The Force is divîded into two classes, "A" and "B". "A" class
includes every person who has completed his twcntieth and not his
forty-first year, and "B" class every person who has completed his
forty-first and not his fifty-sixth year. ·
63. The number of persons registered as being liable for service under
the Proclamation on 31 December last was 6,259.
64- The command and control of the force is vested in a Chief Com
mandant appointed by the Administrator.
65. For purposes of organization the Territory is divided into five
military areas. The burghers residing in each area are formed into
commandos according to the military strength of the area. Separate
units are established, consisting of classes "A" and "B", the former
being known as active and the latter as reserve commandos.
66. White the Administrator has power to call up the whole or any
part of the force for military training, this for various reasons, mainly
financial,has not hitherto been done. The policy of the Administration
has been to encourage rifle practice, and to this end rifle ranges have
been provided in all parts of the Territory and burghers are supplied
with ammunition for practice at cost price. Annual efficiency shoots are
held and for instruction in marksmanship a free issue not exceeding
50 cartridges is made to each burgher. Every burgher must qualify in
marksmanship. Annex B
AFFIDAVIT
I, the undersigned, Gert Hendrik Olivier, hereby declare on oath that:
I. In my capacity as Registrar of Deeds, South West Africa, I
have the custody and control of ail the records in the Deeds Office.
2. According to the said records the farm Rooikop No. 19,
measuring six hundred and twenty-two (622) hectares, one thousand
one hundred and eighty-six (1,186) square metres, is situate within
the Terri tory of Walvis Bay. The Walvis Bay registration Division is
"F". The said farrp.has always been situate in the area known as the
port and settlement of Walvis Bay and did not form part of the
Territory of German South West Africa which later came to be held
under Mandate by the Union of South Africa.
Windhoek, this 30th day of October, 1963.
(Sgd.) G. H. OLIVIER
Deponent
The Deponent has acknowledged that he knows and understands the
contents of this affidavit.
Sworn and signed before me, Johannes Hendricus Krige, Additional
~1agistrate of Windhoek, South West Africa, by Gert Hendrik Olivier
who is the Registrar of Deeds, South West Africa, and of whose identity
I have satisfied myself.
Windhoek, this 30th day of October, 1963.
(Sgd.) J.H. KRIGE
Additional Magistrate of Windhoek
Commissioner of Oaths
I, the undcrsigned, Chari François Marais, Secretary for South West
Africa, do hereby certify that Johannes Hendricus Krige whose signature
appears on this document was at the tirne of signing the Additional
Magistrate of Windhoek and ex officia Commissioner of Oaths and that
ta ail Acts, Instruments, Documents and Writings subscribed by him in
that capacity, full faith and credence are given in the Territory of South
West Africa, in Court and thereout.
Given under my hand and the seal of my Administration at Windhoek
on tliis the 1st day of November, 1963.
(Sgd.) C. F.MARAIS Annex C
AFFIDAVIT
l, the undersigned, Esmond Errol Smith, hereby declare on oath that:
r. In my capacity as Surveyor-Gcneral, South \Vest Africa, l have
the custody and control of all the records in the Surveyor-General's
Office.
2. The fann Rooikop No. 19 is situate in the Territory of Walvis
Bay, Registration Division "F".
3. Registration Division "F" is the Walvis Bay registration
Division. ,
Windhoek this 30th day of October, 1963.
(Sgd.) E. E. SMITH
Deponent
The Deponcnt has acknowlcdged that he knows and understands the
contents of this affidavit.
Swom and signed before me, Johannes Hendricus Krige, Additional
Magistrate of Windhoek, South West Africa, by Esmond Errol Smith
who is the Surveyor-General of South West Africa and of whose identity
I have satisfied rnyself.
Windhoek this 30th day of October, 1963.
(Sgd.} ]. H. KRIGE
Additional Magistrate of Windhoek
Commissioner of Oaths
I, the undersigned, Charl François Marais, Secretary for South West
Africa, do hereby certify that Johannes Hendricus Krige whose signature
appears on this document was at the time of signing the Additional
Magistrate of Windhoek and ex officia Commissioner of Oaths and that
ta all Acts, Instmments, Documents and Writings subscribcd by lùm in
that capacity, full faith and credence are given in the Territory of South
West Africa, in Court and thereout.
Given under my hand and the seal of my Administration at Windhoek
on this the rst dà.y of November, 1963.
(Sgd.) C. F. MARAIS SECTIONC
ALLEGED VIOLATIONSBY RESPONDENT OF ARTICLE 2 (1)
OFTHE MANDATEAND ARTICLE 22 OFTHE COVENANT
CHAPTERI
STATEMENT OFTHELAW
A. Introductory
1. In their Submission 5 Applicants request the Court to declare that:
"the Union, by word and by action, in the respect set forth in
Chapter VIII of this Mcmorial, has treated the Territory in a man
ner inconsistent with the international status of the Territory, and
has thereby impeded opportunities for self-determination by the in
habitants of the Territory; that such treatment is in violation of the
Union's obligations as stated in the first paragraph of Article 2 of
the Mandate and Article 22 of the Covenant; that the Union has the
duty forthwith to cease the actions summarised in Section C of
Chapter VIII herein, and to refrain from similar actions in the future;
and that the Union has the duty to accord full faith and respect to
the international status of the Territory; 1".
2. Applicants' contentions regarding Respondent's obligations in
respect of the matters referred to in the aforegoing submission appear
from the following stages in their reasoning in Chapter VITI of the
Memorials 2 namely:
(a) Unilaterial annexation or incorporation of the mandated territory is:
(i) inconsistent with "a basic legal premise of the mandate system",
under which a "distinct international status" was accorded to
the Territory, and a duty assumed by Respondent "to guide
[the Territory] to a point at which the inhabitants thereof would
become competent to determine their own future status" and
(ii) repugnant to Article 2 of the Mandate which is to be construed
as imposing on Respondent a duty, inter alia, to "provide for
the political advancement of the inhabitants of the Terri tory ... ".
(b) On the part of Respondent there is accordingly a "duty to refrain
from unilateral annexation", and a "duty to advance the political
maturity of the Territory's inhabitants so that they may ultimately
exercise self-deterrnination... ".
(c) The provision in the first paragraph of Article 2 of the Mandate,
which confers on Respondent "full power of administration and
legislation over the territory ...as an integral portion of the Union
of South Africa", must be construed in the light of the aforestated
duties.
1 Vide 1,p.198.
z Ibid.pp. 184-r86.·68 SOUTH WEST AFRICA
(d) So construed, Article 2 of the Mandate does not entitle Respondent
"to take unilateral action regarding the Territory if such action
amounts to de facto annexation or incorporation". A contrary inter
pretation would "erase both the international status of the Territory
and [Respondent's] duties as Mandatory".
(e) "Incorporation or annexation can take place through single poli
tical acts, such as a proclamation, or through graduai and erosive
processes". With regard to the latter "motive is an important indi
cator since it sheds light upon the signifrcance of individual actions,
which might othenvise seem ambiguous".
3. On the basi5 of their Statcment of Law as outlined in the afore
going paragraph, Applicants, by reference to certain statements set forth
in section B.1 ol Chapter VIII of the Memorials and certain acts of
Respondent, reco·,mtedin section B.2 of the said Chapter, charge Respon
dent with a violation of its alleged duties as set forth in paragraph 2 {b),
supra, namely to "refrain from unilateral anncxation" and to "advance
the political maturity of the Territory's inhabitants so that they may
ultimately exercise self-determination".
4. Although Respondent contends that the Mandate has lapsed 1, a
contention which, if upheld, will obviate an enquiry into the charges
made by Applicants in Chapter VIII of their Memorials, Respondent
nevertheless will in this and the following Chapters deal with Appli
cants' charges on the assumption, for purposes of argument, that the
l\fandate is still in force.It will be convenient to deal first with Respon
dent's duties in the respect alleged by Applicants, and thereafter with
Applicants' statement relative to the kincl of actions which would
constitute a breach of such duties.
B. The Alleged "Duty to Refrain from Unilateral Annexation"
5. Respondent admits that it was a basic principle of the mandate
system that the tcrritories placed thereunder would each, during the
existence of the particular mandate, have a distinct international status
or identity.
On the assumption stated in paragraph 4 above, the position is
accordîngly accepted that in law Respondent is not entitled to annex
or incorporate South ·west Africa unilaterally, or to commit an act
which is inconsistent with the separate international status of the
Territory.
6. At the same time, however, although it has a separate international
status, South West Africa is one of the territories which, in terms of
Article 22 of the Covenant, could "... be best administered under the
laws of the l\fandatory as integral portions of its terri tory ... " subject to
2
certain safeguards in the interests of the indigenous population • And
it is a territory in respect of which Respondent has, in terms of the
Mandate, "... full power of administration and legislation ... as an
integral portion of the Union of South Africa ... " and authority to
"... apply the laws of the Union of South Africa to the territory, sub
ject to such local modifications as the circumstances may require" 3•
1 Vide Book II, Chap. V, of this Counter-Memorial.
2 Art, 22 (6)of the Covenant.
3 Art. 2of the Mandate. COUNTER-MEMORIAL OF SOUTH AFRICA
7. The only possible way of reconciling the existence of a separate
international status for the Territory with the provisions of the Cove~
nant and the Mandate cited above, is to accept that whilst the Territory
de jure in international law enjoys a separate identity, the de facto
relationship between the mandated territory and the Mandatory's own
territory in the administrative and legislative fields may be one of close
integration.
8. The position of South West Africain international law is therefore
that of a territory having a separate status, but at the same time a
territory permitted to be closely integrated in the administrative and
legislativc spheres with another territory, namely that of the Manda~
tory 1•
This position in law must always be borne in mind when one con~
siders the nature of Respondent's powers and duties in question.
As far as the status of the Territory is concerned, Respondent must
respect the requirement that it is to be a separate international status.
On the other hand, as far as the de facto government of the Territory
is concerned, Respondent is authorized to perform all acts covering al!
facets of government, administration and legislation. The day-to-day
exercise of the attributes of sovereignty thus vest in Respondent, and
the powers of Respondent in the fields of administration and legislation
are practically as wide as that of a sovereign power in regard toits own
territory. The only limitations which fetter or condition the internal
exercise of the powers of government and legislation arc, firstly, the
specific prohibitions contained in the Mandate, and, secondly, the duty
to "promote to the utmost the material and moral wcll-bcing and the
social progress of the inhabitants of the territory ... ". Subject to the
observance by Respondent of the saicl prohibitions and of its duty
towards the inhabitants, even complete integration of administration
and legislation would be permissible, without infringing the separate
international status of the Territory. A de facto relationship could thus
legitirnately develop, which in most respects would be indistinguishable
from the de factoposition obtaining undcr anncxation or incorporation.
g. Vicwed in the light of the foregoing considerations, the obligation
to respect the separate international status of the Territory dearly
cannot mean an obligation to maintain an entirely separate system of
administration and legislation in respect of the Territory. Furtherrnore,
no inference can be drawn that the said obligation entails a duty to
sever the bonds of administration and legislation inter-territorially as
time goes by. On the contrary the interests of the Territory and of the
inhabitants may at particular stages be best served-as has in fact
been the case regarding South West Africa-by progressive steps of
doser association.
m. In the premfaes Respondent submits that its legislative measures
and administrative acts, whether they do or do not involve doser
integration of the Territory with the Republic of South Africa, cannot
per se amount to a violation of the duty to respect the international
1 Although both the status of the Territory as well as the form of government
permitted for it are determinedby international law, the former has often been
seen as the internationalaw relationship of the Tcrritory (i.e., its position vis-à-vis
the world), and the latter as its inter-terrelationship (i.e., its position vis-à-vis
South Africa-in sa far as itde factadministration is concerned).70 SOUTH WEST AFRICA
status of the Ten:itory-or as Applicants put it, "to refrain from uni
lateral annexation". The only possible bas1s for establishing a violation
in such respect would be to show that the actions in question amount
to an abuse of pcwers, which, in the present context, could only mean
that they are directed towards a purpose not authorized by the Man
date. Thus Applicants indeed allege that the purpose of the actions on
which they rely was an unauthorized one, namely incorporation.
Briefly summarized, therefore, if the Mandate were still in existence,
the legal position would be that Respondent is not entitled to take
action the purpose of which is unilateral incorporation or annexa/ion
-whethcr mtendcd to be accomplished by a single act or piecemeal.
On the other ha:nd, acts in the administration of the Territory, not
directed towards a purpose to annex the Territory, cannot be in con
flict with the duty to refrain from unilateral annexation-even if such
acts bring about doser integration between the Territory and South
Africa.
C. The Alleged "Uuty to Advance the Political Maturity of the Territory's
Inhabitants so th.at they May ultimately Exercise Self-Determination"
n. Nowhere in the Covenant or in the mandate instrument was
specific provision made for an obligation in the above terms.
The Covenrmt, however, did provide in Article 22 for the application
of "the principle that the well-being and development of (the inhabitants ·
of mandated territories) form a sacred trust of civilization". And this
principle found expression in Article 2 of the Mandate, viz.: "The
Mandatory shall promote to the utmost the material and moral well
being and the social progress of the inhabitants."
12. It is concecled that in the wide and general "principle" enunciated
in the Covcnant, and expressed in the provisions of Article 2 of the
Mandate, there was embraced the idea of political advancement of the
peoples of mandated territories. What the ultimate goal of such poli
tical advancement would be in the case of B and C Mandates was no
where stated. As a matter of inference, however, it can be conceded that
ultimate self-dete.nnination was probably envisaged as an ideal in that
regard-but then only in a qua1ified sense of being something that
would be desirable to such extent and in such manner as might prove
to be practicable and equitable, as part and parcel of performance by the
l\fandatory of the discretionary fonction entrusted to it by Article 2 of
the Mandate. There is nothing to justify an inference of any more definite
contemplation or intent regarding self-deterrnination. Indeed, un
certainty or Jack of agreement on the question whether development to
a stage of self-determination would prove possible in ail cases is in all
probability the explanation for the omission to state anything express in
this regard in the case of B and C Mandates. Similar considerations
probably also expiain why the authors of the mandate system refrained
from prescribing the method by whlch the peoples in question should be
advanced politically, or the stage of advancement which would be re
quired for expression of self-determination, or the procedure to be
followed therein.
13. It seems then that it was deliberately considered best to do noth
ing more than to entrust the political advancement of the inhabitants COUNTER-MEMORIAL OF SOUTH AFRICA
7r
of B and C Mandated territories to the discretion of the different Man
datory Powers as one of the objectives of the duty to promote the
"material and moral well-being and the social progress'' of such peoples.
The objective of political advancemcnt is thus interwoven with all
the other facets of well-being, and the manner of its promotion lies
in the discretionary field. It was the Mandatory's fotimate knowledge
and experience in this field which, inter alia, motivated the grant of the
Mandate toit in the first instance 1•
14. An important aspect of the discretionary nature of the .Manda
tory's task in the respect under consideration, and of the lack of precise
prescription in that re&'ardin the mandate system, is that the manner
of achievement of the 1deal of self-determination may have to differ as
between various peoples and territories. Where a territory is "inhabited
by a homogeneous people, self-determination could appropriately take
the form of an act by or on behalf of altthei"nhaoitants and with reference
to the whole territory. But such a form could be wholly inappropriate, and
could indeed defeat the whole object of self-determination, when applied
indiscriminately to a case like that of South West Africa, where the
inhabitants belong to separate and divergent population groups which
are in snbstantially different stages of development, and which, to a large
extent, are separated from each other in portions of the Territory claimed
by individual groups as belonging to themselves, e.g., Ovamboland, the
Okavango and the Eastern Caprivi. The very differentiation made in
themandate system between the cases of A, B, and C Mandates 2, demon
strates that the authors of the system contemplated and expected
different rates of development as between the various peoples to which
the system would apply, and different times at which they might attain
political maturity. It thcrefore seems not only perrnissible for, but also
mcumbent upon, a Mandatory, in accordance with the basic premise of
the mandate system, to find appropriate methods whereby, in a case like
South West Africa, different population groups canas far as practicable
attain self-dctcrmination relative to themselves without thereby frus
trating self-determination for others.
15. The practical implications of the above distinction have been
considered earlier in this Counter-1\femorial, relative to the charges
against Respondent made by Applicants in Chapter V of their Memorials,
and need not again be considered herc. The distinction is, however,
to be borne in mind in order to preclude a wrong perspective upon the
Mandatory's duties relative to the ideal of self-detennination.
16. Another matter to which attention should be drawn is that the
duty to promote political advancement does not mean that such pro
motion must necessarily have as its objective the ultimate independence
of South West Africa.
Indeed the provisions of Article 22 (6) of the Covenant and Article 2
of the Mandate, read in the light of evcnts before and at the drafting
of the Covenant, indicate that the ultimate destination of South West
Africa was not foreseen as being necessarily independence. As far as the
"communities" mentioned in Article 22 (4)of the Covenant are concerned,
the goal of independence was clearly stated. As regards the "peoples"
1 Art.22 (2) of the Covenant.
2 Art.22 (1), (5} and (6), respectively.72 SOUTH WEST AFRICA
mentioned in Article 22 (5}of the Covenant, and the "territories" men
tioned in Article 22 (6). nothing was expressly said on this point. What
ever the situation might be in regard to the former (the peoples of the
so-called B Mandated Territories), there was in the case of the latter
(the so-called C Mandated Territories) nothing on which an inference
could fairly be based that the ultimate result was intended to be neces
sarily independence. lt was ciearly stated that such territories could
best be administered "... under the laws of the Mandatory as integral
portions of its tenitory .. ," and the reasons for that view as enumerated
in Article 22 (6), were based on considerations which, in respect of the
territories to which they applied, could largely be expected to be of a
permanent naturn-namely "the sparseness of their population, or their
small size, or their remoteness from the centres of civtlization, or their
geographical contiguity to the territory of the Mandatory ... "
17. Furthermore, as has already been stated, the Mandate for South
West Africa specifically provided (as was the case in ail C Mandates)
that Respondent would have full power of administration and legislation
over the tenitory "as an integral portion of the Union of South Africa".
Once a territory is administered "as an integral portion" of the
Mandatory's territory, the tendency to doser integration would be auto
matic. The scales would thus probably, in the course of time, be weighted
in favour of ultimate incorporation as the choice of the inhabitants.
That this natural tendency was foreseen, and that ultirnate indepen
dence was not necessarily envisaged for South West Africa, is clear
from the events at the drafting of the Covenant. In this respect Duncan
Hall'says:
"The ultimate union of [South West Africa] with the mandatory
would seem, President Wilson said, a 'natural union'. 'It was up to
the Union of South Africa to rnake it so attractive that South West
Africa would corne into the Union of their own free will', and, he
declared, 'if successful administration by a rnandatory should lcad
to union with the mandatory, he would be the last to object.'
This and similar passages show that President Wilson did not take
the doctrinaire view that the 'natural end' of a mandate was inde
pendence, since what rnattered was the 'true wishes' of the people;
and these wishes, when they could be ascertained, 'might ...
perhaps lead them to desire their union with the manda tory power'.
From this followed logically the President's adoption of the idea of
the administration of 'C' mandates as an 'integral portion' of the
mandatory·~ own territory. This wording was not something which
the draft of January 30 forced hirn to accept against his will. Mr.
Lloyd Geort;e had thrown out the idea on January 24, but the
President was to make it his own on the 27th-two days before the
draft text of Article 22 containing this provision was prepared by
General Smuts. If South Africa were the mandatory, the President
said on that day, it would extend its laws to South-West Africa, and
'administer it as an annex to the Union so far as consistent with the
interests of 1-heinhabitants'1.''
And Lloyd George, as Respondent has already indicated, is reported
to have said:
1 Hall. H, D.• M,2ndales, Deptndencies and T1'usteeshiP (1948), pp. l23-1:z4. COUNTER-MEMORIAL OF SOUTH AFRICA 73
"There is no doubt at ail that South-West Africa will become an
integral part of the Federation of South Africa. It will be colonised
1
by people from South Africa ."
18. The basic principles of the Covenant and of the Mandate, it is
subrnitted, would be entirely satisfied if an ultimate merger such as
foreseen by the authors of the Covenant, were to take place.
There can accordingly be no validity in a charge that administrative
and legislative steps towards doser mtegration between South West
Africa and South Africa are in violation of the principles of the Cove
nant and the Mandate merely on the groW1d that such steps may in
fluence the inhabitants in their choice as to the future of the Territory
that is if and when they attain political maturity.
19. Subject to the above considerations 2, it can be conceded that
Respondent's duties under Article 22 of the Covenant and the Mandate
included a duty to promote the political advancemcnt of the inhabitants
of South West Africa towards possible self-determination, and that uni
lateral incorporation during the existence of the Mandate could in a sense
be said to involve also a violation of Respondent's duties in this respect.
In Respondent's submission, the same qualifying considerations as
have been dealt with above apply also to the principles enunciated in
Article 73 of the Charter of the United Nations relative to the political
advancement of "peoples (who) have not attained a full measure of self
government" -if that Article should be relevant at ail in an enquiry
4
as to Respondent's duties under the Mandate •
Like the Covenant of the League of Nations, the Charter envisaged
self-determination as an ideal for such peoples, without stating a con
templation of the attainment thereof as a possibility in ail cases. And
like the Covenant, the Charter is silent as to the methods by which
political advancement should be promoted, as well as to the stage of
development required for the expression of self-determination or the
procedure to be followed therein-all matters which by inference were
left to the discretion of the Powers responsible for the administration
of the terri tories to which Article 73 of the Charter was intended to apply.
20. In the prcmises aforestated, Respondent submits that no separate
test can be applied to ascertain whether the duty to promote oppor
tunities for progress towards possible self-determination has been
violated, The test, it is submitted, must be whether a partkular act com
plained of, when viewed against ail the facets of well-being and devel
opment, wholly or in part frustrates the said objective.
Whenever an act is tested in order to ascertain whether it does or
does not frustrate the said objective, such act may appear to be posi
tive, or neutral (in the sense that it neither promotes nor impedes pro
gress) or negative (in the sense that it constitutes an impediment as far
as political advancement is concerned). In this regard it should be pointed
out, however, that a partitular act, when seen in isolation, may seem to
involve some impediment to political advancement, but that, when
1 Temperley. H. W. V., A History o/ the Peace Conference of Paris (1920-1924),
Vol. III. p. 95. .
~ That is, as statedin paras. II-18, supra.
3 Vide Applicants' allegationsin I, p. r84.
• Vide Respondent's reply to Applicants'Statement of Law in Chapter V ofthe
Memorials. ·74 SOUTH WEST AFRICA
viewed against the broad spectrurn of ail facets of well-being and pro
gress-which is the proper test to be applied-it may indeed prove to be
intended, and in fact to operate, for the advantage of the inhabitants of
the Territory.
21. Respondent submits that the discretion in the formulation of
proper policies directed towards the promotion of the well-being of the
mhabitants, including their political advancement, vests in Respondent.
This discretion is. a wide one, the exercise of which, in Respondent's
submission, is 1imited only by the requirement that the discretionary
power must not be abused-which in this case, for ail practical pur
poses, concerns only the limitation that such power is not to be exer
cised for a purpose not authorized by the Mandate.
The principles applicable in a consideration of this aspect have been
fully dealt with dsewhere in this Counter-Memorial in answer to Ap
plicants' legal submissions at the commencement of Chapter V of the
Memorials, and need not be repeated here.
As long as Respondent observes the duty not to take action the
1
purpose of which is unilateral incorporation or annexation , and com
plies with the obligation of promoting the political advancement of
the inhabitants 2, a step towards doser administrative and legislative
integration of South West Africa with South Africa, having as its ab
ject better govemment of the Territory, would not in law constitute a
violation of Respondent's obligations under the Covenant or the Mandate.
D. Applicants' Statement that "the Phrase 'lntegral Part' Gives [Re
spondent] no Licence to Take Unilateral Action regarding the Territory,
if such Action Amounts to De Facto Annexation or Incorporation" 3•
22. What precisely Applicants contend for by this statement is not
clear. In its wording the statement is not qualified with respect to
purpose, motive or intent, and may accordingly be read as intended to
apply not only to acts actuated by improper motives (i.e., acts of which
the purpose is incorporation or annexation), but also to acts not so
motivateµ but which have a particular effect, namely an effect of doser
integration between South Africa and South West Africa.
On areadingof the whole of Chapter VIII of the Memorials, it would,
however, appear as ifthis passage was intended by Applicants to be read
subject to an implied consideration of motive, purpose or intent. Thus,
for example, Applicants say:
(a) "Motive is an important indicator since it sheds light upon the
significance of individual actions. which might othenvise seem
ambiguous ."
(b) "... its [Respondent's] purpose is incorporation" and "The intent
of [Respond,~nt] ... has been given practical effect by, and ex
plains, [itsJ action 5".
(c) "[Respondent's] policy ... is ... part of a plan to incorporate the
Territory politically 6."
1As to which see paras. 5-10, supra.
2 Ibid.,paras.I I··I9.
31, p. 185.
• Ibid.p. 186.
s Ibid.p. I89.
6 Ibid.,p.193. COUNTER-MEMORIAL OF SOUTH AFRICA 75
(d) "The above two actions [of Respondent] are to be regarded as
elements of the plan to incorpora te the Territory into the Union ... 1"
(e) "... read in the light of the Union's avowed intent ... 2".
23. Respondent therefore takes Applicants' statement to mean that
an act, the purpose of which is annexation or incorporation-whether
intended to be accomplished in a single act or piece-meal-constitutes
a breach both of the duty to refrain from annexation or incorporation,
and of the duty to promote the progress of the inhabitants towards
possible self-detenninatfon.
If this is what Applicants intend to convey in their Statement of the
Law, then Respondent has no comment thereon save to say that:
(a) motive would not, as Applicants suggest, be only "an important
indicator (shedding) light upon the significance of individual ac
tions"-it would be the very criterion, and the only criterion, for
determining whether a particular action is in violation of Respon
dent's obligations under the Mandate; and
(b) in considering the propriety of any act on the part of Respondent,
due regard must be had to powers conferred on Respondent as
Mandatory, as dealt with in paragraphs 6 to ro, supra, and to the
considerations stated above, particularly in paragraphs 12 to r8, as
bearing upon the concept of self-determination in the case of a C
Mandated Territory like South West Africa.
24. If, however, Applicants' statement in question was not intended
to be read subject to an implied consideration of purpose, motive or
intent, then Respondent submits that in the light of what has been said
in paragraphs 5 to 21 above, the statement advances a proposition
which is wholly untenable in law.
25. In the following Chapters Respondent will deal with Applicants'
Statement of Facts in the light of the legal contentions set forth by
Respondent in this Chapter.
1 I,p.194.
2 Ibid., p195. CHAPTER II
RELEVANTHISTORICAL BACKGROUND
A. Generally As to the Facts Relied upon by Applicants
. Applicants commence their Statement of Facts by referring to
Chapter Il of the Memorials as setting forth-
" ... the long record of the Union's continuous assertions that the
Mandate has lapsed, that the Union has no duties thereunder, and
1
that the Union alone has a legal interest in the Terri tory ".
They proceed to allege, with reference to statements made in the
South African Parliament over the years 1956 and 1957, that Respon
dent "daims a legal right to incorporate the Territory politically", that
Respondent's "purpose is incorporation", and that Respondent "in
furtherance of this purpose, avowedly treats as null and void the obli
gations stated in Article 22 of the Covenant and the Mandate which
prohibit unilateral annexation and contemplate progress towards self
determination" 2•
Applicants allege further that Respondent's intent to incorporate the
Territory "has been given practical effect by" certain acts dealt with in
section B.2 of Chapter VIII of the Memorials, which acts are said to
be "inconsistent with the international status of the Territory"2•
2. Although Respondent admits that it has since, and by reason of,
the dissolution of the Lcague of Nations, contended that the Mandate
had lapsed and that Respondent has the power to incorporate South
West Africa (a matter dealt with more fully in Chapter III, paragraph
4, hereinafter), it denies that the other conclusions which Applicants
draw from the statements and acts in question are justified. In particu
lar Respondent denies that such statements or acts evidence an intention
or purpose on its part to incorporate the Territory, or that the said acts
served to give practical effects to such an intention, or that they werc
or are inconsistent with the international status of the Territory. Respon
dent also denies that, in furtherance of a purpose of unilateral annexation,
it treats as null and void the obligations stated in Article 22 of the Cove
nant and in Article 2 of the Mandate.
3. In ascertaining Respondent's motives relative to the status of
South West Africa and its relationship with South Africa, as well as
its attitude towards the inhabitants of the Territory, due regard should
be had to Respondent's conduct and declared intentions regarding the
Territory and its peoples both during the lifetime of the League of
Nations and thereafter.
A general account of relevant historical facts since the inception of
the Mandate has been given in Book II, Chapter II, of this Counter
Memorial. In the following paragraphs of this Chapter a brief review is
given of the more salient facts concerning Respondent's conduct and
1 I, p. 186.
z Ibid., p189. COUNTER-MEMORIAL OF SOUTH AFRICA 77.
intentions as declared from time to time in the particular regards afore
stated.
B. The League of Nations Period
4. The close relationship between South Africa and the mandated
territory, which had indeed been contemplated by the authors of the
Covenant as the probable and natural association between the two
countries 1 became a reality from the inception of the Mandate, and a
progressive desire for further integration was evidenced over the years.
As early as September r920 General Smuts envisagcd the following
constitutional developmcnts in South West Africa:
"South-V/est 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 becomc an clected Council,
and in due course therc would be a full Parliamen tary system 2.''
And a Commission appointed by Respondent in r920 to enquire into
the question of the futw-e form of government in the Territory re
commended, inter alia.as follows:
" ... the fonn of government ... should be succceded ... by the
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. When that stage has been
reached, the Protectoratc will be administered as a fifth Province of
the Union, with a system of government similar in principle to that
of the other parts of the Union, but subject always to the conditions
of the Mandate 3."
5. In r923 General Smuts once more set out his views as to the con
stitutional future of the Territory. ln a letter to the Chairman of the
Permanent Mandates Commission he said, inter alia:
"When the question of citizenship has been solved, we propose to
constitute a legislative council for the territory to which, in addition
to a number of Government nominees, the white voters of the
territory will be able to elect a larger number of popular represen
tatives. They will also in all probability be given the opportunity to
send some representatives to the Union Parliament. This will,
however, be without prejudice to the interests of the native popula
tion, which will continue to be a charge of the Union Government
as the mandatory Power. In all other respects the tenns of the
mandate will be safeguarded and respected in the legislation which
will be introduced, and the Union Government will continue to
discharge its responsibilities in accordance with the mandate. These
arrangements for the future government of the territory without
2 Vide Chap. I, para. 17, supra.
3 P.M.C., Min., II,p. 92 (Annex 6).
U.G. 24-1921, pa.ra. 7, p. 4· SOUTH WEST AFRICA
prejudice to the provisions of the mandate will, I am sure, commend
1
themselves to the Permanent Mandates Commission ."
6. Due to political currents in the Territory, the close relationship
between it and South Africa was emphasized on scvcral occasions, and
the desire of the :majority of the European inhabitants for closer asso
ciation, which was always present, became more insistent from timc
to time. One of the strong motivating factors for this desire was reaction
against expressed aspirations of the German section of the community
to see the Territory returned to German nùe 2•
7. The Permanent Mandates Commission also, on occasion, dis
cussed the agitation for doser association, although no formal proposai
for incorporation of South \Vest Africa as a fifth province of the Union,
or otherwise, was ever made 2•
During the Sixth Session of the Commission 3 the question was dis
cussed with reference to certain statements and articles which had
appeared in the Press. The South African representative, Mr. Smit, said,
inter alia:
"When South-West Africa had a responsible Government, that
Government might probably be invited to join the Union. Under
the Union Ac.t, South-West Africa would then become a province of
the South African Union, but it would remain, for certain purposes, a
distinct entity •."
And M. Rappard is recorded as having said that:
"... in such an event it would be necessary to respect two essential
principles. The first was that the territory must continue to be
administered on behalf of the League of Nations. The second
principle wa5.that its administration must be wholly disinterested,
which meant that no excess of revenue from the mandated territory
should be used except for the benefit of the territory. It scemed to
him that there could be no objection to incorporation provided these
principles were safeguarded \" (Italics added.)
After others had participated in the discussion M. van Rees pointed
out that:
"... under Article 22 of the Covenant and according to the terms
of the C mandates, it was provided that the Mandatory should have
full power of administration and legislation over the territory as an
integral portion of the territory of the :Mandatory. There coutd
accordingly b,~no objection toincorporation if it were merely a question
of administrative incorporation, subfect to the special obligations of the
mandatory Power. If, however, incorporation would imply a change
in the political and international status of South-West Africa
without this terri tory having yet reached a sufficiently high state of
development to allow the Mandatory to withdraw, such incorpor
ation would amount, \.vithout doubt, to annexation, which would
be an obvious infraction of the manda tory system 5." (Italics
added.)
• P.M.C., Min., Hl, p.215 (Annex 1).
2 Vide Book II, Cha.p. II, para. 26, of this Counter-1\lemorial.
3 26 June to rn July 1925.
4 P.M.C., Min., VI, p. 59.
5 Ibid.,pp. 59-6o. CQUNTER-MEMORIAL OF SOUTH AFRICA 79
8. During the Ninth Session of the Permanent Mandates Commission 1,
a statement by General Smuts, who was then no longer a member of Res
pondent's Government, was brought to the notice of the Commission.
General Smuts had said, inter alia:
"I should have preferred the two countries more closely linked up
at this stage. When I urge this it may be said that I am working in
favour of the annexation of South-West Africa to the Union; but I
am not. I do not think it is necessary for us to annex South-\Vest to
the Union. The mandate ... gives the Union such complete power
of sovereignty, not only administrative, but Jegislative, that we
need not ask for anything more."
And:
"When the Covenant of the League of Nations and, subsequently,
the Mandate gave tous the right to administer that country as an
integral portion of the Union, everything was given to us.... We
therefore have the power to govern South-West Africa actually as
an integral portion of the Union. Under these circumstances I
maintain-and I have always maintained-that it will never be
necessary for us, as far as I can see, to annex South-West. Vvecan
always continue to fulfil the conditions imposed on us by the man
date, and we can always render annual reports to the League of
Nations in respect of the mandate 2."
In the course of discussion on General Smuts' statement, M. Rappard
is recorded as having said that :
"General Smuts was perfectly free to state that an integral part
of the territory of South Africa was administered in the name of the
League of Nations, although ... it would appear more logical to
say that it was administered in the name of the League of Nations
as if it formed an integraI part of the territory [South Africa] 3."
9. In 1934 the then Prime Minister of South Africa, General Hertzog,
made the following statement regarding Respondent's attitude towards
the Mandate:
"The Government has not the least intention in relation to the
mandate for South-West Africa to act otherwise than faithfully to
carry out its duties as Mandatory and to continue to perform them
until such time as the abject which was contemplated when the
mandate was handed over to us has been attained, and I hope we
shall accept that as a fixed policy and decision, not only of the
present Govemment, but of any Govemment that succeeds it ~:·
10. During 1934 the Legislative Assembly of South West Africa
adopted a resolution which urged, inter alia, that South West Africa
"... be administered as a fifth province of the Union, subject to the
provisions of the ... Mandate", and that the Territory be represented in
5
the South African Parliament •
1 8 to 25 June 1926.
2 P.M.C., Min., IX, p. 33. Vide also U. of S.A., Part. Deb., House of Assembly,
Vol. 5 (1925), Cols. 5930-593r.
3 P.M.C., Min., IX, p. 34,
• As quoted in P.M.C .. Min., XXVI, p. 51.
5 This resolutionwas passed on 22 May 1934, but was later considered invalid80 · SOUTH WEST AFRICA.. . . ..
In the Twenty-3ixth Session of the Permanent Mandates Commission,
during 1934, the said rcsolution was discussed. There were divergent
reactions from va:rious Members of the Commission as to the propriety of
administering the Territory as a fifth province of the Union with re
presentation in the Union Parliament, the majority indicating in the
course of discussion that they were individually inclined to regard such
an arrangement 2.sincompatible with the Mandate 1.The Commission's
resolution, however, was to-
"... [reserve] its opinion as to the compatibility of the course pro
posed by the Legislative Assembly with the mandate system until
it had becn informed in due course of the point of view adoptcd by
the mandatory Government in this connection and been acquainted
with all the factors of the problem 2".
11. Respondent's reaction to the aforementioned resolution of the
Legislative Assernbly was that it would take no action without con
sulting with the League of Nations. The matter was brought specifically
to the attention of the Permanent Mandates Commission in 1935, when
the South African representative infonned the Commission of the
appointment of the South West Africa Commission (known informally
as the Constitution Commission) 3•He explained the tenus of reference
of the Commission as well as the reasons for its appointment, and assured
the Mandates Commission that:
"... the Union Government had acted and would continue to act
in a spirit of complcte loyalty towards the Mandates Commission. In
any case there was absolutely no intention of presenting the Com
mission with a fait accompli.
Nothing could be further from the Union Government's thoughts
that any intention to take any action that would stultify its position
in the eyes ,)f the Mandates Commission or of the Members of the
League of Nations, of which the Union Government was a staunch
Member. He could assure the Mandates Commission that the Union
Government would never take any action in this respect until it had
first communicated its intentions to the Mandates Commission
itself4."
In its report to the Leaguc Council the Perm·anent Mandates Com
mission-
"... noted with satisfaction the statement by the accredited re
presentative that the mandatory Power will not take any action in
this respect until it has first communicated its intentions to the
League of Nations 5".
12. In its report, the South West Africa Commission expressed the
opinion that there was·no legal objection to the administration of South
West Africa as a fifth province of the Union, subject to the terms of the
Mandate. Copie; of the Commission's report were submitted to the
on constitutional ~:rounds. A sirnilar resolutiowas thereafter again proposed and
adopted on 29 Nov. 1934. Vide U.G. 26-1935, pp. 5, 7.
1P.M.C., Min., XXVI, pp. 50-52, 62-64, 163-166.
2 Ibid.,p.166.
3 Vide Book II, Chap. II, para. 27, of this Counter-Mernorial.
• P.M.C., Min., XXVII, p.r6o.
s Il>id., 229 (Annex 36). COUNTER-MEMORIAL OF SOUTH AFRICA 81
League of Nations, and in the annual report for the year r936 Respondent
communicated to the League its views on the Commission's findings.
Respondent stated, inter alia:
"Although the Union Government is of the opinion that to admi
nister the Mandated Territory as a fifth Province of the Union,
subject to the terms of the Mandate, would not be in conflict with
the terms of the Mandate itself, itfeeis that sufficient grounds have
not been adduced for taking such a step ."
C. The Period After the Dissolution of the League
13. The facts relating to Respondent's attitude and intentions with
regard to the Mandate at the time of the inception of the United Nations
Organization and the dissolution of the Lcague of Nations, have been
set out in Book II, Chapter II, of this Counter-Memorial, and need not
be repeated here in detail. For convenience, however, the following more
important facts are briefly recapitulated. viz.:
(a) The desire amongst the European inhabitants of the Tcrritory for
doser association with South Africa and termination of the Mandate
found concretc expression in repeated resolutions passed by the
South West Africa Legislative Assembly 2•
(b) Consultations with the non-White inhabitants of South West Africa
in order to ascertain their wishes regarding the future government
of the Territory resulted in an ovcrwhelming majority in faveur of
incorporation 2•
(c) Apart from the expressed wishes of the inhabitants, numerous other
considerations rendcred incorporation advisable 3•
(d) Respondcnt believed that incorporation would serve the best
interests of South West Africa and all its inhabitants, and had at aJI
material times made known its project for ascertaining the wishes
of the inhabitants and thereupon seeking to obtain international
recognition for incorporation 4•The procedure actually followed in
this last respect was the submission to the General Assembly of the
United Nations of a fuily reasoned mcmorandum and proposai in
tha t regard 5•
(e) The General Assembly, however, rejected Respondent's proposa!
regarding incorporation, whereupon Respondent made it clear that
it would not proceed with incorporation of South West Africa, but
would maintain the status quo and continue to administer the
Territory in the spirit of the Mandate 6•
14. Although Respondent had, in deference to the wishes of the
General Assembly, relinquished the project for incorporation of South
West Africa, all the considerations relied upon by Respondent in pro
posing incorporation remained of full force and effect, and fully justified
Respondent's bona fi.debclief that closer association between South West
1 U.G. 31-1937, para. ra, p. 4.
2 Vide Book Ir, Chap. Il, para. 43, of this Counter-Memorial.
3
Ibid., para. 45.
• Ibid., paras. 31, 35 (e) and .p (b) (ii).
s Ibid., paras. 43-46.
6 Ibid.,paras. 44, 47-48.82 SOUTH WEST AFRICA
Africa and South Africa, without the Territory being incorporated in South
Africa, would be in the best interests of the Territory.
15. On II April 1947 the House of Assembly of the South African
Parliament adopted a resolution reading, inter alia, as follows:
"... therefore this House is of opinion that the territory should be
represented in the Parliament of the Union as an integral portion
thereof, and requests the Government to introduce legislation, after
consultation with the inhabitants of the territory, providing for its
representation in the Union Parliament ... 1 ".
This resolution was brought to the attention of the Secretary-Gcneral
of the United Nations by letter of 23 ]uly 1947, in which 1etter it was
also stated that Respondent would maintain the status quo and would
2
continue to administer the Territory in the spirit of the Mandate •
16. When the question of South West Africa was being considered
by the General Assembly in 1947, the South African representative
repeated Respondent's declared policy to administer South West Africa
in the spirit of the Mandate, and stated, inter aha:
"The representation of the Territory in the Parliament of the
Union of South Africa, to which some attention has been drawn in
the Fourth Committee, will not be a departure from such a form of
administration. Under the Mandate, such representation could clear
ly have been granted without in any way violating any provision of
the Mandate. It is not the same tlùng as incorporation, as has been
contended by some representatives. By such representation, the
Territory will not be incorporated in the Union of South Africa any
more than the territories under French administration have been
incorporated into France by representation in the French legislature.
Also, after such reprcsentation has been granted, the Territory will
continue to be administcred in the spirit of the Mandate 3."
17. The South African representative in 1948 again dealt in the
Fourth Committee with the matter of doser integration of South West
Africa with South Africa. He said that full political and economic
advancement of South West Africa could not be achieved except through
close association with South Africa in view of the fact that the interests
of the contiguous Territories were so closely interwoven, and in many
cases identical. And he pointed out that a doser form of political and
economic association between the two Territories had indeed for many
years been the desire of the people of South West Africa. After explaining
the provisions of the proposed legislation whereby South \Vest Africa
would be rcpresented in the South African Parliament, he said:
"As the Prime Minister had pointed out, the new arrangement
was not incorporation. On the contrary, South West Africa would
now acquire self-government in a measure not permitted to the
corresponding legislative bodies of the Provinces of the Union. The
agreement arrived at was particwarly advantageous to the Terri tory
1 U. of S.A., Parl. Deb., House of Assembly, Vol. 60 (1947), Col. 262.i. The full
text is quoted in Book II, p. 56 (1), of this Counter-Memorial.
z Vide U.N. Doc. A/334, in G.A ., O.R., Second Sess., FouYth Comm., p.l35 and
Book II, p. 55 (1), ofthisCounter-Memorial.
3 G.A., O.R., Second Sess.,Vol. I, ro5th Plenary l\Ieeting,1 Nov. 1947, p. 633. COUNTER-MEMORIAL OF SOUTH AFRICA
of South West Africa, and was very definitely in the interests of
the Territory and its people 1."
r8. Later in the same year the South African representative is recorded
to havè stated that he-
"... wished to give the Assembly the formai assurance, as had
already been done by his Prime l\finister, that the measures designcd
to cstablish Parliamentary representation for the Territory did not
mean that Territory's incorporation or absorption into the Union of
South Africa 2."
And the General Assembly, in resolution 227 (III) of 26 November 1948,
took note of-
"... the statement of the representative of the Union of South
Africa that it is the intention of his Government to continue to
administer South West Africa in the spirit of the Mandate;"
and of-
"... the assurance given by the representative of the Union of
South Africa that the proposed new arrangement for doser asso
ciation of South West Africa with the Union does not mean in
corporation and will not mean absorption of the Territory by the
Administering Authority; 3".
19. By letter dated II July 1949, a copy of the South West Africa
Affairs Amendment Act, 1949 (Act No. 23 of 1949), together with a
summary of its provisions, was transmitted to the Secretary-Gcncral of
the United Nations. This letter contained a reaffirmation of the aforesaid
assurances, and continued:
"This Act introduces certain changes in the form of association
between South West Africa and the Union of South Africa. In parti
cular, it will be noted from the summary that under the new form
of association, which is entirely consonant with the spirit of the
Mandate, no greater powers are devolved upon the Union Govern
ment in respect of South West Africa than were accorded under the
terms of the original Mandate, but on the other hand certain powers
previously exercised by the Union Government are now to be exer
cised by the Legislature of South West Africa, which thus exercises
a considerably greater measure of self-government than is enjoyed
by a Province of the Union 4."
In the course of debates in the Fourth Committee in the same year
Respondent's representative assured the Committee that-
"... his Government had never contemplated adopting measures
contrary to the provisions of the Mandate and that it was still
5
administering the terri tory in the spirit of the Mandate ".
20. At the end of the debate of the Fourth Session of the Fourth
Committee in 1949, one of the delegates proposed an amendment to
certain draft resolutions to the effect that-
1 G.A., O.R., Third Sess., PaYt I, Fourlh Comm.76th Meeting, 9 Nov. 1948, p.293.
2 Ibid., 164th Plenary Meeting, 26 Nov. 1948, p. 588.
3 G.A. Resolution 227 (III),26 Nov. 1948, in U.N. Doc. A/810, pp. 90-91.
• U.N. Doc. A/929, in G.A .,O.R., Fourth Sess., Fourth Comm., A11nex,p. 8.
5 G.A., O.R., Fourth Sess., FouYth Comm., 130th l\Ieeting, 21 Nov. 1949, p. 213.
Vide also Book II, Chap. II, para. 55,of this Counter-Memorial. SOUTH WEST AFRICA
"... the meastrres taken by the Union of South Africa in adoptmg
a law for the association of South West Africa with the Union of
South Africa constitute a violation of the United Nations Charter 1".
This amendment was rejected in the Fourth Committee by 17 votes
to 12 with 17 abstentions • Again in 1950 the following amendment was
proposed by the same delegation in the Fourth Committee:
"... that the action of the Union of South Africain adopting a law
on the incorporation of South West Africa in the Union of South
Africa consti1.utes a violation of the Charter of the United Nations; 2"
This proposed amendment was rejected by 16 votes to 9 with 22
abstentions 3,and an identical amendment proposed at the Fifth Plenary
Session of the General Assembly on 13 December 1950, was once more
rejected, by 24 votes to 8, with 22 abstentions 4.
2r. ln its negotiations with the Ad Hoc Committee on South West
Africa during 1951 and 1952, Respondent expressed its preparedness
to negotiate a new international instrument embodying in essence the
main obligations of the Mandate 5•Such an agreement, if concluded,
would of necessity have precluded unilateral annexation or incorporation
of South West Africa by Respondent.
22. In 1954, before the Fourth Committec, Respondent's represen
tative dealt with certain charges of alleged incorporation ancl annexation
of South West Africa. Commenting on the transfer of control ovcr
Native Affairs from the Administrator of South West Africa to the
Minister of Native Affairs of the Union of South Africa, he emphasized
that it would not result in the abolition or diminution of any service
rendered to South West Africa. On the contrary, with its greater resources
in money, manpower and experience, the Government of South Africa
would be able to increase and to improve those services in every way.
Furthermore, the South West Africa Administration and the Ministry
of Native Affairs were both agencies of the South African Government
and it was therdore diffi.cult to understand how the South African
Government would be less mindful of its responsibilities under Article 22
of the Covenant while acting through one than while acting through the
other. He mentioned that the charges of alleged incorporation and annex
ation of South West Africa by the Union of South Africa had been heard
before and rebutted in detail. Nevertheless they had been raised again,
and he therefore wished to stress "that there had been no incorporation
of South West Africa by the Union and no annexation to the Union 6."
23. During 1955 Respondent's representative. in the course of a full
statement before the Fourth Committee once more repudiatcd allega
tions to the effect that Respondent intended to incorpora te the Tcrritory,
and stated that:
"It was the conviction of the South African Government that
1 U.N. Doc. A/I180, inG.A., O.R., Fourth Sess., Plenary Meetings, Annex,p. roo.
2
U.N. Doc. A/1643. inG.A., O.R., Fi/th Sess., Annexes.Vol. I (Agenda Item 35},
p. 8.
3 Ibid., p. 9.
• G.A ., O.R., Fi/th SessVol. I, 32:md Plenary Meeting, 13 Dec. 1950, p. 63r.
5 Vide Book II, Chap. II, paras. 70, 74 and 82, of this Counter-Memorial.
6 G.A ., O.R., Ninth Sess., Fourth Gamm.,407th Meeting, 15 Oct. 1954, pp. 69.70. COUNTER-MEMORIAL OF SOUTH AFRICA 85
representation of South West Africain the Union Parliament was
fully in keeping with the spirit of the Mandate 1.''
24. In the course of negotiations with the Good Offices Committee on
South West Africa during 1958, Respondent expressed its prepared
ness-
"... to see incorporated in any agreement which might be arrived
at a provision specifying that the Territory possessed 'an interna
tional character', in that it had not been annexed by the Union of
South Africa in the generally accepted sense of the tenn; that this
international character derived from the arrangement made at the
Peace Conference at Versailles; and that the Union would not be
able to amcnd the international character of the Territory uni
laterally, that is to say, without the consent of the second party
to the agreement 2."
This expression of preparedness on Rcspondent's part, as well as expres
sions such as mentioned in paragraph 21 above, it is submitted, cor
roborate the consistent and frequent assurances by Respondent's repre
sentatives to the effect that Respondent had no mtention to annex or
incorporate the Territory.
25. During a meeting of the Fourth Committee on 8 October 1959,
Respondent's rcprcsentative, South Africa's Minister of Externat
Affairs, once more assured the Committee that Respondent "would con 3
tinue to administer the Territory in the spirit of the previous Mandate" •
D. Conclusion
26. In Respondent's submission the aforegoing account of history
since the inception of the Mandate dearly shows that:
(a) during the lifetime of the League of Nations Rcspondent's declared
attitude was that, with regard to the status of South West Africa as
a mandated ten·itory, Respondent would do nothing in conflict
with the Mandate, or without prior consultation with the League;
and
(b) whilst Respondent had after the dissolution of the I.eague adoptcd
the attitude that the Mandate had lapsed, Respondent, after
rejection of its proposai regarding incorporation of South West
Africa, consistently declared that it would not proceed with annexa
tion or incorporation, that it would maintain the status quo and
continue to administer the Territory "in the spirit of the Mandate".
At the same time Respondent demonstrated its belief that _steps
towards doser association between South West Africa and South
Africa would be to the benefit of the Territory and indicated that it
was indeed desired by the inhabitants. Respondent furthermore
showed that such steps as were taken in the direction of doser
association were legally permissible under the Mandate and did not
constitute incorporation, or elements in a plan or scheme of in
corporation.
2 G.A., O.R., TenthSess., FourthComm.,491stl\.feeting, 31 Oct. 1955, pp. 135-136.
2 U.N. Doc. A/3900, in G.A ., O.R., Thirteenth Sess., Anne(Agenda Item 39),
para. 33, p. 6.
3 G.A., O.R., Fourteenth Sess., Fourth Comm.900th Meeting, 8 Oct. 1959, para.
15, p. 85. CHAPTER Ill
RESPONDENT'S ALLEGEDINTENIIONS
A. Introductory
r. This Chapter deals with that part of the Applicants' Statement of
Facts set out in section B.r of Chapter VIII of the Memorials under
the heading "T/u: avowed intentions of the Union" 1,and which is con
cemed almost exdusively with statements made in debates in the South
African Parliament.
2. Respondent submits that with a view to a proper interpretation
and evaluation of the statements concerned they require to be read in
the light of their own context and setting, and also of Respondent's
attitude, actions and declarcd intentions regarding South West Africa
and its peoplcs, both before and after the statements in issue were made
-as recounted in Chapter II above. When this is done-as in the
following paragraphs-it will in Respondent's submission be seen that
the staternents do not justify the conclusions drawn from them by the
Applicants, namely:
(a) that Rcspondent's "purpose isincorporation"; and
(b) that in furtherance of such purpose, Respondent "avowedly treats
as p.ulland void the obligations stated in Article 22 of the Covenant
and the Mandate, which prohibit unilateral annexation and con
template progress toward self-determination" 2.
B. The Statement of the South African Prime l\1inisterin the Senate on
21 May1956 3
3. Before the Prime M.inister made the statement here in issue,
Senator Cowley, a member of the Opposition in the South African
Parliament, had suggested that it might be advisable for South Africa
to annex South West Africa, and had presentcd an argument to justify
such a course 4•This was, in effcct, an invitation to Respondent's Govern
ment to state its position regarding the question of incorporation or
annexation of the Territory. The Prime Minister indeed commenced his
reply to Senator Cowley by stating:
"The hon. Senator Cowley suggested that in order to avoid
troubles in future in so far as South West Africa is concemed, we
should forthwith proceed to annex South West Africa 5.''
The cardinal aspect of the answer of the Prime Minister which then
followed, was that it rendered clear that he did not agree with Senator
Cowley's suggestion. He rcstated Respondent's attitude and views as to
1 I,pp. 186-189.
2
3 Ibid .. p189.
U. of S.A., Pa•l. Deb., Senate, Vol. III (1956), Cols. 3631-3632; cited in I,
p. 186.
4 U. of S.A., Pa1·l.Deb., SenateVol. III (1956), Cols. 3627-3628.
5 Ibid., Col.3631. COUNTER-MEMORIAL OF SOUTH AFRICA
the relationship between South Africa and the Territory as a result of
the dissolution of the League of Nations 1,and at the same time re
iterated that Respondent would continue "to govern South West Africa
in the spirit of the old mandate". While in effect conceding the possi
bilitythat circumstances might in future move Respondent to form an
intention to incorporate the Territory, the Prime Minister made it clear
that that was, as at the time of speaking, a mere contingency which had
in fact not arisen.
4. With regard to the declaration contained in the statement that it
was "within [Respondent's] power to incorporate South West Africa
as part of the Union", it seems manifest that this was based on the
understanding that the .Mandate had lapsed-a contention which had
repeatedly been advanced before by Respondent, and which is argued in
Book II, Chapters III to V of this Counter-Memorial. Respondent has
never taken up the attitude that if the Mandate should still be in force,
Respondent would nevertheless have the right to incorporate the Terri
tory unilaterally and without special justification. Respondent's policy
to administer the Territory "in the spirit of the Mandate" includes a
voluntary abstention from unilateral incorporation, cxactly as if the
Mandate were still in legal operation in that regard. And thus Respon
dent has in fact not taken any action to incorporate the Territory. It is
submitted, therefore, that the declaration as to a right to incorporate
does not show the existence of an intention on Respondent's part to
incorporate the Territory, and that the very statement in which the
declaration occurred refuted the existence of any such intention.
C. The Speech of Mr. Basson in the House of AssembJyon 23 April i:956 2
5. On a proper analysis of Mr. Basson's speech, the following appears:
(a) With regard to the position of South West Africa, Mr. Basson
visualized two separate problems, namely on the one hand,
"... the international problem, the legal position of South West
vis-à-vis the world; 3" and, on the other hand,
"... the inter-territorial relationship, i.e., the practical relationship
between South West and the Union 4."
(b) He regarded such questions as whether the Mandate still existcd,
with whom the sovereignty of South West Africa rested, and whether
the powers of the League with regard to mandated tcrritorîes had
automatically been transferred to the United Nations or not, as
falling under the international prohlem-a discussion of which in
the House of Assembly and on the party political platform, he
considered would not serve much purpose.
(c) Under the second problem he dealt not with the legal but with the
practical relationship between the Territory and South Africa. He
emphasised that Respondent always had the right to govern South
West Africa as an integral portion of the Union, and said that:
1 Vide Chap. II, paras. 13-25supra.
2 U.of S.A., Pa.rl. Deb., House of Assemb{Vol. 91 (1956), Cols. 4107-4no;cited
in 1, pp. 187-189.
3 U. of S.A .. Parl. Deb., House of AssemblVol. 91 (1956),Col. 4108; 1, p. 187.
• U. of S.A .. Pari. Deb., House of AssemblVol. 91 (1956), Col. 4108;videChap.
I, para. 8,supra (footnote3).88 SOUTH WEST AFRICA
"Within th.: rights and powers the Union has always had ùi respect
of South West, South West has in fact, de facto, bccome a partner of
the four provinces, the fifth unit in the broad framework of South
Africa, and on a basis best fitting the political, economic and geographic
circumstances of that territory 1." (Italics added.)
6. There can be no question but that Mr. Basson, speaking as a
Member of Parliament for one of the South West African constituencies,
saw Respondent's rneasures of integration not only as inter-territorial
measures permissible in terms of Article 2 of the Mandate, but also as
being bencficial to South ,vest Africa itself. Furthermore, he rendered
clear that he was dealing with the broad effect of "ail the happenings
of 1948-1949 ... ·,iot international/y but only inter-territorially" 2 (italics
added), and he manifestly did not suggest that any mcasures were to be
seen as motivated by a desire to bring about a modification in the
international status of the Territory, or as directed at stuhifi.cation of
the objectives contained in the second paragraph of Article 2 of the
Mandate regarding the promotion of the well-being of the înhabitants.
He was concerned with a totally different question-of no consequence
for present purposes, but apparently regarded by him as important in
domestic politics at the time-viz., whether the arrangements of 1948-
1949 could be said to have made South West Africa "a partner of the
four provinces", his answer being in the affirmative as regards the "de
{acto" situation.
7. In the above context it is clear that no sinister meaning can be
attached to Mr. Basson's statement concerning the practical relationship
between South West Africa and South Africa, narnely that: "... anncx
ation in the old-fashioned sense of the word has Iost al! practical rnean
ing 1." ([talics added.) It accords with views expressed since the in
ception of the mandate system by commentators who regarded the
potential effect of C Mandates in their practical operation as one not far
removed from the position obtaining under annexation 3, and it was,
indeed intended to demonstrate that no particular purpose was to be
served by complete annexation or incorporation.
D. The Statement of the South African Prime Minister in the House of
Assemblyon 23 ApriJr956 4
8. This statement of the Prime Minister must be read in its proper
context. It was made in reply to the speech by Ilfr. Basson which is dealt
wi th in paragraphs 5 to 7, supra.
Mr. Basson referred to the Legislative Assembly elections in South
West Africa durlng November 1955, which elections he said had been
fought "on the question of the political relations between South West
Africa and the Union" 5, a rnatter with regard whereto he wished to
give a report concerning "the final attitude and the wishes of the public
of South West" 6•
1 U.of S.A., Parl. Deb,, Hottsof Assembly, Vol. 91 (1956), Col. 4109.
i Ibid., Cols. 4rn:3-4rn9; vide Chap. I, parasupra (footnote 3).
3 Vide Book II,Chap. II,para. 8, of this Counter-Memorial.
• U. of S.A., Pari. Deb., House of AssemblyVol. 91 (1956). Col. 4128.
5 Ibid., Col. 4107.
6 Ibid., Col. 4108. COUNTER-MEMORIAL OF SOUTH AFRICA
Having addressed the House of Assembly as cited by Applicants at I,
pages 187to 189, Mr. Basson concluded his speech as follows:
"\Ve therefore ask the Government that it should not count
against us that our relationship to the central authority differs
technically from the relationship between the four provinces and
the central authority. \Ve consider that this does not derogate
from the quality of our partnership and our essential unity with the
Union. It is our friendly request that we should be regarded not as
being alien, notas something outside the Union which it is hopedone
day to incorpora te, but as a full partner of the four provinces on the
basis of the 1949 Act 1.''
9. It seems clcar that the Prime Minister's statement cited at I, page
189 was made in response to Mr. Basson's request that South West Africa
"should be regarded notas being alien". The Prime Minister agreed with
Mr. Basson that there was a strong desire in South West Africa for greater
co-ordination between the Territory and South Africa in respect of
legislation and other matters, and stated that representations had been
made to his Government to that effect. The last sentence of the Prime
Minister's statement, viz.: "I just want to emphasize that South West is
no longer a mandated territory, but is ruled as an integral part of the
Union 2", in the context, was intended to give an assurance that although
Respondent considered the Mandate to have lapsed-i.e., that "South
West (was) no longer a mandated territory"-Respondent was govern
ing, and would continue to govern, the Territory as an integral part of
South Africa.
10. Applic::rntscontend that the Prime Minister's statement-
"... admits explicitly that the Mandate, if considered to be in effect,
limits the manner in which the Union may mie the Territory as an
'integral part' of the Union.",
and that it ", .. reveals the Union's awareness that its actions ... exceed
the pennissible bounds of the l\Iandate, if the Mandate is still effec
tive .. .3''
Respondent says that this interpretation is an untenable one.
It will be recalled that the Prime Minister endorsed Mr. Basson's
speech, and that l\fr. Basson had made it quite clear that he was not
dealing with the Territory's position in international law, but only with
the inter-territorial relationship between the Terri tory and South Africa,
and that he (Mr. Basson) had stated that a close inter-territorial relation
ship had developed "Within the rights and powers the Union has always
had in respect of South West 4". (Italics added.)
In endorsing such a statement, it is inconceivable that the Prime
Minister would, in the same breath, have intended to convey an
"... awareness that [Respondent's] actions ... exceed[ed] the pennis
sible bounds of the Mandate, if the Mandate [was] still effective .. Y'
II. It must be noted, furthermore, that if,as Appiicants contend, the
Prime Minister meant that Respondent was exercising powers beyond
those permissible under the Mandate, the Prime Minister's statement
1 U. of S.A., Parl. Deb., House of AssemblyVol. gr (1956), Col. 4110.
2 Ibid.,Col. 4128.
3 I, p.187.
4 U. of S.A., Parl. Deb., House of AssemblyVol. 91 (1956), Col. 4109.go SOUTH WEST AFRICA
would have been in direct conflict with the attitude consistently adopted
and expressed by Respondent both before and after this statement 1•
Indeed, less than a month after making the statement here in issue,
the Prime Minister, in the statement dealt with in paragraphs 3 and 4,
supra, said that Respondent was "... prepared ... to govern South
West Africain the spirit of the old mandate ."
And a year later, in a statement also quoted by Applicants 3, the
Prime Minister emphasized that-
"... although we adopt the standpoint ... that the mandate no
longer exists, the mandate itself laid clown ... that the Union had
the right to govern South West Africa as an integral part of the
Union. We can, for example, make all our laws of application to it
and govern itsimply as part of the Union .. Y'
thereby clearly indicating that Respondent regarded its actions in re
gard to the Territory as falling within the permissible bounds of the
Mandate.
E. The Statement of the South African Prime Minister in the Senate on
5
14 June 1957
r2. What the Prime Minister inten<led to convey in this statement
must be gleaned from the discussions on the matter debated in the
Senate at that time. The measure under discussion was an enactment
conceming a purely administrative matter, narnely the publication of
laws of the Union Parliament which were applicable also in South West
Africa. The Prime Minister explained that at the request of the South
West Africa Administration the enactment in question provi<led that
laws such as aforementioned would be publishe<l only in the Government
Gazette of the Union of South Africa without republication in the
Official Gazette 1JfSouth West Africa. He explained that the reasons
for such a step were the saving of costs as well as expediency in cases
where legislation had to be applied urgently, and concluded as foUows:
"The South West Administration also gives the assurance that the
Union Govfffnment Gazette will be circulated and used in such a way
in South West Africa that publication therein of the laws of the
Union Parliarnent which are of application to that territory willcome
quite adequately under the attention of people who are interested
therein. The South West Administration will nevertheless publish a
short notice in such cases in their own local official paper in order to
direct atten1ion to the fact that such a law was passed and that it is
of application to the South West African territory 6."
13. In the course of the debate Senator Conradie, a member of the
Opposition, said :
"l\fr. President, I would like to assure the hon. the Minister that
we will give him our full support. This Bill is simply to bring the po-
1 Vide Chap. TI."-paras. r3.25, supra.
2 U. ofS.A., Pai·l. Deb., Senate, Vol. III (1956), Col. 3632.
3 1,p. 189; dealt with in paras.12-14, infra.
4 U. of S.A., Pai·l. Deb., Senate, Vol. IV (1957), Col. 5535.
s Ibid., cited in l, 189.
6 U. ofS.A., Pari. Deb., Senate, Vol. IV (1957), Col. 5533. COUNTER-MEMORIAL.OF SOUTH AFRICA
91
sition in South West into confonnity with the position as we have it
today in the Union, as the hon. the Minister said. There is only one
remark that I want to make and that is with regard to Clause Four.
As the hon. the Prime Minister said, it is at the request of South
West Africa that the laws should be published only in the Union
Government Gazette and no longer in the official publication of South
West. The hon. the Prime Minister said that there are cases where
this is urgent and for that reason it is very much quicker to publish
it here. There is one matter that strikes me, namely whether this is a
step to incorporate South West further in the Union and no longer
to keep the South West Administration, its legislation and its
publications separate? I said that we welcome the Bill, but I would
just like to point out that it appears tome as though this is a step
towards further incorporation and if I understand it in this way,
then, I think, we all do ."
The Prime Minister answered as follows:
"Mr. President, if I may just reply to the question which was
asked~/ do not think that itkas anything to do with this, but the hon.
Senator Conradie will know that although wc adopt the standpoint
which his former leader, General Smuts, adopted that the mandate
no longer exists. the mandate itself laid down to the old League of
Nations that the Union had the right to governSouth West Ajrica as an
integral part of the Union. We can, for example, make ail our laws
of application toit and govern it simply as a part of the Union and
then the hon. Senator Conradie if he so prefers can still adopt the
standpoint that it is not incorporated 2." (Italics added.)
14. As will appear from the above, the statement in question was not
made by the Prime Minister "in commenting upon objections voiced by
a member of the opposition", as alleged by Applicants 3•
And, it also appears that, in posing the question whether the measure
dealt wi th was-
"... a step to incorporate South West further in the Union and no
longer to keep the South West Administration, its legislation and its
4
publications separate " (italics added),
Senator Conradie was dealing only with doser administrative intcgration,
and not with incorporation in the sense of annexation of the Territory.
It will also be noted that the Prime Minister stated that the relevant
measure had nothing to do with incorporation (i.e., in the sense of annex
ation of the Territory).
He pointed out that although, in Respondent's view, the Mandate
no longer existed, the power to be exercised was one which fell within
the powers provided for in the Mandate, viz., the right to govem the
Terri tory as an integral part of South Africa.
F. Conclusion
15. In the premises aforestated, it is submitted that the statements
referred to by Applicants in no way justify the inferences contended for
1 U. of S.A., Parl. Deb., Senate, Vol. IV (1957), Cols. 5533-5534.
2 Ibid., Col. 5535.
' r, p. 189.
• U. ofS.A., Parl. Deb., Senate, Vol. IV (1957), Col. 5534.92 SOUTH WEST AFRICA
by them. On the contrary, upon a proper analysis of such statements
in their context and against the background of Respondent's consistent
attitude and dedared intentions, bath prior to and after such state
ments, it is clear that:
(a) It is not Respondent's intent or purpose to incorporate the Terri
tory;
(b) Respondent has consistently stated and given the assurance that
it would continue to administer the Territory in the spirit of the
Mandate-Le., asif ail the obligations relating to the sacred trust
were still in existence;
(c) and Respondent has repeatedly indicated that its actions in regard
to the Terrifory would have been permissible under the Mandate
ifit had still been in force, and that such actions did not constitutc,
and were not intended as, acts of incorporation. CHAPTER IV
CONFERMENT OFSOUTHAFRICANCITIZENSHIPUPONTHE
INHABITANIS OFSOUTHWESTAFRICA
A. Introductory
I. The first of Respondent's acts alleged by Applicants to be "in
consistent with the international status of the Territory" is what Ap
plicants term the "General conferral of Union citizenshlp upon the
inhabitants of the Territory" 1.
At I, page 190 Applicants cite a resolution of the Council of the League
of Nations of 23 April 1923 concerning the national status of Native
inhabitants of mandated territories. Applicants then refer to certain
legislativc measures of Respondent relative to South African nationality
and citizenship, which measures are said to be in conflict with the
Council's resolution, on the ground, as Applicants allege, that Respon
dent has by such measures "identified the status of inhabitants of the
Territory with that of Nationals of the Union" through processes having
"general application" 1• And thus, say Applicants, Respondent has
"violated its obligations as stated in Article 22 of the Covenant and
Article 2 of the Mandate" 2•
Before dealing with the specific legislative enactments referred to by
Applicants, it is necessary to give attention to the history and import
of the Council's resolution, which forms the basis of the charge made
by Applicants-a matter to which the next succeeding paragraphs are
devoted.
B. The Resolution of the Council of the League of Nations
of 23 April 1923
2. In the report of the First Session of the Permanent Mandates
Commission, which was submitted to the Council of the League of
Nations on 10 October 1921, the Chairman of the Commission, the
Marquis Theodoli, said that:
"... the question of the national status of the inhabitants of the
mandated territories, which was brought to the notice of the Com
mission when it examined the report on South-West Africa ...
deserves a very detailed examination and ... calls for the speediest
3
possible solution ".
And the Commission raised the following questions in its report:
"Is it desirable that the population placed under the adminis
tration of the Mandatory Powers, acting on behalf of the League of
Nations, should be granted the nationality of the Mandatory Powers,
owing to the fact that the system laid down in the Covenant has
1 1,p. 190.
2 Ibid.,p.192.
3 L. o/N., O.].,1921 (Nos. 10-12),p. u26.94 SOUTH WEST AFRICA
corne into operation? Should they keep their former nationality, or
1
should some other system be adopted? "
The Council considcred these questions and resolved to request the
Chairman of the Permanent Mandates Commission and two of his
colleagues to form a sub-committee for the purpose of seeking further
information on the question of the nationality of the inhabitants of B
2
and C Mandated areas •
3. ln response to the said request the Commission submitted to the
Council proposal,, to the effect that in general the Native inhabitants
should be grantcd a national status distinct from that of the nationals
of the Mandatory Power, preferably by legislative act of the Mandatory
Power. lncluded in the Commission's proposais was the following:
"III. It is open to manda tory Powers to which Band C mandated
territories have bcen entrusted to make arrangements, in conformity
with their own laws, for the individual and purely voluntary acquisi
tion of their nationality by inhabitants of these territories 3."
The following reasons were adduced by the Commission in support of
the said proposal:
"1II. In justification of the third proposa!. the Commission wishes
to submit to the Council the following consideration.
ltseemscontraryto the spirit of the Covenant and to the essence of
the institution of mandates to permit the compulsory naturalisation,
by a single act, of all the inhabitants of territories under B and C
Mandates. The legal relations which exist betv.reen a manda.tory
Power and the territory which it administers on behalf of the Leaguc
of Nations do not appear to permit of a measure which a State
annexing a territory cannot apply with regard to the inhabitants
annexed except by virtue of provisions expressly inserted in the
Treaty of Cession. The Treaty of Versailles, by the terms of which
the former German Colonies were handcd over to the Principal
Allied and Associated Powers, to be administered on behalf of the
League of Nations by Powers called manda.tory, contains no clause
imposing the nationality of the mandatory Power on the inhabitants
of those colonies 4."
4. After consideration of the said proposais the League Council on
23 April 1923 passed the resolution cited at I, page 190. For convenience
the resolution is repeated here:
''.Inaccordance with the principles laid down in Article 22 of the
Covenant; [the Council] Resol ves as follows:
(1) The status of the native inhabitants of a mandated territory is
distinct from that of the nationals of the mandatory Power and
cannot be identified therewith by any process having general
application. .
(2) The native inhabitants of a mandated territory are not invested
with the nationality of the Manda.tory Power by reason of the
protection extended to them.
1 L. of N., O.] .1921 (Nos. 10-12),p. 1126.
1 Ibid.,p. II33.
3 P.M.C., Min., II, p. 68.
• Ibid., XV, p. 276 (Annex 14). COUNTER-MEMORIAL OF SOUTH AFR!CA
95
(3) It is not inconsistent with (1) and (2)above that individual in
habitants of the mandated territory should voluntarily obtain
naturalisation from the Mandatory Power in accordance with
arrangements which it is open to such Power to make with this
object under its own law.
(4) It is dcsirable that native inhabitants who reccivc the protection
of the Mu.ndatory Power should in each case be designatcd by
some form of descriptive title which will spccify their status
under the mandate 1."
5. lt is observed from the proposais of the Commission that it was
not averse to the nationality of a Mandatory power being extcnded to
the inhabitants of the mandated territory-its objection was to a par
ticular manner of conferment of such nationality, namely by "com
pulsory naturalization by a single act, of all the inhabitants". And the
Council's resolution gave effect to what the Commission had proposed
in this regard.
C. Extension of South African Citizenship to British Subjects
in South West Africa Prior to 1949
6. During 1928 questions arose in the Permanent Mandates Com
mission and in the League Council regarding the nationality of the
inhabitants of South West Africa.
The relevant laws governing the position at the time were the fol
lowing:
(a) Act No. 40 of r927, The Union Nationality and Flags Act. This
Law conferred Union Nationality on-
''a person born in any part of South Africa included in the Union
who is not an alien or a prohibitcd immigrant under any law relating
to immigration; 2".
Section 9 of the Act defined an "alien" as "a person who is nota British
subject". "British subject" had, according to section 9, the meaning
assigned to it in Act No. 18 of 1926. Section g of the Act also defined
"Union" as including "the mandated territory of South West Africa".
(b} Act No. I8 of I926, The British Nationality in the Union and
Naturalization and Status of Aliens Act. The provisions of this law
specified the persons who were deemed to be British subjects.
Section 1 of the Act contained a definition of the expression "Na
tural-born British subjects' ',and provided, inter alia:
"I. {r) The following persons shall in the Union be deemed to be·
natural-born British subjects, namely:
(a) Any persan born within His Majesty's dominions and
allegiance ;''.
"British subjcct'' was defined in secbon 30 (1)of the Act as-
"... a persan who is a natural-born British subject, or a person who
is the holder of a certificate of naturalisation or a person who has
become a subject of His Majesty by reason of any annexation of
1 L. of N., O.]., 1923 (No. 6p.604.
2 Act No. 40 of 1927, sec. r (a), in Statutes of the Union of SoutI9z7-r9z8,
Vol. II,p.2.96 SOUTH WEST AFRlCA
terri tory, or otherwise has under this Act become a British subject ;".
It was further provided in section 30 (1) of the Act that: "... 'the
Union' includes also, in addition to the limits of the Union of South
Africa, the Mandated Territory of South-West Africa."
7. With regard to the Native inhabitants of South West Africa the
legal position was explained as follows in a memorandum dated 19
December 1928 submitted by Respondent at the request of the Council
of the League:
"B. Native lnhabitants
No legislative measure conferring automatic naturalisation upon
the native inhabitants, nor giving them some form of descriptive
title, has been passed. They are regarded as stateless subjects under
the protection of the mandatory Power, and in a passport such a
person would be described as a native inhabitant of South-West
Africa undcr the protection of the Union of South Africa in its
capacity as mandatory of South-West Africa. There is, howevcr,
nothing to prevent the native inhabitants from applying for
naturalisation under Act 18 of 1926, and in this respect they stand
1
in prccisely the same position as Europeans who are aliens ."
8. In response to questions by the Permanent Mandates Commission
the position was once more explained in a memorandum by Respondent
dated 19 June 1929, as follows:
"Section I of Act 18 of 1926 provides that 'any person barn within
His 1\fajesty's Dominions and allcgiance' shall be deemed to be a
British subject. As the mandatcd terri tory is not part of His Majesty's
Dominions, it follow::.that a persan is not deemed to be a natural
born British subject merely by reason of his birth in that territory 2."
And,
"As persans born in South West Africa of alicn or rather non
British parents do not becomc British subjects fttre soli persans
born in that territory are Union nationals only if born of British
parents, natural born or naturalised, and are such nationals only if
they themselves are still domiciled there and have not become
aliens 3."
9. During the Fourteenth Session of the Permanent Mandate...:;Com
mission in 1928, Respondent's representative explained that Act No. 40
of 1927 did not affect the status of Native inhabitants of South West
Africa. He is reported to have said that:
"The whole basis of the law was that, beforc a person could become
a Union national, he must be a British subject. Once that point was
realised, the Act became perfectly plain. A native of South-\Vest
Africa was not a British subject, and, that being so, he could not
become a Union national~."
----
1L. of N., O.J .1929 (Ko ..5),p.827.
2 Ibid. (No. 8), p. 1287.
3 Ibid.,p. 1288. As regards the propositionthat the mandated territorywas not
part of "His Majesty's Dominions", see furthcrFfrostv. Stevenson,1937, 58 C.L.R.
528, at pp.550, 55:!-553, 581-582, quotedby Judge McNair in International Status
of South West Afri,;a, Advisory Opinion, I.C.J. Reports 1950, pp151-153.
4P.M.C., Min., XIV, p.80. COUNTER-MEMORIAL OF SOUTH AFRICA 97
In thls regard M. van Rees, a Member of the Commission, is reported
to have said:
"He inferred from the accredited representative's reply that the
natives of the mandated territory had not automatically become
either nationals of the Union or British subjects in consequence of
the application of the Act .''
lt would appear that the South African Government's explanation
regarding the status of the Territory's Native inhabitants was accepted
by the Permanent Mandates Commission and the League Council.
ro. Applicants, however, in charging that-
"... the Union has by processes of general ·application' identified
the status of inhabitants of the Territory with that of Nationals of
2
the Union ".
also cite from the aforementioned Acts, and appear ta question Res
pondent's explanation to the Permanent Mandates Commission, referring
tait as something whlch Respondent could "plausibly contend" 3•
Applicants' attitude in this regard presumably rests on the wording
of section 30 {r) of Act No. 18 of 1926, which provided "... 'the Union'
includes also, in addition to the limits of the Union of South Africa, the
Mandated Territory of South-West Africa", and which is italicizcd by
Applicants at I, page 190.
Applicants might intend to suggcst that this definition of "the Union''
rendered South West Africa a part of the Union and therefore also a
part of "His Majesty's Dominions" for the purposes of section I (1)
(a) of Act No. 18 of 1926, which would have meant that all persans
born in South West Africa would in terms of the said Act have been
regarded as "Natural-born British subjects".
If this is indecd what Applicants have in mind, the suggestion would
be unfounded. Section 30 (1) was merely a definition section, ascribing
a meaning ta the expression "the Union" where it occurred in the Act.
In section 1 (1) (in sa far as relevant) that expression occurred only in
the context that certain persons, as described in paragraphs (a), (b) and
(c}, would "in the Union be deemed to be natural-born British subjects"\
Thus the following summary of the position by M. van Rees, in a
memorandum submitted ta the Permanent Mandates Commission at its
Sixteenth Sessions, was perfoctly correct:
"Article 30 lays down that 'the Union includes also, in addition
ta the limits of the Union of South Africa, the mandated territory of
South West Africa'.
It foUows that the persons contemplated in paragraphs (a), (b)
and (c) of Article I are deemed ta be natural-born British subjects
within the limits of the Union and South West A/rica. It does not
follow that any persan barn or domiciled in the latter territory is
deemed to be a natural-born British subject.
Tlùs interpretation is confirmed by the South-African Govern
ment's memorandum of June 19th, 1929 (document C.P.M. 898), in
1 P.M.C., Min., XIV, p. 80.
2 I, p.190.
3 Ibid.,p. 192.
4 Vide para. 6 (b),supra.
' 6 to 26 Nov. 1929, SOUTH WEST AFRICA
whlch it is stated that 'as the mandated territory is not part of His
l\fajesty's Dominions it follows that a person is not deemed to be a
natural-bom British subject merely by reason of his birth in that
terri tory'.
I may say, in short, that, from the point of view of the mandate,
the Act of 1926 does not seem to call for any criticism 1."
11. In the premises Respondent submits that the allegations of Ap
plicants relative to the aforementioned two Acts, and their criticism of
Respondent's explanation regarding the effect thereof, are without
foundation.
D. The Position under the South African CitizenshipAct, 1949 (Act
No. 44 of 1949)
12. Applicants refer to Act No. 44 of 1949 and cite the provisions of
sections 2 (2),5 (r)(e) and 38 thereof 2•
(a) Section 38 of the Act, it is submittcd, has no bearing on the grant
of South African citizenship. As is apparent from the text of the
section, it merely equates certain terms used in prior legislation
with the terminology introduced by Act No. 44 of 1949.
(b) Under section 5 (1) (e), South African citizenship by descent is
conferred on a chi1d (born before 2 September 1949) of a father who
was, at the time of such child's birth, a British subject under the
Jaws then in :forcein the Union, and domiciled in the Union or South
West Africa. The section clearly refers only to the children of a
particular class of persons, viz., British subjects, who had obtained
such status legitimately under Iaws previously in force. This is
further emphasized by section 5 (4) of the Act, which reads as
follows:
"No persan who, immediately prior to the date of commencement
of this Act, was neither a Union national nor a British subject under
the law then in force in the Union, shall be a South Afric:rn citizen by
virtue of the provisions of this section."
Sect~on 5 {r;I (e), therefore, also has no bearing upon Applicants'
thes1s.
(c) Section 2 (2) of the Act, however, granted South African citizenship
by birth to all persans born in South West Africa after 1 July 1926,
and before 2 September 1949, and who complied with the conditions
referred to in the sub-section.
In tenns of section 16 (3) of the Act, such persans were given the
right to renounce their South African citizenship within 12 months
after the date of commencement of the Act.
Tt is conceded that section 2 (2) extended South African citizen
ship to persons bom in South West Africa during the period stated,
including the Natives, without their having been British subjects.
13. Respoi:ident, however, denies that the provisions of the said
Act are inconsistent with the international status of the Territory, and
denies that in passing the Act it has "violated its obligations as stated
in Article 22 of the Covenant and Article 2 of the Mandate" 3•
• P.M.C., Min., XVI, p. r88 (Annex 8 /11)).
2 I, p.191.
3 Ibid.,p.192. COUNTER-MEMORIAL OF SOUTH AFRICA g9
Full powers of legislation were granted to Respondent under the
Mandate. Such powers included the power to apply Respondent's laws
to the Territory. There is nothing in the Covenant or in the mandate
instrument which expressly or by implication prohibited Respondent
from conferring South African nationality upon the inhabitants of the
mandated territory.
The Council of the League, in its resolution of 23 April 1923, recognized
that individual inhabitants of a mandated territory could voluntarily
obtain the nationality of the Mandatory Power 1. It is implicit in this
ruling that if individual inhabitants could legitimately acquire the
nationality of a Mandatory, a de facto position could arise where a large
number of, or even all, the inhabitants could be endowed with such
nationality. It is clear that the fact of there being a common nationality,
shared by the inhabitants of the Mandatory State and those of the
mandated territory, could in terms of the resolution not by itself affect
the international status of the mandated territory. What the Council
objected to was a particular manner of conferment of nationality, and
not the fact of conferment of nationality by itself •
14. It is submitted, furthe1more, that the conferment of South African
citizenship by Act No. 44 of I949 on certain inhabitants of the Territory
did not bring about a diminution of the existing rights of such inhabitants.
In this regard the position is analogons to that which obtained under
Act No. 40 of 1927 3, whereby a second nationality was conferred upon
certain persons in the Territory. The South African nationality conferred
under the said Act did not, to quote M..van Rces,
"... absorb the nationality of so-caUed British subjects in the
nationality of the Union. It deprived them of nothing, but granted
them, on the contrary, the advantage of being able to take part in
the public life of the territory. These persons, therefore, had not lost
their status as British su.bjects 4."
15. Respondent denies the Applicants' allegation that the provisions
complained of were enacted in furtherance of a plan or purpose to
incorpora te the Terri torys.
As already indicated 6,Respondent consistently declared, both before
and after the adoption of this Act, that is was not proceeding to incor
porate the Territory, and that it had the firm intention of administering
the Territory "in the spirit of the Mandate".
It must be pointed out, furthermore, that as far as Respondent is
aware, it was at no stage prior to the commencement of these pro
ceedings suggested by anyone that the adoption of Act No. 44 of r949
was inconsistent with the international status of the Terri tory.
Respondent repeats that it at no stage regarded the provisions of
this Act as being in conflict with the international status of the Terri
tory.
r6. Respondent further denies the allegation that the provisions of
1 Vide para. 4, supra.
2 Ibid., para. 5.
3 Certain provisions of which are cited in para. ûsupra.
• P.M.C., Min., XVI, p, 129.
5 1, p.189.
6 Vide Chap. II, supra.IOO SOUTH WEST AFRICA
the Act in question were intended to, or do in fact, frustra te the objective
of promoting "conditions under which the Territory's inhabitants may
progress toward ,,elf-determination'' 1.
The conferment of nationality by the provisions of the Act cannot
of itselfamowlt to, or be regarded as, an impediment to progress towards
possible self-determination. Applicants have in no way spelled out their
allegations in support of their complaint in this regard. Progress to
maturity is in no way affected by nationality, unless nationality legally
imposes limits on opportunities for progress, which it does not do. The
neutral character of these provisions can perhaps be demonstrated in the
following way: if Act No. 44 of 1949 were to be amended to conform to
the position prior to 1949 as far as South West Africa is concerned, it
would not in any way open new avenues for progress towards political
maturity.
1 1, p.195. CHAPTER V
INCLUSION OF REPRESEKTATIVES FROM SOUTH WEST AFRICA
IN THE SOUTH AFRICAN PARLIAMENT
A. Introductory
I. The South West Africa Affairs Amendment Act, 1949 (Act No. 23
of 1949), provides in the following terms for representation of the Terri
tory in the South African Parliament:
(a) "The terri tory shall be represented in the House of Assembly
by six members to be elected inaccordance with the provisions
of this Act 1."
(b) "The territory shall be represented in the Senate by four
senators, two of whom shall be nominated by the Governor
General, and the other two elected as hereinafter provided 2."
2. Applicants contend that the Act gives effect to a "policy of 'poli
tical integration' ''and violates Respondent's obligations in the following
respects, namely:
(a) the Act is inconsistent with the international status of the Territory
because it is "part of a plan to incorporate the Territory politically",
and "erodes the international status of the Territory;" 3 and
(b) the Act "impedes opportunity for self-determination by the in
habitants", and it "exdudes 'natives' from the processes of self
government'' 3•Respondent will deal with these charges scparately.
B. The Allegation that the Act Is "lnconsistent with the
4
International Status of the Territory"
3. Respondent submits that the fact that there is representation of
South West Africain the South African Parliament cannot and does not
affect the international status of the Territory. Respondent has the duty
of administering the Territory, and such representation has the obvious
advantage that representatives of the Territory are enabled directly to
inform Respondent's Parliament as to the needs of the Territory and to
influence its decisions in regard thereto. As Respondent's Parliament is
the ultimate authority in South West African affairs, this right of repre
sentation can ·onlybe to the benefit of the Territory.
As stated in Chapter II above, the granting of such representation
was already foreseen in I920 by General Smuts s and the Commission
of Enquiry as to the future Constitution of the Territory in 1921 like
wise recommended a form of government giving the population of South
1 Sec. 27 (r), iThe Laws a/ South West Africa r949, Vol. XXVIII, p. cSz.
z Sec. 30 (1), iThe Laws of South West Africa r949, Vol. XXVIII, p. r82.
3 1,p. 193.
4 Ibid.,p. 189.
' Vide Chap. II, para. 4, supra.102 SOUTH WEST AFRICA
West Africa "full representation in a Provincial Cormeiland in the Union
Parliament" 1•
4. Respondent submits that the fact that the South West African
representatives participate in deliberations relating to the Territory, is
in no way inconsistent with the international status of the Territory.
And the fact that such representatives can also speak and vote on matters
regarding Respondent's domestic affairs, can also not affect the interna
tional status of the Territory. Respondent, as a sovereign State, has full
authority to allow anyone it wishes to participate in its government.
5. The Commil:tee on South West Africa, whose report for the year
1956 is cited by the Applicants 2,could not suggest that, seen objectively,
representation of a mandated territory in the legislative institutions of
the Mandatory Power would be inconsistent with the international
status of such Territory. In the very report cited by Applicants the
Committee stated, inter alia, that it could-
"... conceivc of circumstances in which reprcsentation of a Man
datcd Territory in the legislative institutions of the Mandatory
Power might be of certain advantage to the inhabitants, after due
consultation with them and with proper safeguards for their special
status, as a means of extending to them political and parliamentary
experience and an opportunity to take part in making the laws
under which they live, especially if it were not feasible for the
3
Territory to have a legislative organ of its own ''.
6. In this regard it is significant that in the case of certain trust
territories, formerly undcr mandate, provision was made for their
representation in lcgislatures external to such tcrritories. Thus under the
Nigerian Constitution of 1951, the British Cameroons, a territory under
trusteeship, had representation in the Nigcrian House of Representatives.
and also in the regional legislative organs "· And the Trust Territory of
the Cameroons under French Administration was, as an "Associated
Territory" of the French Union, givcn reprcsentation in the organs
of the French Parliament 5•
So also, under the Gold Coast constitutional reform of 1953, the Trust
Territory of British Togoland was allotted 14 seats out of a total of
104 scats in the Gold Coast Legislative Assembly. While the northern
sector of the Territory was thus treated as an integral part of the Gold
Coast, the south again was rcprescntcd by 21 members out of 39 on the
regional body of the Trans~Volta/Togoland Council. The French Sector
of Togoland aise, formed part of the French Union as an "Associated
Territory" 6•
Although the idea of having these so-called "administrative unions"
was at various times questioned by certain States in the United Nations,
the Trusteeship Council, which at the request of the General Assembly 7
1 U.G. 24-1921, para. 7, p. 4. VideChap. II,para. 4, supra.
2 I, pp.192-193.
l G.A ., O.R.Eleventh Sess.,Sup. No. 12 (A/3151), p.8.
4 Chowdhuri, R. N., International Mandates and Trusteeship Systems (1955),
p.270.
~ Ibid., pp.270-;:71.
6 Ibid., p271.
7 Vide G.A. Resolution 224 (III).18 Nov. 1948, in U.N. Doc. A/Sro, pp. 86-87, COUNTER-MEMORIAL OF SOUTH AFRICA 103
gave special consideration to the aforementioned constitutional arrange
ments, while suggesting certain safeguards intended for the preservation
of the separate status and identity of the trust territories participating
in such unions 1, did not find that the mere representation of a trust
territory in an external legislative body was inconsistent with the
separate international status of such territory 2• Consequently the
General Assembly permitted continuation ofthe arrangements concemed.
7. Respondent also denies. the allegation that the Act is "part of a
plan to incorporate the Territory". Representation of the Territory in
the South African Parliament, such as provided for in the Act, had been
requested of Respondent in a resolution of the House of Assembly of the
Union Parliament i3 1947, which was brought to the notice of the
United Nations • In that and the followingyears Respondent repeatedly
explained that such representation was proposed for the benefit of the
Territory, and gave the assurance that it "did not mean that Territory's
incorporation or absorption in the Union of South Africa" 4 ,an assurance
which was fonnally noted by the General Assembly of the United
5
Nations • Although resolutions were proposed in organs of the United
Nations during the years 1949 and 1950 to the effect that the Act con
stituted "a violation of the Charter", such proposed resolutions were
repeatedly rejected 6.
The frank and open manner in which Respondent dealt with this
matter-particularly by advising the United Nations Organization of its
intentions and proposed actions-belles, it is submitted, any suggestion
that the Act in question was passed for the purpose of furthering an
"insidious and elusive" process of "piece-meal incorporation" of the
Territory 7•
C. The Allegations that the Act "lmpedes Opportunityfor Self-Determi
nation" and "Excludes 'Natives' from the ProcessesofSe1f-Government" 8
8. To substantiate this charge, Applicants rely in the first place on
their preceding contention that representation of the Territory in Re
spondent's Parliament is inconsistent with the international status of
the Territory. The alleged "erosion" of the international status of the
Territory is stated to impede opportunities for self-determination by
the inhabitants of the Territory 8• Applicants do not state in which
manner opportunities for self-determination are in fact irnpeded.
Secondly, they aver that representation of the European inhabitants
of the Territory in the South African Parliament "excludes 'natives'
and G.A. Resolulion 563 (VI), 18 Jan. 1952, in G.A., 0.R., Sixth Sess., Sup. No. 20
(A12n9), p. 59·
T.C. Resolution 293 (VII), 17 July 1950, in T.C., O.R., Seventh Sess., Resolutions,
Sup. No. 1 (T/794), pp. 49-55.
i Vide G.A ., O.R., Seventh Sess., Sup. No.12 (A/2151), pp. 28, 36, 56.
3 Vide Chap. Il, para. 15, supr,i.
4 G.A,, O.R.• Thfrd Sess., Pat't I, 164th Plenary Meeting, 26 Nov. 1948, p, 588.
Vide also Chap. II, paras. 15-r8, .,upt'a.
s Vide Chap. II, para. 18, sup.,1.
6 Ibid., para.20.
'!1, p. 186.
8 Ibid., p. 193.104 SOUTH WEST AFRICA
from the processcs of self-government", but the only process of self
government here in issue is representation in Respondent's Parliament
-the vcry act of which Applicants make complaint.
Respondent denies, in any event, that the exclusion of the Native
inhabitants of the Territory from participating in elections for repre
sentatives in the South African Parliament in any way impedes their
opportunities for progress towards possible self-determination. In
Respondent's view, such representation as here in issue would not, having
regard to their present stage of development, needs, traditions, culture
and attendant circumstances, serve the best interests of the Native
inhabitants. Accordingly, as has been indicated elsewhere in this Counter
Memorial 1, alternative opportunities for development in the processes
of self-government and for proivess towards possible self-determination,
more suited to their nceds and circumstances, are provided for the various
Native groups of the Territory. The representation of the European
inhabitants in Respondent's Pariiament cannot and will not in any way
retard the political advancement of the Native inhabitants of the Terri
tory.
1 Vide Respondent's reply to the charges made by Applicantsin Chapter V of the
Memorials. CHAPTER VI
ADMINISTRATIVESEPARATIONOF THE EASTERNCAPRIVI
ZIPFEL
A. Introductory
I. Applicants contend that "Administrative Separation of the Eastern
Caprivi Zipjel" is inconsistent with the international status of South
West Africa, and state that the Committee on South West Africa, in its
report for the year 1955, "condemned" the separate administration of
the said area 'as a violation of the Mandate and rejected the avowed
purpose of the action, for reasons which the Applicant[s] fully endorse" 1•
In support of this allegation, Applicants cite an extract from the said
report in which the Committee expresscd the view that the "adminis
trative separation of any portion of the mandated territory would place
obstacles in the way of the fulfillment of" one of the conditions laid
down by the League of Nations for the termination of the mandates
regime in respect of any mandated territory, namely that "it [the Terri
tory] must be cap2ble of maintaining its territorial integrity and political
independence" •
In the extract cited by Applicants the Committee also questioned the
reasons advanced by Respondent for the separate administration of the
area •
2. Before dealing with Applicants' allegations, it is considered advis
able to refer again, briefly, to Respondent's general policy regarding the
control and administration of Native Affairs in South West Africa, and
then to deal in chronological order with the following three distinct
phases in the ;idministration of the Eastern Caprivi Zipfel, namely:
(a) the period 1921 to 1929, when the area was administered by the ,
High Commissioner of South Africa as if it wcre a portion of the
Bechuanaland Protectorate;
(b) the period 1929 to 1939, when the area was administered by the
Administrator of South West Africa as representative of the South
African Government; and
(c) the period 1939 to the present, during which the area has been
administered by the South African Minister of Native Affairs (now
designated the Minister of Bantu Administration and Development).
B. The Contml and Administration of Native Affairs Genera11y
3. From the inception of the Mandate the South African Govemment
assumed direct contrai of Native Affairs in South West Africa. Certain
legislative and administrative powers in regard to Native Affairs were
given to the Administrator of the Territory, but such powers were exer
cised under the direction and control of the Governor-General, i.e., the
Union Government. When the South West Africa Constitution Act, No.
1 I, p. 193.
2 Ibid.,pp.r93-194.ro6 SOUTH WEST AFRICA
42 of 1925, was passed, Native Affairs was one of the subjects, which
was expressly excluded from the competence of the Lcgislative Assembly
of South West Africa, and the Administrator continued to act in respect
thcreof as before, i.e., under the direction and control of the Governor
General-in-Council. The South West Africa Native Affairs Adminis
tration Act, 1954 (Act No. 56 of 1954), wlùch came into operation on
r April 1955, transferred the powers previously held by the Administrator
in regard to Native Affairs to the South African Government's Minister
of Native Affairs, who fonctions under the direction and control of the
Govemor-General-in-Council. The effect of the said 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
1
(the Minister of Native Affairs) •
The position as stated in this paragraph did not apply to the Eastern
Caprivi, which is dealt with in the next succeeding paragrnphs.
C. Administration of the Eastern Caprivi Zipfel, 1921 to 1929
4. The Caprivi Zipfel is a long narrow strip of territory forming the
extreme north-eastern part of South West Africa., extending between
Angola and Bechuanaland, towards the Rhodesias. As explained else
where in tlùs Counter-Memorial , it was obtained by the German
Government on IJuly r890 as a zone of free access from her Protectorate
to the Zambesi River, and was to be not less than 20 English miles in
width at any point.
5. From the very inception of the Mandate, difficulty was cxperienced
in effectivcly controlling that portion of the terri tory east of a Jine
between 23° and 240 longitude, known as the Eastern Caprivi Zipfel (but
often referred to as the Caprivi Zipfel, or simply as the Caprivi), because
of its geographical situation and the lack of communications with the
rest of South \Vest Africa. These circumstanccs gave rise to special
provisions for the administration of the area.
According to Proclamation No. I2 of 1922 (S.A.) 3, the Caprivi Zipfel
had since the withdrawal of martial law, on 1 January 1921. been ad
ministered by the High Commissioner for South Africa, the Governor
General, who as representative of the British Government was then
also in charge, inter alia, of Bechuanaland. By that Proclamation the
High Commissioner was declared to be the Administrator, with legislative
powers, of the Caprivi Zipfel as from 1 January r92r. The High Com
missioner, by Proclamation No. 23 of 1922 (S.A.), provided for the
administration of the Eastern Caprivi Zipfel as if it were a portion of
the Bechuanaland Protectorate, and for the laws of the Protectorate
to be applied thereto. The Resident Commissioner of the Protectorate
was to exercise authority in the area on behalf of the High Commissioner.
The reason for the issue of Proclamation No. I2 of 1922 (S.A.) was
stated by the Administrator of South West Africain the following terms:
"By reason of its geographical situation and lack of communica-
l VideChapter VII, paras. 2-9,infra.
2 Videthe account of the History of South West Africain Book III of this Counter
Memorial.
3Second paragraph of the preamble. COUNTER-MEMORIAL OF SOUTH AFRICA IOJ
tion the Administration of Caprivi Zipfel by this Administration is
1
im practica ble ."
6. During the Third Session of the Permanent Mandates Commission,
in 1923, Sir Frederick Lugard pointed out that there was a district
known as the "Caprivi Zipfel area" which had been detached from the
administration of the Territory, and in respect of which no report had
been submitted to the Commission. Major Herbst, the South African
representative, "explained that the area in question consisted in the
rainy season of a huge swamp, which could not be approached from the
side of the mandated territory. The High Commissioner had, therefore,
been asked to take up its administration 2."
And the Commission, in its special observations regarding adminis-
trative organization in South West Africa~
"... took cognisance of the fact that that part of the mandated ter
ritory which was known as Caprivi Zipfel had, for geographical
reasons, been detached from the general administration of the terri
tory and was administered under the direct control of the Governor
General for South Africa 3".
7. In 1924, during the Fourth Session of the Permanent Mandates
Commission, Sir Frederick .Lugard again asked if the Administration
of South West Africa administered the Caprivi Zipfel area. Mr. Hofmeyr,
who then represented Respondent, answered that the area was adminis
tered by the High Commissioner for South Africa, and that it had vcry
little intercourse with the rest of the territory under mandate 4•
8. During the Sixth Session of the Permanent Mandates Commission
in 1925, the matter of the administration of the Eastern Caprivi Zipfel
was again brought up. From the questions put to the South African
representative, Mr. Smit, it seems that at least certain members of the
Commission doubted the propriety in law of the administration of the
area through the High Commissioner for South Africa.
Thus M. van Rees wished to know whether the area was "... still
regarded as part of the mandated territory in spite of its incorporation,
for administrative pw-poses, in Bechuanaland?" 5• And M. Freire
d'Andrade emphasized that--
"... the arrangement whereby the Caprivi zone was being.adminis
tered as part of Bechuana.land was directly contrary to the mandate,
and it was the duty of the Commission to obtain complete infor
mation in regard to the laws and administration of Bechuanaland 6".
In the result the Commission requested a special report regarding
the position of the Caprivi, and the South African representative pro
mised that a memorandum would be submitted.
9. In compliance with the Commission's request a memorandum
7
dated 20 November 1925 was submitted toit • In the memorandum it
was explained that in effect there were two administrators for South
1 U.G. 2I-1923, p.2.
2 P.M.C., Min., III,p. 102.
3 Ibid., p.325 (Annex 13).
• Ibid.,IV, p. 57.
' Ibid.,VI, p. 58.
6
7 Ibid., p.61.
L. of N. Doc. C. 7T7, 1925,VL108 SOUTH WEST AFRICA
West Africa, each exercising the authority delegated to him by the
Mandatory; firstly the Administrator of the Territory v,riththe exclusion
of the Caprivi Zipfel, and secondly, the Administrator of the Caprivi
Zipfel. In both cases the supreme authority was in the hands of the
Mandatory, on whose instructions the two Administra tors acted.
10. In 1925, during the Seventh Session of the Permanent Mandates
Commission, the administration of the Caprivi Zipfel was again dis
cussed. According to the minutes, M. Freire d'Andrade-
"... reminded the Commission that he had ohserved last year that
this territory was under the administration of the High Commis
sioner for South Africa. He did not clearly understand what was
the present position 1.''
In reply Sir Frederick Lugard said, inter alia,that:
"... neither the High Commissioner for South Africa nor the Resi
dent Administrator of Bechuanaland were under the authority of
the Union Government, and that the Union Government could not
therefore issue instructions to them.
The principle at issue was whether the mandatory Power had
authority to delegate the government of a portion (large or small)
of a mandated territory Joanother authority without the permission
of the Council of the League. This was clearly an important principle.
He thought it was important to note that the Governor-General
administered the Caprivi zone as a delegate of the mandatory
Power and notas High Commissioner for Bechuanaland 2." (Italics
added.)
And M. Rappard isreportcd as having said that-
"... the manda tory Power was in this case the Union of South
Africa, which must clearly assume full responsibility. The Com
mission had reason to doubt whethcr the Administrator of Caprivi
Zipfcl was in fact responsible to the mandatory Power. The Com
mission must, however, presume that the administrative authority
in Caprivi Zipfel was acting, so far as Uùs territory was concerned,
on behalf of the mandatory Power, and that the mandatory Power
was ultimatdy responsible. It must, in fact, be assumed that the
mandatory Power had not delegated its rcsponsibility and that its
choice of the High Commissioner or of the Resident of Bcchuanaland
to administer this territory had been made on the same footing, so
far as the Commission was concerned, as its choice of Mr. Hofmeyr
to administer the territorv of South-West Africa. The Union Govern
ment retained the mandate and had chosen a certain person to
administer the territory 3."
II. The Commission again discussed the matter at the Eighteenth
Meeting of its Seventh Session in 1925. Sir Frederick Lugard then said
that-
"... the es,ential question for the Commission to ascertain was
whether the Administrator of Caprivi Zipfel received his instructions
from the Gc,vernment of South Africa direct or from the Adminis-
1 P.M.C., Min., VII, p. r6.
2 Ibid., pp.I6·Iï,
3 Ibid., p17. COUNTER-MEMORIAL OF SOUTH AFRlCA
109
tration of the mandated territory. In the former case, the mandate
would be divided into two parts; in the latter, it would be merely
a delegation by the Administrator t."
And the Commission, in it:, observations to the League Council, noted
that it-
"... would appreciate a clear and concise statcment from the manda
tory Power explaining, from the legal standpoint, the administrative
relations betwcen Caprivi-Zipfel and the mandatory Power. It is
particularly anxious to know whether the Administration takes its
instructions from the Administrator for South-West Africa or
whether it is directly under the control of the Govcrnment of the
Union of South Africa 2."
I2. Although no further action was takcn by the Permanent Man
dates Commission in regard to the matter, it is apparent from the :dore
going that misgivings were expressed as to the propriety of administering
the Eastern Caprivi Zipfel through the Bechuanaland Authorities and
subject to the laws applicable in the Bechuanaland Protectorate. These
misgivings influenced Respondent to bring about a change in the
administration of the arca, as will be dealt with in the next succeeding
paragraphs.
D. The Period 1929 to 1939
13. By Proclamation No. 196 of r929 (S.A.), the administration of
the Eastern Caprivi Zipfel was transferred from the Bechuanaland
Authorities to the South West Africa Administration. The Adrninistra
tor of South West Africa was appointed as Administrator of the Caprivi
Zipfel, and the Govemor-General's legisJative powers wcre delegated
to the Administrator. And by Proclamation No. 26 of 1929 (S.W.A.),
the Administrator applied the laws of South West Africa to the Caprivi
Zipfel.
14- During the Eighteenth Session of the Permanent Mandates Com-
mission in 1930, Lord Lugard enquired as to-
"... the reasons for which the Caprivi Zipfel which properly bc
longed to the mandated terri tory and had hitherto been administered
under the Bechuanaland territory, had now bcen retransferred to
the administration of the mandated territory 3".
In reply the South African reprcsentative, Mr. Courtney Clarke, said
that-
"... so far as he was aware, this was a question that had been raised
by the Mandates Commission, and that the transfer had been carried
out in deference to the Commission's wishes. He hoped that, should
diffi.culties arise inthe administration of so remote a territory, the
members of the Commission would remember that it was they who
had suggested the transfer 3."
According to the record, Lord Lugard explained that-
"... the Mandates Commission had asked why a part of the
t P.M.C., Min., VII, p. 135.
2 Ibid.,p.217 (Annex 14).
J Ibid., XVIII,p. 132.IlO SOUTH WEST AFRICA
mandated territory was being administered separately, but had
neuer insisted on its retrans/er 1". (Italics added.)
15. The administration of the Caprivi Zipfel by Respondent through
the agency of the Administrator of South West Africa continued from
1929 to 1939. Duri.ngthat period, constant difficulties wcre experienced in
the administration of the area by reason of its geographical inaccessibility
from the rest of South West Africa. In fact these difficulties, which are
dealt with more fully hereinafter 2,had, according to an official report,
resulted in "a period of almost complete stagnation" 3•
The South West Africa Administration accordingly requested Res
pondent to be relieved of the administration of the area 4.
E. The Period 1939 to Date
16. By Proclamation No. 147 of 1939 (S.A.), it was provided that
the Eastern Caprivi Zipfel would in future be administered by Res
pondent's Minister of Native Affairs. The second paragraph of the pre
amble to the Prodamation read as follows:
"... cxperience has shown that the geographical position of that
r.ortion of the Caprivi Zipfel ... referred to as the Eastern Caprivi
Zipfel, rnakes it expedient that it should be administered by the
Minister of Native Affairs of the Union or by another Minister of
State of the lJnion acting on his behalf; ... ~"
17. In the Annual Report to the League of Nations in 1939, the
reasons for the transfer of the administration of the area to the Minister
of Native Aflairs were explained as follows:
"Trans/er o/ Administrative Contrat o/ the Eastem Caprivi Ziptet
la the Union Native Afjairs Department.~Ever sincc it was dccreed
by Union Proclamation No. 196 of 1929 that the Caprivi Zipfel ...
should be ad.ministered as part of the said Territory, difficulty has
been experienced in controlling the Eastern portion (the portion to
the East of the Kwando River) owing to its geographical position.
The only way of reaching it from Windhoek is either through
Bechuanaland or by rail through the Union and the two Rhodesîas
via Livingstone. The latter route was the one usually taken. A
direct way via Grootfontein is impossible, there being two large
rivers (the Okavango and the Kwando) to be negotiated and a dry,
uninhabited, trackless, desertlîke stretch to be traversed.
l\foreover, more direct control of the area was very necessary if in
the interests of the residents and of adjoining terri tories it was to be
kept free from cattle diseases.
It was thercfore decided that from a point of convcnience control
subject, however, to the terms of the Mandate, should be vested in the
Union Minister of Native Affairs and this was accomplished by the
promulgation of the Eastern Caprivi Administration Proclamation,
1939 (Proclamation No. 147 of r939) 6." (Italics added.)
t P.M.C., Min., VIII, p. IJ'.l.
z Vide paras. 17 and 29-31, infra.
3 Report on the Administra/ion ofthe Eastern Caprivi ZiPfel, 1940, p. 10.
• Ibid.,p. II.
5 Proc. No. 147 of 1939 (S.A.), 21 July 1939, in The Laws of South West Africa,
z939, Vol. XVIII, p.28.
6 U.G. 30-1940, pp. 134-135. COUNTER-MEMORIAL OF SOUTH AFJ{ICA III
And in the report the hope was expressed that by such transfer-
"... the Government will b'3able to comply more fully with the
tenns of the Mandate by devoting more attention to the welfare of
the Native popidation t". (Italics added.)
18. Early in 1939, and before the promulgation of Proclamation No.
147 of 1939 (S.A.), the Permanent Mandates Commission was informcd
of its proposed terms and effect and of the reasons for bringing about
a change in the administration of the arca.
After discussion of the matter the following observation was made
in the Commission's report to the Council of the League.
"The Commission learned from the annual report that, owing to
the difficulty of satisfactorily controlling the eastern part of the
Caprivi Zipfcl, it is contemplatcd making over the control of this
area to the Union Department of Native Affairs. Tt noted the state
ments of the accredited representative to the effect that the officer
administering the area in question would work in dose co-opcration
with the mandatory Government wlùch would be acting for the
Administration of South West Africa and that information regarding
that part of the territory would be included in the annual reports
as hitherto. ·
The Commission holds Uieview that the administrative arrangement
contemplated calls for no observations on its part provided all the
provisions of the mandate are properly applied in the eastern portion
of the Caprivi ZiPfel 2.''(Italics added.)
19. From the aforegoing account of the history of administration of
the Eastern Caprivi Zipfel it is clear, in Responclent's submission, that:
(a) ever since the inccption of the Mandate, it has been found im
practicable to administer the area from South West Africa; in fact
the attempt to do so over the yea1s 1929 to 1939 proved a failurc;
(b) the Permanent Mandates Commission was satisfied that adminis
tration of the area through the Administrator of South West Africa
was impracticable;
(c) the separation of the administration of the area from the adminis
tration of the rest of the Territory was intended by Respondent to
opera te for the benefit of the inhabitants of the area;
(d) the separation did not affect the application of the Mandate to the
area, and it was never suggested in the organs of the League of
Nations that such separation could be regarded as an attempt at
annexation or incorporation;
(e) the Permanent Mandates Commission had no objection to the
transfer of the administration and control of the area to the Union
Department of Native Affairs, provided al! the provisions of the
Mandate were properly applied in the area.
F. Present Administration of the Eastern Caprivi Zipfel
•
20. As far as the exercise of legislative fonctions in respect of the
Eastern Caprivi Zipfel is concerned, the position is the same as that
which pertains in respect of "native affairs or any matters specially
t U.G. 30-1940, p. 175.
2 P.M.C., Min., XXXVI, pp. 280-281 (Annex 14).II2 SOUTH WEST AFRICA
affecting natives" 1 in the rest of the Territory. ln both cases no Act of
the South African Parliament applies unless it is expressly declared
to be applicable. In both cases the State President can legislate by
proclamation as long as the provisions thereof are not repugnant to,
or inconsistent with, an applicable Act of Parliament. In both cases an
Ordinance of the Lcgislative Assembly of South West Africa can apply
only when it ha.s received the prior consent of the State Prcsident-in
Council. ln respect of the Eastern Caprivi Zipfel, an Ordinance would
also have to be expressly declared to be applicable, but this additiona1
requirement is mcrely one of procedure. As the whole of the Eastern
Caprivi Zipfel is a.Native reservc, and as the population consists almost
entirely of Natives, no Ordinances of the Legislative Assembly of South
West Africa have in fact been applied to the area. In this regard the
practical position in the rest of the Territory is somewhat different
inasmuch as Ordinances of the Legislative Asscmbly in fact rcgulate
certain aspects of Administration such as, for example, education,
public hcalth services, etc., which affect all the inhabitants, including
the Natives.
zr. The Eastern Caprivi is at prescnt administered as a Native Re
serve by the samc Minister who has, since r April 1955, also cxercised
control. on behalf of the South African Govemment, of Native Affairs
in the rest of South West Africa, i.e., the Minister of Bantu Adminis
tration and Developmcnt 2•The only practical differcnce in the adminis
tration of the two arcas is that in the Eastern Caprivi all matters of
administration are under the contrai of the said Minister while in the rest
of South West Africa, although the said Minister has control of Native
Affairs generally, the Administrator controls certain aspects of govern
ment such as, for example, education, public health services, etc., which
concern all the inhabitants, including the Natives. Save for such limited_
aspects of government affccting Natives in the rcst of South West Africa,
which arc controlled by the Administrator, therc has, as from I April
1955, been complete co-ordination between the administration of Native
Affairs in the Ea;;tern Caprivi and in the rest of South West Africa.
G. The Allegation that Administrative Separation of the Eastern Caprivi
Zipfel ls "lnconsistent with the International Status of the Territory"
22. Applicants allege that the transfer of the administration of the
Eastern Caprivi Zipfel from the Administrator of South West Africa
to the South African Government by Proclamation No. 147 of 1939
(S.A.) constitutes an act which is "inconsistent with the international
status of the Terri tory". Save for quoting and cndorsing certain con
clusions of the Committee on South West Africa., which will be dealt
with hereinafter, Applicants do not advance any argument in support of
their allegation.
Respondent submits that such transfer could not. and did not. in
any way, affect the international status of South West Africa. In Re
spondent's submission it is totally irrelevant, as far as the international
status of the Territory is concerned, whether one or another organ or
1 Act No. 42 of IO:J25,sec. 2(a),in Laws of South West Ajrica, Vol. Il (1923-
1927),p. 16.
2 Vide Chap. V.II, paras. 2-9, infra. COCTNTER-MEMORIAL OF SOUTH AFRICA II3
agency of Respondent is responsible for the administration of the Terri
tory or a portion thereof.
Separate administration by itself, it is submitted, cannot affect South
West Africa's territorial integrity or its status as a separate international
entity.
23. The record of history shows that the transfer of administration
of the Eastern Caprivi was made because of Respondent's desire to
achieve more effective administration and to serve the best interests of
the inhabitants of the area, and that there is no substance in Appli
cants' suggestion that such transfer is indicative of an intention to in
coryorate the Territory or a part thereof. In fact Respondent had itself
intimated to the League of Nations that the administrative arrange
ments of the Eastern Caprivi were "subject to the terms of the
Mandate" 1• And the Permanent Mandates Commission held the view
that the arrangement "calls /or no observations on its part provided ail
2
the provisions of the Mandate are properly applied" •
24. Moreover, as already pointed out 3, there is Jess administrative
separation at present than there was during the period 1939-1955.
Since 1955 Respondent has, through its Minister of Native Affairs,
(now designated the Minister of Bantu Administration and Develop
ment), been in direct control of Native Affairs generally, both in the
Eastern Caprivi Zipfel, and in the rest of South West Africa. Only
certain limited aspects of government affecting Natives in the rest of
South West Africa are controlled by Respondent through the Adminis
trator.
H. The Views of the Committee on South West Africa,
as Endorsed by Applicants
25. Applicants say that the Committee on South West Africa in its
1955 report "condemned this separation as a violation of the Mandate" 4•
In the first place Respondent denies that the Commit tee found a violation
of the Mandate. What the Committee in fact did was to question-
"... whether the administrative separation of any section of the
Territory is conducive to the attainment of the objectives of the
Mandate System~".
The Committee was of the opinion-
"... that such a separation is likely to prejudice consideration (b) of
the 'General Conditions which must be fulfilled before the Mandates
regime can be brought to an end in respect of a country placed under
that regime', approved by the Council of the League on 4 September
1931, namely, that 'It (the Territory) must be capable of maintaining
its territorial integrity and political independence' 6".
And the Committee considered-
"... that any administra.tive separation of any portion of the Man-
1 Vide para. 17, supra.
2 Ibid,,para. 18.
3 In paras. 20 and 2r, supra.
• I,p. 193.
' G.A., O.R., Tenth Sess., Sup.No. 12 (A/2913), p.rn; I,p. r93.
~ Ibid.Also I, pp. 193-194.II4 SOUTH WEST AFRICA
dated Territorywould place obstacles in the way of the fulfillment of
tlùs important condition laid down by the League of Nations 1".
There was clearly no condemnation of separate adnùnistratîon "as
a violation of the Mandate".
26. The aforementioned "Generai Conditions" referred to by the
Committee were formulated in response to a resolution by the Council
of the League of Nations, dated 13 January 1930, which read as follows:
''Being amdous to determine what general conditions must be ful
filled before the mandate regime can be brought ta an end in respect
of a country placed under that regime, and with a view to such cleci
sions as it may be called upon to take on this matter, the Councîl,
subject to any other enquiries it may think necessary, requests the
Mandates Commission to submit any suggestions that may assist the
Council in coming to a conclusion 2."
The answer of the Mandates Commission was as follows:
"The Mandates Commission is of opinion that the emancipation of
a territory under the mandate regime should be made dependent on
two c1assesof preliminary conditions:
(i) the existence in the territory concerned of de facto conditions
which justify the presumption that the country has reachecl the
stage of development at which a people has become able, in
the words of Article 22 of the Covenant, 'ta stand by itself under
the strenuous conditions of the modern world';
(ii) certain guarantees to be fumished by the territory desirous of
emancip;1.tion to the satisfaction of the Lcague of Nations, in
whose name the mandate was conferred and has been exercised
by the Mandatory 3."
After stating certain general considerations regarding the question
"Whether a people which has hitherto been under tutelage bas be
corne fit to stand alone without the advice and assistance of a manda
tory ... ",
the Commission concluded as follows:
"Subject 1:othese general considerations, the Commission suggests
that the foHowing conditions must be fulfilled before a mandated
territory can be released from the mandatory regime--conditions
which must apply to the whole of th~ territory and its population:
(a) it must have a settled Government and an administration
capable of maintaining the regular operation of essential
govemrnent services;
(b) it must be capable o/ maintaining its territorial integrity and poli
tical independence;
(c) it must be able to maintain the public peace throughout the
whole territory;
(d) it must have at its disposai adequate financial resources to pro
vide regularly for normal govemment requirements;
t G.A., O.R., Tetith Sess., Si,No. t2 (A/2913), p.10. Also 1,p. 194.
z L. of N., O.].,1930 (No. 2),p. 77.
3 P.M.C., Min., XX, p. 228 (Annex 16). COUNTER-MEMORIAL OF SOUTH AFRICA II5
(e) it must possess laws and a judicial organisation which will
afford equal and regular justice to ail 1." (Italics added.)
27. It is obvious, Respondent submits, that condition (b), to which
the Committec on South West Africa referred, concerns the ability of a
territory to maintain its territorial integrity and political independence
a/ter having been granted independencc, in the samc way as the other
conditions refer to the ability of such a territory to maintain essential
services, public peace, etc.
In the premises, Respondent submits that the said condition was
intended to arise for consid,ôration only when it is proposed to bring
the mandatory regime in respect of a particular tenitory to an end by
the grant of independence. It would, for example, have no application
in a case where the mandatory regime in respect of a territory is termi
nated by lawful incorporation of that territory in another independent
State. And its application would be of a qualified nature if, for example,
partition is lawfully brought about in the process of permitting each of
different population groups to achieve self-determination.
In so far as the said condition may at ail be relevant in the consider
ation of the propriety or otherwise of an act performcd in the adminis
tration of a mandated territory the ultimate destiny of which has not
yet been determined, it cannot serve as a ground for questioning such
an act unless thepurpose of tht act is tmlaw/ul---e.g., unilateral annexation
or incorporation, as to which see Chapter I, paragraphs 5 to ro, supra,
or which is intended to frustrate or impede political advancement
towards possible self-determination, as to which see Chapter I, paragraphs
II to 21, supra.
28. The Committee on South West Africa did not question Respon
dcnt's purpose in providing for the Administration of the Eastern
Caprivi by the Minister of Native Affairs. The Committee mcrely cx
pressed the opinion that "administrative separation would place ob
stacles in the way of the fulfillmcnt of this important condition"
i.e.. the condition clcalt with in paragraph 27, supra-without stating in
which way the arrangements relative to the administration of the
Eastern Caprivi could interfere with the advancement of the peoples of
that area towards political maturity and the exercisc of possible self
determination.
Respondent in any event denies that the transfer of the administration
of the Eastern Caprivi to the Minister of Native Affairs, taking into
consideration the sound reasons which motivated such action, as well as
the present stage of development of the inhabitants of the area, is likely
to prejudice the political advancement of the peoples of the area, what
ever the ultimate destiny of the Territory may be. On the contrary, the
superior administration which has been made possible by the said transfer
of administration, is a positive contribution towards progress generally,
including the political advancement of such peoples.
29. Applicants also endorse the views of the Committee with regard
to the reason advanced for placing the Eastern Caprivi under the adminis
tration of the Mînister of Native Affairs. The Committee, in questioning
the reason advanced, referred 1:oa statement by the South African Prime
1 P.M.C., Min., XX, pp.228-229.u6 SOUTH WEST AFRICA
~linister in Parliament on I June 1951. The Prime Minister's statement
was as follows :
"The western part borders on South-West Africa and came under
the South-West Africa Administration and under the courts of
South-West Africa, but for administrative reasons the eastern part
was placed under the Union's administration. It was not anncxed to
the Union, but just as an understanding existed-a ruling-that
Walvis Bay, which is Union terri tory and does not belong to South
West Africa, was for administrative purposes placed undcr the
control of South-West Africa, so the eastern part of the Caprivi
Strip for administrative reasons was placed under the Union Govern
ment. The reason for this is that the eastern part of the Caprivi
Strip is virtually inaccessibleto South-West Africa. To get there it is
necessary to go through Bechuanaland, and perhaps even also around
the Zambesi and beyond it. It was practically inaccessible, and it
was almost impossible, or in any case inconvenient, to have court
sessions in tb.at area whcn you had to get your witnesses from South
West Africa. Thereforc, it is proposed here to legalise the existing
state of affairs, because the whole Caprivi Strip belongs territorially
to South-West Africa. It is proposed here to place a section of it,
namely, the eastern section of the Caprivi Strip, under the adminis
tration ofthe Union Government both for judicial and administrative
purposes. That is what the Bill contains and all its clauses are
1
practically self-explanatory ."
30. The Committee, it should be noted, did not rejectthe reason given
by the Prime Minister, as alleged by Applicants, but merely stated that,
as the Eastern Caprivi could be rcached from the administrative centres
ofSouth Africa only through non-Union terri tories, it was-
''... not convinced that the direct administration of the region by the
Union has, in fact, made it more accessible to the centre of adminis
tration 2". (Italics added.)
Furthermore, in making this statement, the Committee was probably
not as fully informed as the Permanent Mandates Commission had
been, and therefore probably did not appreciate adequately the nature
and implications of the difficulties concerning communication with, and
accessibility of, the Eastern Caprivi. It is entirely erroneous to suggest
that the area can be reached as easilv from the rest of South West Africa
as from the administrative centre of Respondcnt in South Africa. Even
at the present time there is no direct communication between theEastern
Caprivi and the rest of South West Africa. The possibility of an ovcrland
route from the Police Zone of South West Africa through the Okavango
Native territory and the Western Caprivi Zipfel to the Eastern Caprivi
has been fully investigated, with a completely negative result. The
geographical terrain is such that although the l\fashi or Kwando river
could with extreme difficulty be r~ached from Windhoek in approxi
mately eight days, the swamps in the vicinity of the said river cannot be
traversed. They are infested with- crocodiles and hippopotami, and a
bridge at least three miles in length would have to be constructed.
The shortest reliable commwlication-by rail, lorry and barge-from
1
2 U. of S.A., Pa~l. Deb., House of AssemblVol. 76 (1951), Col. 8356.
G.A ., O.R., Te11thSess., SNo. 12 (A/2913), p.10. COUNTER-MEMORIAL OF SOUTH AFRICA rr7
the rest of South West Africa to the Eastern Caprivi is through the
Republic of South Africa, Bechuanaland and Rhodesia-a journey which
is some 1,500 miles longer than the distance from Respondent's adminis
trative centre (Pretoria) to the Eastern Caprivi, and which takes two or
more days longer to complete.
JI. Communication by air between Windhoek and the Caprivi, as
a medium for regular administrative contact, is also impracticable. The
only air service which at one time could possibly have been utilized,
operated weekly between Windhoek and Salisbury in Southern Rhodesia.
No intermediate landings were provided for in this service, and the only
regular transport service connecting Salisbury with Livingstone, the
nearest centre of communication to the Caprivi, is by rail via Bulawayo,
a distance of 586 miles. The only transport service between Livingstone
and the Caprivi is provided by the Witwatersrand Native Labour
Association, but it is not regular. Up to Kazangula the conveyance is by
lorry and from there by barge. The said air service is no longer in oper
ation.
32. Given the fact that the Eastern Caprivi is a Native Reserve, and
that the Respondent is directly responsible for Native Affairs throughout
the Territory, it would be illogical and make for unsatisfactory adminis
tration if Respondent were obliged to issue instructions to the South
\Vcst Africa Administration, which would then experience greater
difficulty in administering the area than if the administration were
conducted directly from South Africa.
33. In the premises Respondent submits that the views expressed by
the Committee on South West Africa. apparently without proper ap
prcciation of the facts concerning the Eastern Caprivi and its inaccessi
bility to the rest of South West Africa, cannot, and in fact do not, serve
as justification for Applicants' charge that the form of administration
of the area is inconsistent with the status of the Terri tory.
I. The Alleged Frustration of Opportunities for Progress Towards
Self-Determination
34. ln this regard Applicants make the allegation in thefr Legal Con
clusions and Summary 1, that Respondent's actions, including those
rclating to the administration of the Eastern Caprivi, frustrate the
objective of the Mandate to "promote conditions under which the Terri
tory's inhabitants may progress towards self-determination". Applicants
have in no way developed this submission or spelled out their allegations.
It is difficult to understand Applicants' allegation because, even whcre
administration is entrusted to two or more administrators, each such
administrator is an agent of Respondent, and acts in such capacityunder
Respondent's direction and contro\. In theory, therefore, it is difficult
to conceive why Respondent shoukl be less rnindful of its responsibilities
when acting through two agencies than when acting through one. Indeed,
practical considerations, and the interests of the people concerned, may
dictate separation of administration.
35. It has already been stated that administration of the Eastern
Caprivi from Windhoek must of necessity be less effective than adminis-
1 I,p. 195.us SOUTH WEST AFRICA
tration from Pretoria, and that the transfer of administration complained
of had as its sole object the improvement of the administration and,
consequently, the promotion of the well-being of the inhabîtants of the
area. In fact, as b.asalready been stated , the transfer ofadministration
of the Eastern Caprivi, was requested by the South West Africa Admi
nistration because it found that it could not administer the area effec
tively.
36. It must furthermore be borne in mind that the Eastern Caprivi
is mainly inhabitcd by two tribes which have never had connections with
other Native groups in South West Africa, and that the territory in
habited by them, being geographically almost completely isolated from
the rest of South West Afrira, has problems peculiarly its own.
The inhabitants of the area have not yet advanced to a stage of
political maturity, but in the mcantime they are, in the same manner
as other Native groups in the Territory, being gradually educated to
play an ever-increasing part in the control and management of their
own affairs.
37. Since 1955, as has been shown above 2, there has been less ad
ministrative separation than there was over the period 1939 to 1955.
Such admjnjstrative differences as do exist at present can in no way
interfcre with the political and general advancement of the Caprivi
people towards possible self-determination, and do not frustrate oppor
tunities for progress in that direction.
• Vide para.r5, supra.
2 Ibid., paras20-2r. CHAPTER VII
THE TRANSFER OF ADMINISTRATIONOF NATIVE AFFAIRS TO
THEMINISTER OF BANTUADMINISTRATION ANDDEVELOPMENT,
AND THE VESTINGOF SOUTHWESTAFRICANNATIVERESERVE
LAND IN THE SOUTHAFRICANNATIVE TRUST
A. Introductory
r. Applicants allege that the above two actions are to be regarded
as-
"... elements of the plan to incorporate the Terri tory into the Union,
in thfa case through direct Union contro] of territorial land and
development and direct control of the Territory's 'native' in
habitants."
It is alleged, also, that-
"Transfer of 'Native' affairs to an agency external to the Territory,
and vesting 'Native' lands in a corporate body external to the Terri
tory cannot be reconciled with the international status of the Terri
tory ."
And the submission is made that the said actions-
"... are elements of a plan for political integration of the Terri tory,
and that they tend substantially to impede progress toward the ob
jectives of the Mandate 2",
Respondent denies that these actions are elements of any plan as is
alleged by Applicants, and denies the existence of any such plan. Respon
dent further denies that the said actions are inconsistent with the inter
national status of the Territory, and denies that they impede progress
towards the objectives of the Mandate.
For convcnience the two mattcrs referred to by Applicants are dealt
with separatcly hereinaftcr.
B. Transferof Administrationof NativeAffairstotheMinisterofBantu
Administrationand Development
2. Respondent submits that, under the full powers of administration
granted to it by the Mandate, it can, in law, decide on the manner of
administration of all aspects of governmcnt in the Territory, including
Native affairs. It can, if it considers it to the advantage of the Native
inhabitants of the Territory, carry on such administration directly,
or through such agency as it deems expedient from time to time and as
drcumstances may require.
3. It has already been indicated 3 that, save for special provisions
with regard to the area known as the Eastern Caprivi Zipfel, Respondent,
1 1,p.194.
2 Ibid.,p.195.
3 Vide Chaptcr VI, para. 3supra.120 SOUTH WEST AFRICA
from the very inception of the Mandate, assumed direct control of
Native affairs in South West Africa. This position was maintained in
the South West Airica Constitution Act, 1925 {Act No. 42 of 1925), which
excluded Native affairs from the competence of the Legislative Assembly
of South West Africa, the Administrator continuing to act in respect
thereof under the direction and control of the Governor-General-in
Council.
The effect of tb.e South West Africa Native Affairs Administration
Act, 1954 (Act No. 56 of 1954), as already pointed out 1,was merely that,
whereas prior to the passing of the Act the Governor-General-in-Council
controlled and directed the administration of Native affairs in the
Territory through its organ or agent, the Administrator, it has, since the
Act has corne into force, controlled and directed such administration
through another organ or agent, the Minister of Native Affairs (now
designated the :Ministerof Ban tu Administration and Development).
+ Respondent submits that the transfer of the administration of
Native Affairs from one organ, or agent, of the State to another canin no
way affect the international status of the Territory, and, also, that it
can in no way amount to integration not permissible in terms of the
Mandate. It is submitted, furthermore, that the choice of the organ,
or agent. through which the administration of Native affairs is to be
conducted is a matter which has, from the very inception of the Mandate,
Iain entirely in the discretion of Respondent.
5. The said transfer was cffected because it was felt that the Territory
would benefit if the administration of Native affairs therein were put in the
hands of the Department of Native Affairs (now called the Department
of Bantu Administration and Development), with ail its experience,
its expert personnel and its technical and other facilîties. The sole task
of this Department has at all times been the promotion of the interests,
and the devclopment and uplifting, of the Native population of South
Africa, and since the aforementioned transfer was effectcd, also of the
Native population of South West Africa.
6. The aim of Act No. 56 of 1954 was described as follows by the
Minister of Native Affairs during a debate in the South African Parlia
ment:
"The aim of this Bill is very simple. The Union is responsible for
Native affairs in South West Africa. At the moment the Union is
carrying out this task through the administrator acting as a re
presentative of the Union Government. I do not even întend bringing
about any change in the machinery. In the future the Administrator
will still be used to carrv out the tasks which should be carried out
by someone on the spot" ."
Earlier, in the course of his address, the Minister had said:
"Actually I think this House should welcome this change for now
it means that the Central Parliament is being given the opportunity
to discuss properly such matters which under the mandate have
become the task and the duty of the Union. This Parliament will
be able to call someone to account in connection with matters which
12Vide Chapter VI, para. 3, supra.
U. of S.A., Patl. Deb., House of Assembly, Vol. 86 (r954), Col. 6458. COUNTER-MEMORIAL OF SOUTH AFRICA I2I
have to be done by the Union. In any case, for the reasons it was
then decided to transfer to the Minister of Native Affairs full control
over Native affairs in the territory of South West Africa 1."
7. Respondent has already referred to the explanation given by its
representative to the Fourth Cornmittec of the United Nations in 1954
regarding the object and purpose of the Act 2• Respondent wishes to cite
here only the following extract from the statement then made:
"... the transfer of control over Native affairs from the Adminis
trator of South West Africa to the Minister of Native Affairs of the
Union of South Africa ... would not result in the abolition or dimi
nution of any service now rendered to South West Africa. On the
contrary, with its greater resources in money, manpower and ex
perience, the Government of South Africa would be able to increase
and improve those services in every way. Furthermore, theSouth West
Ajrica Administration and the Ministry of Native AUairs were both
agencies of the South A/rican Government and il was there/ore hard to
understand how the Sou/li African Government would be less mindful
of its responsibilities under Article 22 of the Covenant white acting
through one than white acting through the other . .. He there/ore wished
to stress that there had been no incorporation of South West Africa by
the Union and no annexa/ion to the Union 3." (Italics added.)
8. With regard to Applicants' allegation that the transfer of adminis
tration tends "substantially to impede progress toward the objectives
4
of the Mandate" Respondcnt denics that it has any such effect, or
that it can in any way be construed as a violation of Respondent's
obligations under Article 22 of the Covenant and Article 2 of the Mandate.
On the contrary, the transfer was intended, and has had the effect of
operating, for the benefit of the indigenous population, especially by
providing for an accelerated rate of development of the Native reserves
in pursuance of valuablc experience gained by the Department in a
similar sphere in South Africa S.and by cncouraging and assisting the
various groups towards an cvcr-increasing participation in the building
up of their reserves and in the processes of self-government therein 6•
Thus the change has promoted, not impeded, progress towards the ob
jectives of the Mandate.
9. It may be pointed out, finally, that the Minister of Native Affairs
possesses authority to delegate any of his powers and duties to the
Administrator of South West Africa in his capacity as a rnember ,of the
Native Affairs Commission 7• The Minister has in fact exercised that
authority in delegating certain of his functions and duties in respect
of Native affairs in South West Africa to the Administrator in his afore
said capacity.
1 U. ofS.,4 .• Pari. Deb., House of AsseinblyVol. 86 (1954), Col. 6456.
2 Vide Chapter II, para. 22,supra.
3
G.A ., O.R .. Ninth Session, Fourlh Comin., 407th Meeting, 15 Oct. 1954, pp.
69-70 .
• 1, p.195.
s Vide, e.g., paras21-23, infra.
6 Ibid., para. 3I.
7 Sec. 3 (3) of Act No. 55 of 19:;9 superseding sec. 2 (2) of Act No. 23 of r920.I22 SOUTH WEST AFRICA
C. The Vesting of South West African Native Reserve Land.in the
South African Native Trust '
IO. ln support of their allegations in the above connection, Applicants
cite, and endorse, what they term "relevant principles" set forth in the
1955 report of the Committee on South West Africa with reference to
a resolution of the Permanent Mandates Commission of 7 July 1924 •
Before dealing with the views expressed by the Committee on South
West Africa, it will be convenient first to consider the following matters.
namely:
I. the resolution of the Permanent Mandates Commission of 7 Julr
1924;
II. the objects and purpose of the South African Native Trust; and
III. the effect of the vesting of South West African Native Reserve
Land in the said Trust.
These matters will be dealt in the above order in the next suc
ceeding paragraphs.
1. THE RESOLUTION OF THE PERMANANT MANDATES COMMISSION OF
7 jULY 1924
1r. Articles 120 and 257 of the Treaty of Versailles provided as follows:
Article I20:
"Ail movable and immovable property in such territories be
longing to the German Empire or to any German State shall pass to
the Govemment exercising authority over such territories, on the
terrns laid down in Article 257 of Part IX (Financial Clauses) of the
present Treaty ... "
A rticte257:
"In the case of the former German territories, including colonies,
protectorates or dependencies administered by a Mandatory under
Article 22 of Part I (League of Nations) of the present Treaty .•.
AUproperty and possessions belonging to the German Empire or
to the German States situatcd in such territories shall be transferred
with the territories to the Mandatory Power in its capacity as such
and no payment shall bemade nor any credit given to those Govern
ments in consideration of this transfer ... "
12. The nature of the legal rights vesting in the Mandatories over
immÔvable property in the mandated territories was considered during
the first few years of the League's existence. In a report submitted
during the Third Session of the Permanent Mandates Commission in 1923
M. van Rees, in interpreting Articles 120 and 257 of the Treaty of Ver
sailles, came to the conclusion that the transfer was to ". . . the manda
tory Power as such" 2,and that-
"lf these provisions are examined as a whole, it will be seen that
under the mandate system the mandatory State is merely the go
vernor of a terriory which does not belong toit ... This consideration
excludes tho! possibility of the territory being regarded as legally the
1P.M.C. ~Min.• IV, p. r57; l, p. 194,
2 Ibid., III. p., ::21 (Annex 2). COUNTER-M'EMORIAL OF SOUTH AFRICA 123
property of the mandatory Power and, consequcntly, as part of the
l\fandatory's territory.
That which has been handed over to the mandatory State in
virtue of Articles 120 and 257, that which has 'passed' or been
'transferred' to the governor, has been handed over to him as
governor and not as State; consequently, there has been no final
alienation, and no real rights have been acquired by that State; the
territory, property, possessions and rights referred to in the two
articles do not belong to the manda tory State but have merely been
placed at its disposai; it:has been granted their use in order that it
may carry 1ut its duties as governor with which it has been en
trusted .''
Referring to the legislative competence of the mandatory Powers, he
concluded that-
"There can therefore be no doubt that the mandatory Power, if it
conforrns to Article 22 of the Covenant and grants the guarantees
referred toin these mandates, possessesfullauthority, both as regards
B and C mandated territories, to govern them as if it possessed
sovereignrightsovertheterritory .''(Italics added.)
In bis generaJ conclusions M. van Rees said;
"This duty of government, though it does not involve sovereignty
or, any actual rights, over any portion of a territory ... , does entail
the right of disposai of the territory, property and possessions in
question, but in a purely administrative sense 2.'',
and
"Whatever may be the extent of the legislative competence of the
Mandatory, there would appear to be no doubt that he could not
deduce from that compr.tence the right to take advantage of it so
as to make the whole or part of the territory his own property ...
no enactment by those (mandatory) Powers can make any portion
of the territories under their administration form part of the State
lands of a mother-country. If, notwithstanding this, they issue
decrees the text of which bea.rsthis construction, they give rise to a
discrepancy which may be the cause of errors in interpretation.
Rather than foster these errors, it would surely be preferable to
avoid any suggestion of acting in contravention of the intentions of
the mandatory system ."
13. The aforementioned report was submitted to the legal section
of the Secretariat of the League of Nations for its views on the following
matters in question, viz.:
"(r) Is it in conformity with the principles underlying the mandate
system for the Powers administertng territories under 'B' and
'C' mandates to designate, by the terms 'Crown Land' or
'Domaine de l'Etat':
(a) property which formerly helonged to the German State;
and
2 Ibid., p.222., III, p.221 (Annex 2).
3 Ibid., pp.222-223. SOUTH WEST AFRICA
124
(b) land known as 'vacant land' and land generally regarded
as constituting native reserves?
(2) Would it be legitimate for the Powers above mentioned to use
sums of money derived from the sale or exploitation of such
lands for any purposes other than the interests of the Mandated
territories? 1"
14. The views of the legal section of the Secretariat were expressed
in a memorandum dated 20 May 1924. Thls memorandum referred to
Articles 120 and 257 of the Treaty of Versailles, Article 22 of the Covenant
and the relevant Articles of the Mandates, and stated the following
conclusion:
"... it is only as Mandatories that the Powers in question have ob
tained the cession of the territory and the transfer of the property in
question. It is not as owners that these Powers have acquired the
property, but as trustees ... who only possess powers of management .
. . . the right over lands and other public property has not become a
right of absolute ownershlp such as that which the State possesses
over State domains in its own terri tory. The fact that the State is a
':Mandatory' implies restrictions which qualify the absolute charac
ter of such rights, namcly:
(1) a restriction as to dmation; the right exists only so long as the
State continues to be the Mandatory Power;
(2) restrictions as to enjoyment in substance. If the right of owner
ship is taken to mean the right to dispose freely of the property
in question and to enjoy its yield without restriction, property
situated in mandated territories is not so completely at the
disposai of the Mandatory, and the latter does not possess the
free, unfettered and unconditional use of the vield of such
property 2." •
And:
"It therefore follows that the right of the Mandatory Power to
dispose of or obtain any profit from the State lands in the mandated
terri tory is subject to the following obligation: the Mandatory Power
must exerci~e this right with a view to furthering the prosperity and
development of the mandated territory as a whole 3."
The result in practice of the aforegoing principles was described in the
memorandum as follows:
"... first, the State lands situated in the mandated territories can
not form a integral part of the heritage of the Mandatory Power
regarded as a whole.
Secondly, profits and revenues obtained from such property
cannot be included, unless they are specially earmarked, in the
3
general revenue of the l\fandatory Power ."
r5. The memorandum continued by stating that, especially in the
case of C Mandates, which were "administered under the laws of the
manda tory as integral portions of its territory'', certain difficulties of a
practical nature, from an administrative point of view, might arise in
1 P.M.C., Min., IV, p. r63 (Annex r}.
zlbià.,p. r64.
3 lbià.p. r65. COUNTER-MEMORIAL OF SOUTH AFRICA 125
connection with the abovementioned principles. \Vith regard to such
diffi.cultieshe memorandmn sta ted:
"The unity of administration which the Mandatory Power may
establish does not imply, ipso facto, and in principle, the unification
of all domain esta tes nor the amalgamation of public revenues- ...
But the administrative unity established as between the mandated
terri tories and those over which Mandatory Power has full sover
eignty may call for special examination from the point of view
of the manner in which the distinct character of the State lands held
under the Mandate is to be respected.
This is,. howcver, a question of practical administration ... It
should be sufficient to note that an administrative solution of the
1
question would not seem to be impossible ."
Regarding the tenninology employed by various Mandatory Powers
to describe land in the territories held under mandate, the memorandum
stressed that no final opinion could be formed purely on terminology,
but that the system of legislation and administration, "as a whole",
would have to be examined in order to furnish an answer to the question
whether such system accorded with the principles defined in the memo
randum 2•
16. The aforesaid memorandum fonned the basis of the resolution
adopted by the Permanent Mandates Commission on 7 July 1924 and
endorsed by the Council of the Lcague, which is quoted by Applicants 3.
For convenience the resolution is cited here:
"The mandatory Powers do not possess, in virtue of Articles 120
and 257 (paragraph 2) of the Treaty of Versailles, any right over any
part of the territory under mandate other than that resulting from
their having been entrusted with the administration of the terri tory.
If any legislative provision relating to land tenure should lead
to conclusions contrary to these principles, it would be desirable
that the text should be modified in order not to allow of any
doubt 4."
17. Responclent has at all times accepted the legal position as set out
in the said resolution and in the memorandum of the legal section of the
Secretariat of the League, viz., that Respondent did not receive "absolute
ownership" of the land in question, but that it "... obtained the cession
of the territory and the transfer of the property in question 5" only in
its capacity as Mandatory, or trustee, with powers of management and
administration. Respondent has, furthermore, at all times actcd on the
principlcs set out in the legal section's mcmorandum, viz., that whilst it
has the power to dispose of "state lands", such right is subject to the
obligation of using the proceeds for "furthering the prosperity and
development of the mandated territory as a whole" 6•
1 P.M.C., Jilin .• IV, p. 165 (Annex 1).
2 Ibid.,p. 167.
3 I, p.194.
• P.M.C., Min., IV, p. 157.
5 Ibid., p.164. Vide alsopara. I4, rnpra.
6 Vide para. 14, supra. SOUTH WEST AFRICA
Il. THE.ÜBJECTS AND PURPOSE OF THE SOUTH t\FRICAN NATIVE TRUST
18. ln the 1930s it became clear to the S:mth African Government
that the acquisition, holding and devclopment of lands already set aside,
and to be set asidc, for the sole use and occupation of the various Nativ~
groups in South Africa ca!led for the establishment of a specialized
body to perform these fonctions. With this purpose in view the Native
Trust and Land Act, 1936 (Act No. 18 of 193G). creël.ted a corp)rate
body, a specializcd governmcnt agency, namely the South African
Native Trust, which was to be "administered for the settlement. support,
benefit, and mate:rial and moral wdfare of the n:1.tivesof the Union" 1•
In terms of the Act the affairs of the Trust were to be-
"... administered by the Govcmor-General as Trustee with power
... to delega.te any of his powers and fonctions as Trustec to the
Minister [of Native Affairs] who shall act in consultation with the
Native Affairs Commission 2."
Pursuant to this provision the Governor-Gencral delegated his powers
and functions as trustee to the Minister of Native Affairs (now dcsignated
the Minister of Ban tu Administration and Development) who isa member
of Respondent's Exccutive Council. The staff of the trust are government
officiais cmployed. under the provisions of the laws governing the public
3
service •
The trust is, therefore, an administrative organ which fonctions under
the so1e contrai of Respondent, in furtherance of the trust objectives
prescribed in the Act.
19. Section 6 ot the said Act made provision for the vesting in the
Trust of, inter alù.i,ail land set asidc for the occupation of Natives.
Section 8 provided for the establishment of the South African Native
Trust Fund, to be administered for the purposes of the trust, and sec
tion 9. as amended, provided that this fund may be utilized for the
following purposes:
" (a) ta defray such costs in connection with the administration of the
Trust and such othcr expenditure as the Ministcr may deter
mine;
(b) to acquire land for the objccts of the Trust;
(c) to develop land, the property of the Trust;
(d) to advance the interests of natives in scheduled native areas,
released areas [being certain types of land for the occupation of
Natives], or on 1and held by or from the Trust in the agricultural
and pastoral and other industries;
(e) to make advances to natives or to native communities occupying
land within the scheduled native areas or released areas or
holding land from the Trust, for the better development of the
holdings of such natives or of the arcas occupied by such
communities;
(!) to advance the interests of natives in commerce and industry in
scheduled native areas or released areas or on land held by the
1 Act No. 18 of 1936, sec. 4 (2}, The Union Statutes r910-r947, Vol. 10,p. 191.
2 Ibid., sec. 4 (3), p. 191.
3 Ibid., sec. 6 bis, p. 193. This sub-sectiwas insertcd by sec. 26 (1) of the
Finance Act, No. 17 of 1938. COUNTER·MEMORIAL OF SOUTH AFRICA 127
Trust in the Union or the territory of South-West Africa and,
subject to such conditions as the Trustee may determine, to
provide moneys to be used for that purpose by any body
established by Act of Parliament; and
(g) generally to assist and develop the material, moral and social
well-being of natives residing on land within the said areas or on
land heJd by or from the Trust; ."
20. The trust was to be fi.nanced by special parliamentary grants
amounting to fro million (R20 million) over a period of ten years for
the purpose of acquiring and developing, on behalf of the Native popu
lation of South Africa, the additional 7i million morgen (± 15,500,000
acres) of land, which in tcrms of the Act were to be addcd to the existing
Native Reserves in South Africa.
21. In order to implement the provisions of the Act, administrative
and technical rnachinery staffed by specially selected offi.cials was set
up within the Department of Native Affairs consisting of a Lands'
Branch, an Agricultural Branch and a Native Settlement Section.
22. In furtherance of its objectives the trust has acquired extensive
areas of land for the sole use and occupation of Natives in South Africa.
It has also, acting through the Department of Native Affairs (now
styled the Department of Bantu Administration and Development),
brought about large-scale developments and imp1ovements within the
Bantu areas, more particularly in the following respects:
(a) development and conservation of rural areas by cornbating soil
erosion, and other reclamation operations;
(b) afforestation of rural areas;
(c} fencing of lands;
(d) provision of irrigation and water conservation schernes, boreholes,
windmills, purnps, reservoirs and tanks;
(e) construction and improvemcnt of roads and building of bridges;
(!) improvernent of agricultural methods, provision for proper veterin
ary services in combating stock diseases, and promotion of various
schemes for agro-economic dcvelopment;
(g) planning and establishing Bantu villages and townships and pro
moting industries in border areas.
23. In all the aforemcntioned schemes, operations and services for
the betterment of the Bantu in South Africa and for promoting their
progress at an ever increasing tempo, the South African Native Trust
has played a very important role.
There has, furthermore, been created an administrative organization
of vast experience, commanding the services of expert personnel and
possessing proper rnachinery and equipment for the diverse tasks and
fields of operation in which the Trust is interested on behalf of the Bantu
in South Africa. In the course of time the organization has concentrated
more and more, with an ever-increasing measure of success, upon securing
the active co-operation of the traditionally organized Bantu communities
in the planning and application of these schemes and measures for the
1
Act No. 18 of 1936, sec. 9p. 195. Sub•secbuu 9 (!) was insertedby sec.2 of
the Native Trust and Land Amendment Act, No. 41 of 1958; vide The Laws of
South Wesl Africa I958, Vol. XXXVII, p.95.128 SOUTH WEST AFRICA
development of the Bantu a.reas and the uplift and advancement of the
Bantu peoples.
Ill. THE EFFECT OF VESTING SOUTH WEST AFRICAN NATIVE RESERVE
LAND IN THE SOUTH AFRICAN NATIVE TRUST
24. In 1954 it was felt that a stage had been reached whcrc the further
development of Native reserves in South West Africa required the
aid and expert services of a specialized body such as the South African
Native Trust. Provision was accordingly made in the South West
Africa Native Affairs Administration Act, 1954 (Act No. 56 of 1954) 1,
for the vesting in the said trust of all land set aside for the sole use and
occupation of Natives in the Terri tory. The Act provides that with
regard to land so vested the trustee shall, "subject to the provisions of
this Act, have the same powers and fonctions, and be subjcct to the same
duties, as if the territory were included in the Union" 2 •Further pro
visions render clear that the trust is in respect of such land to operate
3
for the benefit of the Native inhabitants of South West Africa only •
Provision is conscquently made for a separation of funds accruing to the
trust in respect of South West Africa, and the keeping of separate
accounts in respect thereof ~.
25. On analysis of the system under which Reserve Lands are held
by the Trust it appears that:
(a) The South African Native Trust is not vested with a right of full
and unfettered ownership.
The following restrictions prevent the trust from dealing with
Reserve lands as ifit were the absolute owner thereof:
(i) The trust must, as pointed out before, be "administered for the
settlement, support, benefit, and material and moral welfare of
the natives" 5• This is in conformity with the principles of the
mandate system.
(ii) No land in a Native Reserve vcsted in the trust may be alienated
except with the approval of both Houses of the South African
Parliament and unless land "of at least an equivalent pastoral or
agricultural value ... [is] reserved or set apart, in terms of any
law in force in the territory, for the sole use and occupation of
natives" 6• This provision incorporates even stronger safeguards
of the rightsof Natives in the Reserves than existed prior to 1954.
Prior to 1954 an alienation of Native Reserve land could have
been legally authorized by the two Houses without any quid pro
quo, although this was never doue in practice 7•
1 It is the same Act which made provision for the transfer of administration of
Native Affairs in South \Vest Africa to the Minister of Bantu Administration and
Development. Vid,: para. 3,supra.
2 Act No. 56 of r954, sec. 4 {2)(a), inStatutes of the Union of South Africa I954,
p. 561.
3 Ibid., sec. (2:,pp. 561-563.
• Ibid., sec.4 (4),p. 563.
5 Vide para. 18, supra.
6 Act No. 56 of 1954, sec. 5 (1), in Statu/es of the Union of South Africa I<)54,
p. 563.
1 Act No. 49 of 1919, sec.4 (3). iThe Laws of South West Africa I9I5-I9zz, p. 12. COUNTER-MEMORIAL OF SOUTH AFRICA 129
(b) The Native Reserves of the Territory are held in trust on bchalf of
Respondent as trustee for the Native inhabitants of the Territory,
and arc in ·no way identified with Respondent's own Native areas
kept in trust for the Native population of South Africa. Ail profits
and revenues obtained, and ail expcnditurc incurred, in respect of
the South West Africa Reserves, are accounted for in separate
accounts by the trust. And all benefits derived from the said Re
serves are employed only for the benefit of the Natives of South 1
West Africain accordance with the strict purpose of the trust •
(c) The position is thus that the South African Native Trust, with
the Minister of Bantu Administration and Development acting as
trustee under delegated authority from the Governor-General, holds
and administers the said Reserves merely as a trustee for the benefit
of the Natives occupying the said Reserves.
D. The Views of the Committee on South West Africa,
as Endorsed by Applicants
26. In its 1955 report the Committee on South West Africa, in dealing
with the provisions of Act Ko. 56 of 1954, referred to the resolution of
the Permanent Mandates Commission of 7 July 1924 2, and expressed
the opinion that:
"... the Mandate does not and can in no way be interprcted to
confer upon the Mandatory Power the authority to divcst the
3
Mandatcd Territory of any portion of its asscts .''
This opinion was reiteratcd by the Committee in its 1956 report in which
it statcd that the asscts of the Territory: "... cannot be vested in any
source other than the Mandated Territory itself" 4.Applicants say
that they fully endorse the opinion of the Committee.
27. The suggestion underlying the opinion of the Committee appears
to be that in Jaw the lands in question vest in the mandatcd territory,
and cannot legally be divested from the Tcrritory.
Rcspondcnt submits that this view is incorrect. The lands in question,
as part of the Territory of South West Africa, were originally transferred
to Respondent as Mandatory or trustee 5, and they have at ail times
remained so vested.
Being vested in Respondent, and not in the Territory-which is in
any event not a legal persona-there can be no question of such lands
being divested from the Territory. The effect of the Act has merely
becn to appoint a specializecl agency, under Respondent's control, to
manage the lands in trust for the benefit of the natives concernecl.
28. Applicants, in endorsing the opinion of the Committee on South
West Africa, complain that the legislative measure in question brought
about "direct Union control of territorial land and development" and
that the vesting of " 'Native' lands in a corporate body external to the
1 Act No. 56 of 1954, secs. 4 (3) and (4), in Statu/es of the U11ionof South Africa
I954, p. 563; vide para. 24, supra.
2 For the text of the rcsolutiovide para. r6, supra.
J G.A ., O.R., Tenth Session, Sup. No12 (A/2913), p. 16.
• Ibid., Eleventh Session, Sup. No12 (A/3151), pp.rr-12.
5 Vide paras. Ir-15, supra.IJO SOUTH WEST AFRICA
Territory cannot be reconciled with the international status of the
Territory" 1•
In this regard Respondent says that it has, in its cà.pacity as Man
datory, at all times had direct control of "territorial land and develop
ment", and that Applicants' objection to direct control by Rcspondent
is an untenable one. It was inherent in the Mandate that Respondent,
as Mandatory, should control and develop the Territory, and there can,
it is submitted, be no objection to Responclcnt's performing its duties in
this respect directly. Applicants, in referring to the South African Native
Trust as a "corporate body externat to the Territory", seem to suggest
that control and development must proceed from a source within the
Territory itself. Therc can, it is submitted, be no basis for such a sugges
tion, sincc any such source within the Terri tory must of necessity derive
its powers from R.espondent as Mandatory, and would thercfore be an
agent of Responclent, under Respondent's control. lt cannot validly be
suggcsted that an agent of Respondent within the Territory should be
able to do that which Respondent, as the principal which appoints such
agent, cannot itself do.
29. The vesting of South West African Native Reserve lands in the
South African Native Trust was a purely administrative enactment
which in no wa.y affected the distinct character of the said reserves
as portion of the Territory of South West Africa, which Territory is
administered by Respondent as a territory with a separate international
status. The arrangement complained of car_in no way be taken to amount
to an incorporation of the said reserves into the patrimony of Respon
dent.
E. Applicants' Allegation that the Measure in Question Is an Element
"of a Plan for Political lntegration of the Territory" and that it Tends
"Substantially to ImpedeProgressTowardthe Objectivesof the Mandate" 2
30. Responclent does not appreciatc on what grounds Applicants
suggest that the vesting of South West African Native Reserve land in
the South African Native Trust is part of a plan for "political inte
gration of the Territory", or that it tends to "impede progress towards
the objectives of the Mandate".
Respondent snbmits that the very object and purposes of the trust 3
demonstrate th,ü it is solely concerned with the advancement of the
interests of Natives, and thus refute the suggestion that the measure in
question is part of a plan for "political incorporation".
And the activities of the trust• likewise, in Respondent's submission,
refute the idea that it operates so as to impede "progress towards the
objectives of the Mandate".
JI. Recognition of the important role which the trust has played
in the preservation and irnprovement of the Bantu areas in South Africa,
and in the promotion generally of the interests of the Bantu peoples,
entirely justified the extension of the Trust's activities to South West
Africain the interests of the Native population of the Territory.
1 1,p. 194.
2 Ibid.,p.195.
3 Vide paras. 18-20,supYa.
+ Ibid., paras2 1-23. COUNTER-MEMORIAL OF SOUTH AFRICA l3I
That such extension has proved of immense value to the Native
Reserves in the Territory is evidenced by the measure of progress which
has been made in developing such reserves since 1955, particulars of
which have alreadv been furnished elsewhere in this Counter-Memorial
in reply to Applicants' charges set forth in Chapter V of the Memorials.
32. In the premises aforestated Respondent submits that Applicants'
allegations and complaints relative to the vesting of South West African
Native Reserve lands in the South African Native Trust are entirely
unfounded. CHAPTER VIII
CONCLUSION
r. In the light. of what has been stated in the aforegoing Chapters,
Respondent submits that there is no foundation for the conclusions
drawn by Applicants in section C of Chapter VIII of their Memorials 1•
Respondent specifically denies the charge that its purpose is to dis
regard the "mandate's prohibition against unilateral incorporation of
the Territory, or any other modification of the Territory's status".
Respondent further denies the charge that it has by any of the acts
referred to by Applicants, or otherwisc, frustrated the objective "to
promote conditions under which the Territory's inhabitants may pro
gress toward self--determination".
2. In the premises Respondent denies Applicants' conclusion that
Respondent "has violated, and is violating, its international obligations
stated in Article 22 of the Covenant of the Leaguc of Nations and in
Article 2 of the Mandate".
1 1,p. 195. CHAPTER IX
SUBMISSION
For the reasons hereinbefore advanced, supplemented as may be
necessary in later stages of these proceedings, Respondent, as far as
this portion ofhe Counter-Memorial is concerned, prays and requests
that Applicants' Submission 5 be dismissed. SECTIOND
ALLEGED VIOLATIONSOF ARTICLE7 OFTHE MANDATE
A. INTRODUCTORY
r. In their Submission 9, Applicants ask the Court to adjudge and
declare that:
"the Union, by virtue of the acts described in Chapters V, VI,
VII and VIII of this Memorial coupled with its intentas recounted
herein, has attempted to modify substantially the terms of the Man
date, without the consent of the United Nations; that such attempt
is in violation of its duties as stated in Article7 of the Mandate and
Article 22 of the Covenant; and that the consent of the United
Nations is a necessary prerequisite and condition precedent to
attempts on the part of the Union directly or indirectly to modify the
terms of the Mandate 1.''
The argument in support of this Submission 2 may be summarizcd
as follows:
(a) In terms of Article 7 of the Mandate-
"The com,ent of the Council of the League of Nations is required
for any modification of the terms of the present Mandate."
(b) After the foundation of the United Nations Organization, and the
dissolution of the League, the power to consent to any modification
of the Mandate became vested in the United Nations.
(c) Respondent has proceeded from the assumption that the Mandate
is no longer in existence, and that it has the right unilaterally to
incorporate the Territory.
(d) Respondent has committed the violations of Articles 2,4, 6 and 7
of the Mandate which are set out in Chapters V to VIII of the
Memorials.
(e) The acts referred to in sub-paragrnph (d) above-
"read in the light of the Union's intent, [i.e., as set out in sub
paragraph (c)] constitute a unilateral attempt to modify the terms
of the Mandate without the consent of the United Nations".
B. STATEMENT OF THE LAW
2. For the purposes of the present argument Respondent assumes,
contrary toits Submission in Book II above 3,that the Mandate is still
jn existence despite the dissolution of the League of Nations.
3. In support of the proposition set out in paragraph 1 (b) above,
1
2 I,p. 198.
3 Ibid .p. 96.
Vide Book II, Chap. V, of this Counter-Memorial. COUNTER-MEMORIAL OF SOUTH AFRICA
135
Applicants rely entirely on the 1950 Advisory Opinion. The relevant
passage of the said Opinion reads as follows:
"Article 7 of the Mandate, in requiring the consent of the Council
of the League of Nations for any modification of its terms, brought
into operation for this purpose the same organ which was invested
with powers of supervision in respect of the administration of the
Mandates. In accordance with the reply given above to Question (a),
those powers of supervision now belong to the General Assembly of
the United Nations. On the other hand, Articles 79 and 85 of the
Charter require that a Trusteeship Agreement be concluded by the
mandatory Power and approved by the General Assembly before the
International Trusteeship System may be substitutcd for the
Mandates System. These articles also give the General Assembly
authority to approve alterations or amendments of Trusteeshlp
Agreements. By analogy, it can be inferred that the same procedure
is applicable to any modification of the international status of a
territory under Mandate which would not have for its purpose the
placing of the territory under the Trusteeship System 1."
As appears from this passage, an essential link in the Court's reasoning
was its previous finding that "powers of supervision in respect of the
administration of the Mandates" were vested in the General Assembly
of the United Nations. Respondent has submitted that this finding was
incorrect 2•If Respondent's submission in this regard is sound, it would
follow that the said Advisory Opinion would no longer be acceptable
authority for the proposition-"that it is the United Nations whose
consent is now required for any modification of the terms of the Man
3
date" •
Respondent does not, however, propose devoting any further consid
cration to the questions whether, on the assumption aforestated 4, the
Mandate can now be modified, and, if so, how, since these questions
are, for the reasons to be set out in the succeeding paragraphs, of academic
interest only.
C. STATEMENT OF FACTS
Respondent's Alleged Intent
4. Applicants appear to concede that, in order to establish a contra
vention of Article 7, they would be rcquired to prove an intent on
Respondent's part to modify the terms of the Mandate 5• Indecd, it
seems obvious that Respondent cannot be guilty of any "attempt to
modify the terms of the Mandate" 3 unlcss, as a fact, it possessed the
intent to effect such a modification.
1 International Status of South West Africa, Advisory Opinion, J.C.J. Reports r950,
p. 128,at pp. 14r-142.
z Vide Book II, Chap. IV, of this Counter-Memorial.
3 I,p. 196.
4 Vide para. 2,supra.
5 Vide the heading "The Union's !ntent", and the words "read in the light of the
Union's intent" (twice) at I, p. 196, and "coupled with its intent" in Submission 9.136 SOU'l'H WEST AFRICA
The only allegations from which Applicants seek to deduce such an
intent are the assertions that Respondent-
"... has proceeded from the assurnption that the Mandate is no
longer in existence, that the Union has no obligations under the
Mandate, and that it has the right and the power unilaterally to
1
incorpora te the Territory by de factoannexation or otherwise ''.
lt is clear that a mere assertion of a right to do something, does not
show an intention to do soi. Respondent submits, therefore, that Appli
cants' own allegations do not give rise to any inference that Respondent
is,or has been, motivated by an intent to modify the terms of the Man
date.
Indeed, it is submitted that the record shows a complete absence of
intent on Respondent's part to perform any actions in regard to the
Territory which would not have been permissible under the Mandate if
it had still been in force 3•
Respondent's Alleged Acts
5. Quite apart from what has been set out in paragraph 4 above, it is
submitted that Respondent's replies to Chapters V, VI, VII and VIII of
the Mcmorials show that Respondent has not violated Articles 2, 4, 6 or
7 of the Mandate, and, that for this reason also, Applicants' argument
in Chapter IX of the Mcmorials is untenable.
D. SUBMISSION
6. For the reasons hereinbefore advanced, supplemented as may be
necessary in la ter stages of these proceedings, Respondent, as far as tlùs
portion of the Counter-Memorial is concerned, prays and requests that
Applicants' Submission g be dismissed.
1
21, p. 196.
With regard to the right to incorporate,vide sec. C, Chap. III, para. 4supYa.
3 Vide sec. C, Chap. II, para. 26, and Chap. III, para. 15, supYa. BOOK IX
A GLIMPSE OF SOUTH WEST AFRICA
The purpose of this Book i:; to present by means of photographs some
measure of illustration ofwhat has been describcd or mentioned in the
text of the Counter-Memorial.
For practica1 reasons the presentation must necessarily be a limited
one, affordingno more than itglirnpse of the whole field.
As will be observed from the titles, sub-titles and captions, many of
which are extracts from the text, the photographs are grouped with
reference to various subjects as dealt with in distinct portions of the
Counter-Memorial, e.g., geographical features (Book lll, Chap. I),
population groups (Book III, Chap. II), education (Book VII, the whole)
and the Iike. Ail subjects are not thus represented; and of those that are
represented, some aspects only are illustrated.
Respondent hopes, however, that the Book may nevertheless succeed
in convcying to the honourable Court something of the spirit and atmos
phere of the land of diversity, its peoples and their lives.
INDEX
Geographical features
The Namib [Not reprodi,cedj
The central plateau [Not r1:produced}
The Kalahari [Not reproducedj
The inland rivers [Not reprod11cedJ
The perennial rivers [Not reproduced]
Water resources [Not reproduced}
The Reserves [Not reprod11,;edJ
The Caprivi Strip [Not rep,·oducedj
The peoples
Caprivi peoples [Not reproducedj
Okavango peoples [Not reprodu.;edj
Ovambo [Not 1'eproduced]
Bushmen [Not reproduced}
Dama [Not reproduced}
Nama [Not reproduced J
Herero (Himba) [Not repro1focedJ
Herero [Not reproduced]
Rehoboth Basters [Not reproducedJ
Europeans {Not reprodziced]Education
Schools [Not re.prodt,ced]
Northern territories [Not reproducedj
Police Zone [Not reproduced]
The Augustineum at Okahandja [Not reproduced]
Handicrafts [Not reproduced]
Adult education [Not reproducedj
Facilities for hlgher Eucation in South Africa open to Non-European
studcnts of the terrîtory[Not reproduced)
Training of nurses
Local governmem
Native residential areas[Not reproduced)
Facilities in townships [Not reproduced}
Businesscs in townships [Not reproducedJ
Economy
Windhoek [Not reproduced]
Diamond mining at Oranjemund {Not reproducedj
Copper mining at Tsumeb [Not reproduced]
The fishing industry [Not reproducedj
The meat-packing industry [Not reproduced]
Other occupations [Not reproduced J
The guano industry [Not reproduced]
The sait industry [Not reproduced}
Stock farming ,rNot reproduced]
Recruitment of labour [Not reproduced]
Tribal life [Not reproduce1 BOOK X
TABLE OF CASES
I.Permanent Court of International Justice
(r) Status of Eastern Carelia, Advisory Opinion, I923, P.C.!.]., Series B,
No. 5, pp. 27-29.
(2)German Settlers inPoland,Advisory Opinion, r923, P.C.!.]., Series B,
No. 6, pp. 21-23.
(3) M avrommatis Palestine Concessions, Judgment No. 2, r924, P.C.!.].,
Series A, No. 2, pp. ro-r2, 42-43, 61-63, 77, 81, 86, 88.
(4) Certain German Interei;ts in Polish Upper Silesia, Jurisdiction,
Judgment No. 6, r925, P.C.!.]., Series A, No. 6, p. 15.
(5) Certain German Interests in Polish Upper Silesia, Merits, Judgment
No. 7, r926, P.C.!.]., Series A, No. 7, p. 31,
(6) Rights of Minorities in Upper Silesia (Minority Schools), Judgment
No. I2, r928, P.C.!.]., Series A, No. I5,pp. 24-25, 80.
(7) Free Zones of Upper Savoy and the District of Gex, Judgment, I9]2,
P.C.!.]., Series A/B, No. 46, p. 145.
(8) Interpretation of the Statute of the Memel Territory, Preliminary
Objection, Judgment, r932, P.C.!.]., Series AJB, No. 47, p. 247.
(9) Interpretation of the Convention of r9r9 concerning Employment of
Women during the Night, Advisory Opinion, r932, P.C.!.]., Series
AJB, No. 50, p. 377.
(ro) Legat Status of Eastern Green/and, judgment, r933, P.C.!.]., Series
A/B, No. 53, p. 91.
(11) Lighthouses case between France and Greece,]udgment, r934, P.C.!.].,
Series A/B, No. 62, p. 22.
(12) Minority Schools in Albania, Advisory Opinion, I935, P.C.!.].,
Series A/B, No. 64, p. 19.
Il. International Court of Justice
(1) Reparation for Injuries Su/jered inthe Service o/ the United Nations,
Advisory Opinion, l.C.J. Reports r949, p. 174, at p. 179.
(2) Interpretation of Peace Treaties with Bulgaria, Hungary and Romania,
Ft'rst Phase, Advisory Opinion, l.C.J. Reports I950, p. 65, at pp. 72,
91.
(3) International Status of South West Afri'ca, Pleadings, Oral Arguments,
Documents, pp. 122-123, 148-161.
(4) International Status of South West Africa, Advisory Opinion, l.C.J.
Reports r950, p. 128, at pp. 132-134, 136-138, 140-142, 145-146,
151-153, 158-162, 164-173, 186, 191.
(5) Ambatidos, Preliminary Objection, Judgment, l.C.J. Reports I952,
p. 28, at pp. 39, 54.
(6) Voti'ng Procedure on Questions Relating to Reports and Petitions
concerning the Territory o/ South-West A/rica, Advisory Opinion,
I.C.]. Reports r955, p. 67, at pp. 75, 85-86, 95, 98-ro6.140 SOUTH WEST AFRICA
(7) Admissibility of Hearings of Petitioners by the Committee on South
West Africa, Advisory Opinion, I.C.j. Reports I956, p. 23.
(8) South West Africa, Preliminary Objections, Judgment, I.C.J. Reports
I962, p. 319, at pp. 330-344, 347-348, 354-356, 358-365, 367-374,
376-384, 390, 392, 395, 398-403, 405, 408-409, 4rr-420, 425-432,
439-442, 444-445, 447-448, 451-455, 456-457, 459-462, 466-467,
472-503, 505, 507-560, 567, 598-601, 603-605, 607-6ro, 613-615,
633, 635, 640-653, 655-657, 659.
(9) South West Africa, Oral Proceedings (2 to 22 Oct. 1962).
III. Australia
Ffrost v. Steve1w1n, 1937 58 C.L.R. 528, at pp. 550, 552-553, 581-582.
IV. Union of South Africa
(1) Union Gove-mment v. Fakir, 1923 A.D. 466, at pp. 469-470.
(2) Narainsamy v. Principal Immigration Ofjicer, 1923 A.D. 673.
(3) Mokhatle &Others v. Union Government (Minister of Native Afjairs),
1926 A.D. 71.
(4) Union Government (Minister of Mines and Industries) v. Union
Steel Corporation (South Africa) Ltd., 1928 A.D. 220; at p. 236.
(5) Rex v. Blom, 1939 A.D. 188, at pp. 202-203.
(6) Kellermann v. Minister of the Interior, 1945 T.P.D. 179.
(7) Hlongwane v. Roux and van Gass, N.O., 1948 (r) S.A.L.R. 62.
(8) Vanderbijl l'ark Health Committce & Others v. Wilson & Others,
1950 (1) S.A.L.R. 447.
(9) Mhlengwa v. Sccretary for Native A(fairs & Anothcr, 1952 (1)
S.A.L.R. 31::1:.
V. South West Africa
(1) Rex v. David Mathifs and Gert Christian, 1925 S.W.A. 98.
(2) Rex v. Hara:ibJan, 1937 S.W.A. 7.
VI. Colony of Natal
Siziba's Guardian v. Meseni, 1894 N.L.R. 237.
VII. United Kingdom
(1) The King v. Inspector of Leman Street Police Station, Ex parte
Venicofj,1920 3 K.B. 72.
(2) Attorney-General for Manitoba v. Attorney-General for Canada and
Others, 1925 A.C. 56r (P.C.), at p. 568.
(3) Jerusalem-Jafja District Governor and Another v. Suleiman Mttrra
and Others, r926 A.C. 321, at p. 328. LIST OF DOCUMENTATION
1. League of Nations
A. Minutes of the Cozmcil, sess. VIII, 1920, pp. 183, 185.
B. Records of the Assembly, sess. I,1920, p. 320.
C. Official Journal, 1920, (No. 6) pp. 334-335, 337-341, (No. 8) p. 87;
1921, (No. 1) pp. n-12, 84-94, (Nos. 10-12) pp. n24-n26, n33;
1922, (No. 8, Part II) pp. 849-850, 854; 1923. (No. 3) p. 300, (No. 6)
pp. 603-604, 659; 1924, (No. 10) p. 1287; 1926, (No. 10) pp. 1407,
1422, (No. n) p. 1533; 1927, (No. 3) pp. 316-317, (No. 4) p. 348,
(No. 10) p. n20; 1929, (Ko. 5) p. 827, (No. 8) pp. 1287-1288, (No. II)
p. 1467; 1930, (No. 2) p. 77, (No. 7) pp. 838-839.
D. Official Journal, Special Supplcment No. I94, 1946, pp. 28, 32-34,
43, 47, 55-56, 58-59, 76, 78-79, 250, 256-257, 278-279, 281.
E. 1'.!inutes of the Pcrmannit 1\lmulatcs Commission, Sess. I, 1921,
pp. 5, 17, 40; II, 1922, pp. 49, 68, 9r-92; Ill, 1923, pp. 80, 102-106,
111, 142, 215, 221-223, 282, 325; IV, 1924, pp. 44, 51-52, 54, 57,
61-62, 64, 79, n3, n6, 154, 157, 163-r65, 167, 176-177; V, 1924,
pp. 42,133; VI, 1925, pp. 58, 6I; VII, 1925, pp. 16-17, 135,203,217;
VIII. 1926, p. 200; IX, 1926, pp. 33-34, 36, 45,134,147; X, 1926,
pp. 86, 176-177; Xl, 1927, p. 101; XIl, 1927, p. 186; XlfI, 1928,
pp. 31, 141, 147; XIV, 1928, pp. 80. 84-85, 105-106, rnS-rng, 127,
278; XV, 1929. pp. 27, IIO, 133, 276; XVJ, 1929, pp. 129, 188;
XVlll, 1930, pp. 34, 37, 132. 137-139, 145-146, 148; XX, 1931,
pp. 56-57, 66, 228-229; XXIIT. 1933, pp. gr, 93; XXVI, 1934,
pp. 50-52, 59, 62-64, 163-166; XXVII. 1935, pp. 153, 160-161, 170-
171, 229; XXIX, 1936, pp. 133,135,137,212; XXXI, 1937, pp. n8,
128-139, 192; XXXIV, r938, pp. 74, 78, 82, 92; XXXVI, 1939,
pp. 38, 141, 280-28r.
F. Other
(r)The Covenant of the League of Nations.
(2)L. of N. Doc. C. 717, 1925, VI.
(3) The Mandates System--Origin-Prùiciples-Application (Geneva,
1945), pp. 34, 35.
(4)The League Hands Over (Gcneva, 1946}, pp. 6r, 63.
(5) 21st Assembly, rst Committee, 2nd Meeting. provisional record
(unpublished).
II. United Nations
A. Documents of the United Nations Conference on International Organi
zation, San Francisco, I945 (London/New York: United Nations
Information Organizations, 1945), Vol. I, p. 630; Vol. 5, pp. 300,
315-316; Vol. 10, p. 434.
B. United Nations Preparatory Commission, 1946
(r) Committee 4. Summary Records, pp. 39,40.
(2)Committee 7, Summary Records, pp. 2-3, 10-rL
(3)Journal, p. 131. SOUTH WEST AFRICA
(4) Doc. PC/EX/rr3/Rev. l, 12 Nov. 1945, pp. 55-56, I08-n1,
lI4.
(S) Doc. PC/20, 23 Dec. 1945, pp. 49, 118.
C. General Assernbly
(1) Resolutions:
XI (1), 9 Fcb. 1946, in U.N. Doc. A/64, p. 13; XI V (1), 12 Fcb.
1946, in U.N. Doc. A/64, pp. 35-36; 65 (I), 14 Dec. 1946, in
U.N. Doc. A/64/Add. 1, pp. 123-124; 141 (II), 1 Nov. 1947,
U.N. Doc. A/519, pp. 47-48; 224 (III), 18 Nov. 1948, in U.N.
Doc. A/Sm, pp. 86-87; 227 (III), 26 Nov. 1948, in U.N. Doc.
A/Sm, pp. 89-91; 33'7(IV), 6 Dec. 1949, in U.N. Doc. A/r25r,
p. 44; 390A (V), 2 Dec. 1950, in G.A., O.N.., Fi/th Sess., Sup.
No. 20 (A/1775), pp. 20-22; 449A (V), 13 Dec. 1950, in U.N.
Doc. A/1775, pp. 55-56; 563 (VI), 18 Jan. 1952, in G.A ., 0.R.,
Sixth Sess., Sup. No. 20 (A/2119). p. 59; 570B (VI), 19 Jan. 1952,
in U.N. Doc. A/2n9, p. 64; 749A (VIII), 28 Nov. 1953, in G.A.,
0.R., Ei'ghthSess., Sup. No. 17 (A/2630), pp. 26-27; 749B (VIII),
28 Nov. 1953, in U.N. Doc. A/2630, pp. 27-28; 852 (IX),
23 Nov. 1954, in C.A., O.R., NinthSess., Sup. No. 21 (A/2890),
p. 29; 904 (fX), 23 Nov. 1954, in U.N. Doc. A/2890, pp. 55-56;
940 (X), 3 Dec. 1955, ip G.A., 0.R., Te!'th Sess., Sup. No. 19
(A/3116), p. 23; 942 (X), 3 Dec. 1955, m U.N. Doc. A/3n6,
p. 24; 1055 (Xl), 26 Feb. 1957, in G.A., O.R., Eleventh Sess.,
Sup. No. 17 (A/3572), pp. 28-29; 1059 (XI), 26 Feb. 1957,
in U.N. Doc. A/3572, p. 30; 1060 (XI), 26 Feb. 1957, in U.N.
Doc. A/3572, p. 30; u41 (XII). 25 Oct. 1957, in G.A., 0.R.,
Tweljth Sess., Sup. No. 18 (A/3805), pp. 24-25; 1142 (XII},
25 Oct. 1957, in U.N. Doc. A/3805, p. 25; u43 (XII), 25 Oct.
1957, in U.N. Doc. A/3805, pp. 25-26; 1243 (XIII), 30 Oct.
1958, in G.A ., 0.R., Thirteenth Sess., Sup. No. 18 (A/4090),
p. 30; c246 (XIII). 30 Oct. 1958, in U.N. Doc. A/4090, p. 31;
1359 (XIV}. 17 Nov. 1959, in C.A., 0.R., FourteenthSess., Sup.
No. 16 (A/4354), p. 28; 1360 (XIV), 17 Nov. 1959, in U.N. Doc.
A/4354, pp. 28-29; 1361 (XIV), 17 Nov. 1959, in U.N. Doc.
A/4354, p. 29;1514 (XV). 14 Dec. 1960, in G.A., O.R., Fijteenth
Sess., Sup. No. 16 (A/4684), p. 67; 1565 (XV), 18 Dec. 1960,
in U.N. Doc. A/4684, pp. 31-32; 1654 (XVI), 27 Nov. 1961, in
G.A., O.R., Sixteenth Sess., Sup. No. 17 (A/5100), p. 65; 1702
(XVI), 19 Dcc. 1961, in U.N. Doc. A/5roo, pp. 39-40; 1747
(XVI), 28 June 1962, in G.A., O.R., SixteenthSess., Sup. No. 17A
(A/5roo Add. r), p. 3.
(2) Plenary Meetings.
C.A., O.R., First Sess., First Part, nth Plenary Meeting, pp. 161-
179; 12th Plenary Meeting, pp. 179-187; 14th Plenary Meeting,
pp. 200-228; 15th Plenary l\feeting, pp. 228-240; 16th Plenary
Meeting, pp. 241-257.
G.A., 0.R .. Second Sess., Vol. I, ro4th Plenary Meeting, pp. 565-
591; 105th Plenary Meeting, pp. 591-651.
G.A., O.R., Third Sess., Part I, 164th Plenary Meeting, pp. 577-
592.
G.A., O.R., Fourth Sess., 269th Plenary Meeting, pp. 523-537.
G.A .,O.R., Fi/th Sess., Vol. I, 322nd Plenary Meeting, pp. 627-632. COUNTER-MEMORIAL OF SOUTH AFRICA 143
G.A ., 0.R., Fi/teenth Sess., 947th Plenary Meeting, pp. 1271-1284.
U.N. Doc. A/PV.u36 (28 Sep. 1962), Seventeenth Session, General
Assembly, Provisional Verbatim Record of the Eleve1i H1mdred
and T!tirty-Sixth Pl,mary Meeting.
U.N. Doc. A/PV.u43 (5 Oct. 1962), Seventeenth Sessfon, General
Assembly, Provisionat Verbatim Record of the Eleven Hundred
and Forty-Third Pli:nary Meeting.
(3) Fourth Committee Meetings.
G.A., 0.R., First Sess., First Part, Fourth Comm., 3rd Meeting,
pp. 7-11.
C.A., O.R., First Sess., Second Part, Fourth Comm., Part I,
19th Meeting, pp. 96-rn7.
C.A., 0.R., First Sess., Second Part, Fourth Comm., Part II,
5th Meeting, pp. 26-32.
C.A., 0.R., Second Sess., Fourth Comm., 31st Meeting, pp. 3-9;
32nd Meeting, pp. 9-13; 33rd Meeting, pp. 13-18; 38th Meeting,
pp. 45-53; 39th Meeting, pp. 53-59; 40th Meeting, pp. 59-66;
44th Meeting, pp. 85-92; 45th Meeting, pp. 93-98; 47th Meeting,
pp. rn5-ro8.
C.A., 0.R., Third Sess., Part I, Fourth Comm., 76th Meeting,
pp. 287-297; 77th Meeting, pp. 297-306; 78th Meeting, pp. 307-
320; 79th Meeting, pp. 320-328; 80th Meeting, pp. 328-339;
81st Meeting, pp. 340-354; 82nd Meeting, pp. 355-367; 83rd
Meeting, pp. 367-372; 84th :Meeting, pp. 372-377.
G.A., 0.R., Fourth Sess., Fourth Comm., 93rd Meeting, pp. 22-
26; 128th Meeting, pp. 199-208; 129th Meeting, pp. 208-212;
130th Meeting, pp. u3-2r9; 131st Meeting, pp. 219-223; 132nd
Meeting, pp. 223-230; 133rd Meeting, pp. 230-235; 134th
Meeting, pp. 235-242; 135th Meeting, pp. 242-249; 136th
Meeting, pp. 249-254; 137th Meeting, pp. 254-258; 138th Meet
ing, pp. 258-268; r39th l\Ieeting, pp. 268-273; 140th Meeting,
pp. 273-282; 14rst Meeting, p. 282.
C.A., O.R., Fi/th Sess., Fourth Comm., 196th Meeting, pp. 359-
367.
G.A., O.R., Sixth Sess., Fourth Comm., 204th Meeting, pp. 17-19;
239th Meeting, pp. 253-260; 240th Meeting, pp. 261-265; 244th
Meeting, pp. 289-294.
G.A., 0.R., Ei'ghthSess., Fourth Comm., 363rd Meeting, pp. 301-
308; 386th Meeting, pp. 475-485; 389th Meeting, pp. 499-503;
390th Meeting, pp. 505-5II.
C.A., 0.R., Ninth Sess., Fourth Comm., 407th l\1eeting, pp. 61-70.
G.A., O.R., Tenth Sess., Fourth Comm., 491st Meeting, pp. 129-
136; 500th Meeting, pp. 179-183; 5r9th Meeting, pp. 277-280;
538th Meeting, pp. 401-404.
G.A., O.R., Eleventh Sess., Fourth Comm., 571st Meeting, pp. rn7-
uo; 572nd Meeting, pp. 1u-u4; 574th Meeting, pp. ng-122;
607th Meeting, pp. 291-299; 628th Meeting, pp. 389-394;
638th Meeting, pp. ,i35-439; 639th Meeting, pp. 441-447.
G.A., O.R., Twelfth Sess., Fourth Comm., 653rd Meeting, pp. II-I6;
654th Meeting, p. 17; 655th Meeting, pp. 19-23; 659th Meeting,
pp. 35-40; 731st Meeting, pp. 437-441.
G.A., O.R., Thirteenth Sess., Fourlh Comm., 745th Meeting, pp. I3·144 SOUTH WEST AFRICA
18; 747th Meeting, pp. 23-25; 749th Meeting, pp. 31-34; 750th
Meeting, pp. 35-37; 751st Meeting, pp. 39-40; 754th Meeting,
pp. 47-:;,1; 755th Meeting, pp. 53-55; 794th Meeting, pp. 265-
271; 795th Meeting, pp. 273-278.
C.A., O.R., FourteenthSess., FourthComm., 883rd Meeting, pp. 5-7;
900th :Meeting, pp. 83-88; 904th Meeting, pp. rn7-II2; 908th
Meeting, pp. 129-131; 909th Meeting, pp. 133-136; 910th
Meeting, pp. 137-140; 9nth Meeting, pp. 141-145; 913th
Meeting, pp. 153-159; 914th Meeting, pp. 161-166; 915th
Meeting, pp. 167-173; 916th Meeting, pp. 175-179; 918th
Meeting, pp. 185-190; 924th Meeting, pp. 221-222; 931st
Meeting, pp. 249-258; 932nd Meeting, pp. 259-263; 94'1,th
Meeting, pp. 329-335; 982nd Meeting, pp. 599-603; roorst
:Meeting, pp. 695-701.
C.A., 0.R., Fi/teenthSess., Part!, Fourth Comm., 1013th Meeting,
pp. 65-71; rn25th Meeting, pp. 145-151; 1049th lVketing,
pp. 293-299; 1051st Meeting, pp. 305-310; r:05211dMeeting,
pp. 3n-314; rn53rd l'lfeeting, pp. 315-319; 1054th Meeting,
pp. 321-324; 1055th Meeting. pp. 325-328; 1056th Meeting,
pp. 329-332; l'art II, Fourth Comm., ro98th Meeting, pp. 3-7;
lIOOth Meeting, pp. rt-15.
G.A., O.R., Sixteenth Sess., Fourth Comm., Vol. l, u82nd Meeting,
pp. 153-157; II86th Meeting, pp. 183-191; 1217th Meeting,
pp. 375-380; 1221st Mccti!1g, pp. 401-405; 1222ml Meet)ng,
pp. 407-4II; 1223rd Mcctmg, pp. 413-417; 1241st Meetmg,
pp. 545-552; Vol. II, 1262nd Meeting, pp. 651-656.
G.A., O.R., S1-'Vettlee11thess., Fourth Comm., Vol. I, 1374th
Meeting, pp. 289-294.
(4) Spccial P,J!itical Committee Meeting.
C.A., O.R., Sixteenth Scss., Spcc. Pol. Comm., 272nd Meeting,
pp. 6r-63.
(5) Ad Hoc Commiltee on South West A/rica.
U.N. Doc A/AC.49/SR.2 (1951).
U.N. Doc. A/AC.49/SR.3 (1951).
U.N. Doc. A/AC.49/SR.4 (1951).
U.N. Doc. A/AC.49/SR.7 (1951).
U.N. Doc. A/AC.49/SR.u (1951).
U.N. Doc. A/1901, in C.A., O.R., Sixth Sess., Annexes (Agenda
item 38), pp. 2-11.
U.N. Doc. A/2261, in G.A., 0.R., Eighth Sess., Annexes (Agenda
item 36), pp. 1-29.
U.N. Doc. A/2475, in C.A., 0.R., Eighth Sess., Annexes (Agenda
item 36), pp. 31-48.
(6) Committe,, on South West A/rica.
(i) Reports to the General Assembly:
G.A., O.R., Ninth Sess., Sup. No. 14 (A/2666).
C.A., O.R., Tenth Sess., Sup. No. 12 (A/2913).
G.A., O.R., Eleventh Sess., Sup. No. 12 (A/3151).
G.A., O.R., Twel/th Sess., Sup. No. 12 (A/3626).
C.A., O.R., Thirteenth Sess.. Sup. No. r2 (A/3906).
G.A., O.R., Fi/teenth Sess., Sup. No. 12 (A/4464). COUNTER-MEMORIAL OF SOUTH AFRICA 145
(ii) Other:
U.N. Doc. A/AC.73/L.10 (19 Aug. 1957), Information and Docu
mentation in resJ1ectof the Territory ofSouth WestAfrica, p. 85.
(7)Cood OfficesCommittee on South West Africa.
U.N. Doc. A/3900, in C.A., O.R., Thirteenth Sess., Annexes
(Agenda item 39), pp. 2-10.
U.N. Doc. A/4224, in G.A., O.R., Fourteenth Sess., Annexes
(Agenda item 38), pp. 1-5.
(8) Special Committee on Palestine.
G.A., O.R., Second Sess., Sup. No. II, Vol. I (A/364).
C.A., 0.R., Second 51:ss.,Sup. No. II, Vol. II (A/364/Add. 1).
(9) Special Committee on theSituation with Regard tothe Imp!ementation
of the Cranting of Independence to Colonial Countries and Peoples.
U.N. Doc. A/5446/Add. r (19 July, 1963), pp. 23-25, 64.
U.N. Doc. A/5446/Add. 3 (30 July 1963), p. 12.
(ro) Reports of the Fourth Committee.
U.N. Doc. A/n8o, in C.A., 0.R., Fourth Sess., Plenary Meetings,
Annex, pp. 103-no ..
U.N. Doc. A/1643, in C.A., 0.R., Fi/th Sess., Annexes, Vol. I
(Agenda item 35), pp. 3-10.
(II) Miscellaneous.
U.N. Doc. A/123, in (;.A., O.R.,First Sess., Seco1td Part, Faurth
Comm., Part I, pp. 199-235.
U.N. Doc. A/C.4/41, in C.A., O.R., First Sess., Second Part, Fourth
Comm., Part I, pp. 235-244.
U.N. Doc. A/334, in G.A., O.R., Second Sess., Fourtli Comm.,
pp. 134-136.
U.N. Doc. A/334/Add. 1, in G.A., 0.R., Second Sess., Fourth
Comm., pp. 136-138.
G.A., O.R., Second Sess., Fourth Comm., Annex 3h, p. 197.
U.N. Doc. A/422, in G.A., O.R., Second Sess., Plenary Meetings,
Vol. II, pp. 1537-1543.
U.N. Doc. A/929, in G.A., 0.R., Fourth Sess., Fourtli Comm.,
Annex, pp. 7-12.
U.N. Doc. A/C.4/190, in C.A., O.R., Sixth Sess., Annexes (Agenda
item 38), p. 17.
G.A., 0.R., Seventh Sess., Sup. No. 15 (A/2188), Final Report of
the United Nations Commissioner in Eritrea.
D. Security Council
(1) Meetings.
S.C., O.R., Second Year, No. 31, 124th Meeting, pp. 641-680.
S.C., 0.R., Third Year, Nos. 36-51, 271st Meeting, pp. 154-172.
(2)Other.
U.N. Doc. S/5382 (5 Aug. 1963), p. r.
E. Economie and Social Council
(1)Council Document.
Ecosoc. O.R., Sixteenth Sess., Sup. No. 13, Report of the Ad Hoc
Committee on Forced Labour, pp. 541, 604- (This document is also SOUTH WEST AFRICA
No. 36 in the Studies and Reports (NeuJ Series) of the Interna
tional Labour Office.)
(2) Economie Commission for Africa.
U.N. Doc. E/CN.I4/28, Economie Survey of Africa since I950,
pp. I3, ,;,:7,30, 6I, m5.
U.N. Doc. E/CN.I4/I80 (18 Dec. I962), Report of the Seminar on
Urgent Administration Problems of African Governments, Annex
IV, pp. 121-122.
(3) Social Commission.
U.N. Doc. E/CN.5/324/Rev. 1,ST/SOA/33 (Apr. 1957), Report on
the World Social Situation, pp. 79-81, n2-II3.
U.N. Doc. E/CN.5/332, ST/SOA/39 (1959), International Survcy of
Programmes of Social Development, p. 170.
U.N. Doc. E/CN.5/346/Rev. I, ST/SOA/42 (I96I), Report on the
World Social Situation, pp. 23, 96.
(4) Commission on Human Rights.
Sub-Commission on Prevention of Discrimination and Protection
of Minolities.
U.N. Doc. E/CN.4/Sub.2/181 (7 Nov. 1956), Study of Discrùni
nation ùi Education, pp. I68-169.
U.N. Doc. E/CN.4/Sub.2/I81/Rev. r (Aug. 1957), Stuay of Dis
crimination ili Education, p. mg.
F. Trusteeship Council
(1) Resolution.
293 (VII), I7 July I950, in T.C., O.R., Sevcnth Sess., Resolutions,
Sup. Ne,. I (T/794), pp. 49-55.
(2)Council Meetings.
T.C., O.R., Secona Sess., First Part, 6th Meeting, pp. 106-140;
ISth Meeting, pp. 470-512; 18th Meeting, pp. 571-609.
T.C., O.R., Third Sess., 31st Meeting, pp. 405-422; 41st Meeting,
pp. 530-539; 42nd Meeting, pp. 539-559.
T.C., O.R., Fi/th Sess., rst Meeting, pp. 2-3; 25th Meeting,
pp. 307-3I2; 27th Meeting, pp. 328-342.
T.C., O.R., Fifteenth Sess., 584th Meeting, pp. I63-168, 592nd
Meeting, pp. 219-223; 602nd Meeting, pp. 291-295.
T.C., O.R., Seventeenth Sess., 687th Meeting, pp. 267-27I.
{3)Reports to the Ge~eral Assembly.
G.A., 0.R., Third Sess., Sup. No. 4 {A/603).
C.A., O.R., Fourth Sess., Sup. No. 4 (A/933).
G.A., O.R., Fi/th Sess., Sup. No. 4 (A/1306).
G.A., O.R., Sixth Sess., Su,P. No. 4 (A/1856).
G.A., O.R., NinthSess., Sup. No. 4 (A/2680).
G.A., O.R., Tenth Sess., S11p.No. 4 (A/2933).
G.A., 0.R., Eleventh Sess., Sup. No. 4 (A/3I70).
G.A., O.R., Twelfth Sess., Sup. No. 4 (A/3595).
G.A., O.R., Tkirteenth Sess., Sup. No. 4 {A/3822), Vol. II.
G.A., O.R., Fourteenth Sess., Sup. No. 4 (A/4100).
G.A., O.R., Fifteenth Sess., Sup. No. 4 (A/4404).
G.A., 0.R., Sixteenth Sess., Sup. No. 4 (A/48I8).
G.A., O.R., Seventeenth Sess., Sup. No. 4 (A/5204). COUNTER-MEMORIAL OF SOUTH AFRICJ\ 147
(4) Reports of Visiting Missions.
T.C., 0.R., Fi/teenth Sess., Sup. No. 2 (T/1168), United Nations
Visiting Mission to Trust Territorics in East Africa, I954,
Report on Ruanda-Urundi. ·
T.C., O.R., Fi/teentk Sess., Sup. No. 3 (T/u69), United Nations
Visiting Mission ta Tri,st Territories in East A/rica, I954,
Report on Tanganyika.
T.C., 0.R., Fi/th Spec. Sess., Sup. No. 2 (T/1218), United Nations
Visiting Mission to the Trust Territories of Togoland under
British Administralion and Togoland under French Adminis
tration,r955: Special Report on theTogoland Unification Problem
and the Future of the Trust Territory of Togoland under British
Administration.
(S)Trusteeskip Agreements.
U.N. Doc. T/Agreement/2, 9 June 1947, Trusteeship Agreement for
the Territory of Tanganyika.
U.N. Doc. T/Agreement/3, 9 June 1947, Trusteeship Agreement for
the Territory of Ruanda-Urnndi.
U.N. Doc. T/Agreement/rn, 8 Aug. 1951, Trusteeship Agreement
for the Territory of Somaliland 1mderltalian Administration.
(6)Miscellaneous.
G.A., O.R., Second Se.,s., Sup. No. rn (A/402/Rev. 1), Proposed
Trusteeship Agreem,mt for the Mandated Territory of Nauru,
submitted by the Governments of Australia, New Zealand and the
United Kingdom.
U.N. Doc. T/175, in T.C., O.R., Third Sess., Sup. {T/337), pp. 51-
152.
G.A., 0.R., Seventk Sess., Sup. No. 12 (A/2151), Special report of
the Trusteeship Council on administrative unions afjecting Trust
Territories and on thi:status of the Cameroonsand Togoland under
French administration arising out of their memberskip in the
French Union.
G. Secretariat
(1) Departmçnt of Economie and Social Atfairs.
(i) Statistical Office:
Demographic Yearbook I960, Twelfth Issue (New York, r96o),
pp. 99-100.
Statistical Yearbook I962, Fourteenth Issue (New York, rg63),
pp. 21-39.
U.N. Doc. ST/STAT/SER.K/2 (1963), Compendium of Social
Statistics: I963, p. 323.
(ii) Bureau of Social Affairs:
Yearbook on Human Rights for I957 (New York, United
Nations, 1959), p. 271. .
Yearbook on Hum,m Rights for I958 {New York, Umted
Nations, 1960), p. 287.
"Freedorn frorn Arbitrary Arrest, Detention and Exile", in
Yearbook on Human Rights: First S1epplementary Volume
(New York. United Nations, 1959), p. 178.
U.N. Doc. ST/SOA/50, E/CN.5/367/Rev. r {1962), Repart of SOUTH WEST AFRICA
the Ad Hoc Croup of Experts on Housing and Urba;~Develop-
ment, p. I. ·
(iiiBureau of Economie Affairs:
U.N. Doc. E/2670, ST/ECA/29, Processes and Problems oj
lndustrialization in Under-Deve!oped Countries (New York,
1955), p. 2I.
(2)Department of Trnsteeship and Information /rom Non-Self-Governing
Territories..
Division· of Information from Non-Self-Governing Territories
U.N. Doc. ST/TRI/SER.A/13 (1958), Special Study on Economie
Conditions in Non-Self-Govcrning Territories: Analyses of infor
mation transmitted to the Secrctary-General (1956-1957), p. 131.
U.N. Doc. ST/TRl/SER.A/r5, Progress oj the Non-Sel/-Governing
Tcrritor.ies under the Charter, 5 Vols. (r960-196r), Vol. 3, Social
Conditions, pp. 23-24; Vol. 4, Educational Conditions, pp. 37-38,
41-42, 49.
U.N. Doc. ST/TR1/SER.A/r6 (1960), SpecialStudy on Educational
Conditions in Non-Self-Governing Territories: Analyses of infor
mation transmittcd to the Secretary-General (1956-1958), pp.
41-43, 66.
U.N. Doc. ST/TRI/SER.A/18 (1962). Special Study on Social
Adva11cmnent in Non-Self-Governing Territories: Analyses of
information transmitted to the Secretary-General (1957-1959),
pp. 28-:~9.
(3)Offe.ceof Public Information.
Everyman's United Nations, Sixth Edition (New York, 1959),
pp. 4-6.
U.N. Press Release GA/2501, 26 May 1962, Joint Statemcnt on
Pretoria talks following visit of UN Representatives to South West
A/rica.
H. Intergovernmental Agencies Related to the United Nations
(1) International Atomic Energy Agency.
I.A.E.A. Doc.ST/DOC/36 (June 1961), Report of an IAEA Mission
ta Liberia, p. 31.
(2)Internationat Labour Organisation.
African Labour Conference, Ilnd Session [Elizabethville], ]uly
I950, Final Report, pp. 1n-112.
International Labour Organisation, Report 111, A/rican Regional
Conference I960, Relations between Employers and Worlwrs:
(a) /ret,dom of association (b) joint consultation (c) collective
bargaining (Third Item on the Agenda) [Geneva, International
Labow- Office, 1960], p. 60.
African Labour Survey, Studies and Reports, New Series, No. 48
(Geneva. International Labour Office, 1962), p. 37.
Report of the Commission appointed u:nder Article 26 of the Consti
tution of the International Labour Organisation to examine the
Complaint filed by the Government of Portugal concerning the
Observunce by the Governme11tof Liberia of the Forced Labour
Convention, I9JO (No. 29) [Geneva, International Labour
Office, 1963), p.n5. COUNTER-MEMORIAL OF SOUTH AFRICA 149
"Inter-Territorial Migrations of Africans South of the Sahara",
in International Labour Reviw, Vol. LXXVI, No. 3 (Sep.
1957), pp. 292-310, at p. 308.
(3) Food and Agriculture Organization of the United Nations.
Communal Land Tem..ire: An FAO Land Tenure Study (FAO
Agricultural Studies, No. :r7) [Rome, Food and Agriculture
Organization of the United Nations, Mar. 1953], pp. 2, 26-27.
(4) United Nations Educational, Scientific and Cultural Organization.
Social Implicationsof lndustrialization and Urbanization in Africa
South of the Sahara (Paris, United Nations Educational, Scien
tific and Cultural Organization, 1956), pp. 53, 693.
Asia, Arab States, A/rica: Education and Progress (Paris, United
Nations Educational, Scientific and Cultural Organization,
1961), pp. 51-52.
Unesco/ED/1So (196r), Conference of African States on the Develop
ment oj Education in A/rica, Addis Ababa, IS-25 May I96I,
Outline of a Plan for African Educational Development, pp. 5,
8, 23.
Unesco/ED/181 (1961), Con/erence of African States on the Develop
ment of Education in A/rica, Addis Ababa, I5-25 May I96I,
Final Report, pp. 3, 5-7, 38-39; Annex IV, pp. 32-33, 55, 78.
Unesco/ED/r9r (r962), Meeting of Ministers of Education of
African Countries participating in the Implementation of the
Addi.~A baba Plan, Final Report, pp. 17-18, 81, r53-154.
J. Other
(r) The Charter of the United Nations.
(2)The Statute of the International Court of Justice.
(3) U.N. Doc. A/70, Oct. 1946-Terms of League of Nations Mandates.
{4)"New Guinea-Most Backward Trust Area", in United Nations
Review, Vol. 1, No. 3 (Sep. 1954), pp. 31-36, at p. 31.
(5}"A Formidable Task in New Guinea: Peaceful Penetration Con
tinue<l in Primitive Trnst Territory", in United Nations Review,
Vol. 2. No. 3 (Sep. 1955), pp. 33-44, at p. 34.
(6) "First Progress Report to the Secretary-General from his Special
Reprcscntative in the Congo", in United Nations Review, Vol. 7,
No. 5 (Nov. 1960), pp. 15-25, at p. 22.
III. Commission for Technical Co-operation in
Africa South of the Sahara
Proceedings of the Third Inter-A/rican Soils Conference, Dalaba, 2-II
November I959 (Publication No. 50), Vol. I, pp. 73, 89-90.
IV. Australia
A. New South Wales
Act No. 74 of 1902, Vagrancy Act, 1902, secs. 4 (1) (a), 4 (2) (i) and
9 (1), in The Statutes of New South Wales (Public and Private)
[Sydney, William Applegate Gullick, 1903], pp. 541-544.
B. \Vestern Australia
(r) 55° Victoriae No. 27, Police Act, I892-I952, secs. 49 and 65 in150 SOUTH WEST AFRICA
The Reprinted Acts of the Parliament of Western Attstralia (Perth,
William H. Wyatt, 1954), VoJ.6, pp. 23, 29.
(2)55 Victoriae No. 28, The Masters and Servants Act, r892, in The
Statutes of Western Australia, Vol. II, 1883-1892 (1896), p. 617.
V. Basutoland
A. Legislation
Proc. No. 2B of 1884, General Law Proclamation, as arnended, in
Revised Edition of the Laws of Basutoland in Force on the ISt Day of
January, r949 (London, Waterlow & Sons Ltd., 1950), Vol. I,
Title III, Chap. 26, pp. 408-4n.
Froc. No. 46 of 1907, Public Safety Proclamation, as amended, sec. 10,
in Revised Edition ofthe Laws of Basutoland in Force on the rst Day
of ]anuary, r949 (1950). Vol. I.Title III, Chap. 35, p. 447.
Revised Edition of the Laws of Basutoland in Force on the IStDay of
January, I949 (1950), Vol. III, Title III, Chap. 31, Part I, pp.221-
222; Part VI, sec. 3, p. 234.
B. Other
Basutoland Constitutional Handbook-Containing the Basutoland
(Constitution) Ortler in Council,1959, and Related Legislation an_d
Reports (Maseru, 1960), pp. 28-32, 38-44.
VI. Bechuanaland Protectorate
Froc. No. 36 of 1909, General Law Proclamatfon, in The Laws of the
Bechuanaland Protectorate, containing the Orders-in-Council, Procla
mations and Notices made thereunder, in Force on the 1st Day of
January, 1948, Revised Edition (London C. F. Roworth, Ltd., 1949),
Vol. I, Title IV, Chap. 27, p. 251.
VII. Belgium
Rapport sur l'Administration belge du Ruandi-Urundi pendant l'année
I959 présentéaux Chambres par Monsieur le Ministre des Affaires
africaines(Bmxelles, Imprimerie Fr. van Muysewinkel, Ig6o), pp. 253-
254, 257-258, 472, 474-475.
VIII. Canada
(1) The Revised Statides of Canada, r927 (Ottawa, Frederick Albert
Acland, 1927), Vol. II, Chap. 98, secs. 2 (i) and 2r, pp. 2,7.
(2) Chap. 51, 2-3 Elizabeth II, 1953-54, secs. 162, 164, 434, 437, in
Criminal Codt andSelected Statutes (Ottawa, Edmond Cloutier, 1954),
pp. 52-53, 144-145.
IX. Cape of Good Hope
A. Report of Commission
South African Natt'veAffai'rsCommùsion r903-5, 5 Vols. (Cape Town,
Cape Times Limited, Govemment Printers, 1904-1905), Vol. I,
Report of the Commission, pp. 5, 26, 35-36, 50-51, 74. COUNTER-MEMOHIAL OF SOUTH AFRICA I5I
B. Legislation
(r) Statutes.
Act No. r5 of 1856, Masters and Servants Act, in Statu/es of the
Cape of Good Hope, I652-I895 (Cape Town, Juta & Co., 1895),
Vol. I, pp. 570-590.
Act No. 3 of 1865, The British Katfraria Incorporation and
Parliamentary Representation Amendment Act of I865, in Statu/es
of the Cape of Good Hope passed by the Third Parliament during
the Sessions I864-I868 (Cape Town, Saul Solomon & Co., 1868),
pp. 127-137.
Act No. 18 of 1873, Masters and Servants Law Amendment Act,
I873, in Statutes of the Cape of Good Hope, I652-I895, Vol. Il,
pp. 1293-1301.
Act No. 23 of 1879, Vagrancy Act, I879, in Statu/es of the Cape of
Good Hope passed by the Sixth Parliament ditring the Sessions
I879-I883 (Cape Town, W. A. Richards & Sons, Govemment
Printers, 1884), pp. 54-60.
Act No. 27 of r88g, Vagrancy Law Amendment Act, I889, in Statutes
oftheCape of Good Hope passed by the Eighth Parliament during
the Sessions I889-I893 (Cape Town, W. A. Richards, 1894),
pp. 46-47.
Act No. 30 of 1895, The Local Authorities Increased Powers Act,
I895, in Stattttes of the Cape of Good Hope I652-I905 (Cape
Town, Cape Times Limited, Govemment Printers, 1906), Vol.
III,pp. 3530-3532.
Act No. 41 of 1895, British Bechuanaland Annexation Act, I895,
in Statu/es of the C.ipe of Good Hope I652-I905, Vol. III, pp.
3571-3578.
Act No. 40 of 1902, The Natives Reserve Locations Act, I902, in
Statu/es of the Colony of the Cape of Good Hope passedby Parlia
ment during the Sessions I902-06 (Cape Town, Cape Times
Limited, Govemment Printers, 1906), pp. 45n-4518.
(2)Proclamations.
No. no of 1879, in The Cape of Good Hope Government Gazette,
No. 5950 (16 Sep. 1879), pp. 7-8.
No. 229 of 1883, in The Cape of Good Hope Government Gazette,
No. 6436 (14 Dec. 1883), p. 1291.
No. 184 of 1884, in The Cape of Good Hope Government Gazette,
No. 6519 (8 Aug. 1884), p. 1.
No. 53 of 1891, in The Cape of Good Hope Government Gazette,
No. 7267 (13 Feb. 1891), p. 270.
C. Other
G 50-1877, Report of W. Coates Palgrave, Esq., Special Commissioner
io the Tribes North otheOrange River, of his Mission toDamaraland
and Great Namaqualand in r876, pp. 1, 12-14, 16-21, 25-26, 40-42,
44-45, 48-49. 5r-54, 57, 61-83, 94.
X. Colony of Natal
Legislation
Law No. 44 of 1887, in The Laws of Natal (Pietermaritzburg, Wm. SOUTH WEST AFRICA
Watson, Govemment Printer, 1890), Vol. III (1879-1889), pp. 1756-
1760.
Law No. 19of 189:c,Schedule in The Natal GovernmentGazette, Vol. XLIII,
No. 2506 (II Aug. 1891), pp. n79-u89.
Act No. 49 of 1901, in Acts of the Parliament of the Colony of Natal, passed
in the Fi/th Se:,sion of the Second Colonial Parliament, I90I (Pieter
maritzburg, "Times" Printing and Publishing Co. Ltd., 1901), pp. 168-
172.
Act No. 3 of 1904, in Acts of the Parliament of theColony of Natal, passed
in the Second S,%sion of the Fourth Colonial Parliament, I904 (Pieter
maritzburg, "T1mes" Printing and Publishing Co. Ltd., 1904), pp. 6-7.
XI. Ethiopia
(1) Ministry of Education and Fine Arts, Bureait of Educational Rcsearch
and Statistics, Governmcnt, Mission, Private, Community and Church
Schools I959-I960, p. 6.
(2) Ethiopia: Facts and Figures (Addis Ababa, Ministry of Information
of Imperial Ethiopian Govemment, 1960), p. 3.
XI!I. Federation of Rhodesia and Nyasaland
(r) Report on an Economie Survey of Nyasaland, r958-I959, C.Fed. 132,
pp. 168, 171, IJ4,
(2) Brelsford, W. V. (ed.}, Handbook to the Federation of Rhodesia and
Nyasaland (London, Casscll and Co. Ltd., for the Federal Information
Department, I960), p. 493.
(3) Federal Govemment Press Statement 726/63/DER (30 July 1963),
Erosion of the Rule of Law in Nyasaland, pp. 8-9.
XIII. France
A. Report to the United Nations
Rapport annuel du Gouvernement français aux Nations Unies sur
l'administration du Cameroun placésous la tutelle de la France, année
I947 (Paris, Charles-Lavauzelle et Cie, 1948), pp. 12, 24-25.
B. Other
(1) Conférencede la Paix I9I9-20, Recueil des Actes de la Conférence
(Paris, Imprimerie Nationale, 1934), Partie VI, Traités avec les
Puissances Ennemies mis en vigueur, A, Préparation de la mise
en vigueur, 1er Fasc., pp. 327, 329-330, 339-345, 348-350, 353,
399-416.
(2) Madagasca.r et les Territoires français de l'océanIndien et de la
mer Roug,i: Comores-Iles australes-Somalie (Paris, Secrétariat
généraldu Gouvernement, Direction de la Documentation, 1954).
p. 17.
XIV. German Empire
(r) Deutsches K olonialblatt: Amtsblatt für die Schutzgebiete in Afrika
und in der Südsee, XVII Jahrgang. No. 19 (r. Oktober 1906), p. 643:
XVIII Jahrgang, No. 20 (I5, Oktober 1907), p. 981. COUNTER-M.EMORIAL OF SOUTH AFRICA r53
(2) Die deutsche Kolonial-Gesetzgebtmg, Sammlung der auf die deutschen
Schutzgebiete bezüglichen Gesetze, Verordnungen, Erlasse und inter
nationalen Vcreinbarungen mit Anmcrkungen und Sachregister (Ber
lin,Ernst Siegfried l\iittler und Sohn), NeW1ter Band (Jahrgang
1905), pp. 221-241, 284-286; Zehnter Band (Jahrgang 1906), pp. 25-
27, 142-143, 298; Elfter Band (Jahrgang 1907), pp. 233-234, 347-349,
370-371, 421; Zwolfter Band (Jahrgang 1908), pp. 26-27; Dreizehnter
Band (Jahrgang 1909). pp. 19-34.
(3) Amtsblatt jür das Schutzgebiet Deutsch-Siidwestafrika, J Jahrgang,
No. 20 (15. Januar 19n), pp. 259-260.
(4) Die deutschenSchutzgebietein Afrika und derSiidsee, I9I I/I2-Amtliche
Jahresberichte, herausgegeben vom Reichs-Kolonialamt (Berlin,
Ernst Siegfried l\Iittler und Sohn, Konigliche Hofbuchhandlung,
1913), Statistischer Teil, pp. 40-41.
(5) Die deutschen Schutzgebiete in Afrika und der Siidsee I9I2/I9IJ
Amfüche Jahresberichte, herausgegeben vom Reichs-Kolonialarnt
(Berlin, Ernst Siegfried Mittler und Sohn, Konigliche Hofbuch
handlung, 1914), Berichtsteil, p. 130; Statistischer Teil, pp. 22, 46-47,
57.
XV. Ghana
Education Statistics I959, Statistical Reports, Series 1, No. 6 (Accra,
Office of the Government Statistician, 1959), p. 7.
XVI. Guinea
Dccree No. 43 of 18 January 1963, in Journal Officiel de la République
de Guinée,No. 18 (1erfévrier, 1963), p. 18.
XVII. Kenya
Legislation
(1)Ordinances.
No. 12 of 1915, Crown Lands Ordinance, as amendcd, in The Laws
of Kenya in Force on the 2Ist Day of September, I9,;8, Revised
Edition (Nairobi, Government Printer), Vol. II, Title XVI, Chap.
155, secs. 36, 55,57, 63 and 88, pp. 2026, 2030-2032, 2040.
No. 9 of 1920, Vagrancy Ordinance, as amended, in The Laws of
Kenya in Force on the 2ist Day of September, I948, Revised Edition,
Vol. I, Title V, Chap. 51),sec. 3, p. 769.
No. 1 of 1924, The Legislative Coundl (Amendment) Ordinance, r924,
in Colony and Protectornte of Kenya, Ordùtances enacied during the
year I924, Vol. III (New Series) [Nairobi, Government Press,
1925), pp. I-2.
No. 39 of r949, Voluntarily Unemployed Persans (Provision of Em
ployment) Ordinance, I949, in Colony and Protectorate of Kenya,
Ordinances enacted during the year I949 (Nairobi, Government
Printer), Vol.XXVIII (New Series), secs. z, 6-8, II,13-14, pp. 168-
171.
No. 48 of 1960, Legislatr'.veCouncil Elections Ordinance, I960, in
Colony and Protectorate of Kenya, Ordinances enacted during the154 SOUTH WEST AFRlCA
year I960 (Nairobi, Government Printer), Vol. XXXIX (New
Series), pp. 338-359, at p. 342.
(2)Government Notices.
No. 61, Additional Instructions passed under the Royal Sign Manual
and Signet !o the Governor and Commander-in-Chie/ of the Colony
of Kenya, in regard to the constitution of the Executive Councit and
of the Legùlative Council thereo/, 28th Decembt:r, I925, in Colony
and Protectorate of Kenya, Proclamations, Rules and Regulations
(Nairobi, Government Printer), Vol. V (New Series) [1927], pp. 32-
35.
No. 248, Add1'.tionalInstructions passed imder the Royal Sign Manual
and Signet to the Governor and Commander-in-Chie/ of the Colony
of Kenya, in regard to the constitution of the Legislative Council
thereof, 28th Marck, I927, in Colony and Protectorate of Kenya,
Proclamations, Rules and Regulations (Nairobi, Government
Printer), Vol. VI (New Series) [1928], pp. 524-528.
No. 431, Additional lnstrnctions passed ttnder the Royal Sign Manual
and Signet to the Governor and Commander-in-Chie/ of the Colony of
Kenya in tegard to the Executive and Legislative Councils thereof,
27th April, 1948, in Colony and Protectorateof Kenya, Proclamations,
Riûes and Regulations (Nairobi, Govemment Printer), Vol. XXVII
(New Series) [1949], pp. 139-148.
XVIII. Liberia
{r} The First West African Summit Conferenceheld at Sanniquellie, Central
Province, Liberian Hinterland, ]uly I5-r9, I959 (Monrovia, Liberian
Information Service/London, Consolidated Publications Co. Ltd.,
1959)' p. 30.
(2) The Fourth Annual Report of the Department of Public Instruction
R.L., covering the period Sept. I, I958-0ct. JI, I959, submitted by
Nathaniel V. Massaquoi, Secretary of Public Instruction (Monrovia,
Oct. 31, 1959), pp. 53-54, Appendices VI and VII.
(3) Liberia Annual Reviezv I962-I963 (Monrovia, Consolidated Publi
cations Inc.), pp. 278-281.
XIX. Malagasy Republic
Livre d'Or dela RépubliqueMalgache {L'Imprimerie officiellede Madagas
car, 1959), p.55.
XX. New Zealand
Act No. 35 of 1927, The Police 0/jences Act, I927, secs. 49, 50, 52 (1)
and 52 (r) (i), in The Statutes of New Zealand I955 (Wellington, R. E.
Owen, Government Printer, 1956), Vol. II, pp. 1781-1783.
XXI. Northem Rhodesia
Lcgislation
(1) Ordinances.
Ordinance of the local Legislature to Provide for the Election of Members
to the Legislative Counet"l.-Jime 4, I925 (as amended to 1937), in COUNTER-MEMORIAL OF SOUTH AFRICA
155
The Constitutions of all Countries (London, His Majesty's Stationery
Office, 1938), Vol.I, The British Empire, pp. 532-535.
No. 53 of 1929, Townships Ordinance, as amended, in Laws of Northern
Rhodesia, 1962 Edition (Lusaka, The Govemment Printer), Vol. IV,
Chap. r:20, sec. :27,Tke Townships Regulations, Part VI, reg. 3r,
p. 98; also 1963 Edition, sec. 27, Part XII, regs. 130 and 135 (1),
pp. II0-lII,
No. 56 of 1929, Employment of Natives Ordinance, as amcnded, in
Laws of Northern Rhodesia, 1960 Edition (Lusaka, The Govemment
Printer, 1960), Vol. V, Chap. 171, secs. 74 and 80, pp. 27, 29.
No. 25 of 1936, Barotse Native Authority Ordinance, as amended, in
Laws of Northern Rhodesia, 1963 Edition (Lusaka, The Government
Printer, 1963), Vol. V, Chap. 159, pp. 2-13.
No. 32 of 1948, Urban African Hoiising Ordinance, as amendcd, in
Laws of Northern Rhodesia, 1959 Edition (Lusaka, The Government
Printer, 1959), Vol. VII, Chap. 234, secs. 21, 23 (1) and 23A
(inserted by Ord. No. 9 of 1960), p. 6.
(2) Orders in Council.
The Northcrn Rhodesia Ordcrs in Council, I924 to I960, secs. 41 (1)
and 43 (1), in Laws of Northern Rhodesia, 1961 Edition (Lusaka,
The Government Printer, 1961), Vol. VIII, App. 2,pp. 15-16.
The Northern Rhodcsia (Crown Lands and Native Reserves) Orders in
Council, I928 to I96I, sec. 6, in Laws of Northern Rhodesia, 1962
Edition (Lusaka, The Govemment Printer, 1962), Vol. VIII,
App. 5, p. 7.
The North1:rnRhodesia (Crown Laiids and Native Reserves) Orders ùi
Council, I928 to I962, sec. 6, in Laws of Northern Rhodesia, 1963
Edition (Lusaka, The Government Printer, 1963), Vol. VU[.
App. 5, pp. 7-8.
The Northern Rhodesia (Nati've Trnst Land) Orders in Council, I947
to I96I, secs. 5-6, in Laws of Northern Rhodesia, 1962 Edition
(Lusaka, The Government Printer, 1962). Vol. VIII, App. 5,
pp. 34-37.
The Northern Rhodesia (Native Trust Land) Orders in Coimcil, I947
to I962, sec. 5, in Laws of Northern Rlwdesia, 1963 Edition (Lusaka,
The Government Printer, 1963), Vol. VIII, App. 5, pp. 34-36.
The Northern Rhodesia (Constitution) Order in Council, I962, sec. 3,
in Laws of Northern Rliodesia, 1963 Edition (Lusaka, The Govern
ment Printer, 1963), Vol. VIII, App. 3, pp. 4-5.
(3)Other.
Penal Code, I9JI, secs. 34 (3) and 158, in Laws of Nortkern Rhodesia,
1963 Edition (Lusaka, The Government Printcr, 1963), Vol. I,
Chap. 6, pp. 28, 74.
XXII. Orange Free State
(1) Law No. 8 of 1893, sec. 2, in The Statute Law of the Orange River
Colony (Bloemfontein, The Arb'llSPrinting and Publishing Company
Ltd., 1907), p. 220.
(2) Law No. 8 of 1899, sec. 1, in The Statitte Law of the Orange River
Colony (1907). p. 26.c;. SOUTH WEST AFRICA
XXIII. Portugal
(r) Caetano, M., Colonizing Traditions, Principles and Methods of the
Portuguese [Republica Portuguesa, Ministério do Ultramar, Divisào
de Publicaçôes e Biblioteca Agència Geral do Ultramar] (Lisbon,
Atica Limitida, 1951), p. 43.
(2) Political Constitution of the Portuguese Republic, Second Edition
(Lisbon, S.N.I., 1948), pp. 66-67.
(3) Political Constitution of the Portuguese Republic {Lisbon, S.N .I., 1957),
p. 36.
XXIV. South African Republic
(1) Law No. 6 of 1880, in De Locale Wette;nder Zuid Afrikaansche Repu
bliek I849-I885 (Pretoria, J. F. Celliers, 1887), pp. 748-751.
(2) Law No. 22 of 1895, in De Locale Wetten en Volksraadsbesluiten der
Zuid-Afr. Re 1ubliek, benevens de Proclamaties van ZHEd. den
Staatspresident en de belangrijke Gouvernements-Kennisgevingen,
gedurende het jaar 1895 (Pretoria, Staatsdrukkerij van de Z.A. Repu
bliek. 1896),pp. 228-231.
(3) Law No. 23 of 1895, in De Locale TVettenen Volksraadsbesluiten der
Zuid-Afr. Republiek (1896), pp. 232-244.
XXV. Southern Rhodesia
A. Legislation
(1)Statutes.
Act No. 2:;of 1879, The Vagrancy Act, as amended, in The Statute
Law of Southern Rhodesia in Force on the ISt Day o/ January,
r939, Revised Edition (London, C. F. Roworth Ltd., 1939),
Vol. I, Title V, Chap. 45, pp. 605-608.
Act No. 30 of 1930, Land Apportionment Act, as amended, secs. 29
and 32, in The Statute Law of Southern Rhodesia in Force on
the Ist Day of January, :r939, Revised Edition, Vol. V, Title
XXIV, Chap. 240, pp. 120-12r.
Act No. 14 of 1936, Natives Registration Act, in The Statute Law
ofSouthern Rhodesia in Force on the ISt Day of January, r939,
Revised Edition, Vol. II, Title IX, Chap. 76, pp. 275-285.
Act No. II of 1941, Land Apportionment Act, I94I, in The.Statute
Law of Southern Rhodesia r94I (1942), pp. 50-90.
Act No. 6 of 1946, Natives (Urban Areas) Accommodation and
Registration Act, r946, in The Statute Law of Southern Rhodesia
I946 (1947), pp. 6-30.
Act No. 20 of 1951, Natives (Urban Areas) Accommodation and
Registration Act, :r95r, in The Statute Law of Southern Rhodesia
I95I {HJ52), pp. 285-320.
Act No. 40 of 1960, Vagrancy Act, I960, in The Statute Law of
Southern Rhodesia I960 (1961), pp. 321-329. .
Act No. 37 of 1961, Land Àpportionment Amendment Act, I96I, m
The Statute Law of Southern Rhodesia :r96I (1962), pp. 235-285.
(2) Ordinances.
No. 1 of 1899, Masters and Servants [Ordinance], as amended, COUNTER-MEMORIAL OF SOUTH AFRICA 157
secs. 47 (r), 49 and 60,in The Stalt,te Law o/ Southern Rhodesia
in Force on the ISt Day of January, I939, Revised Edition,
Vol. V, Title XXII, Chap. 231, pp. 12-13, 16-17.
No. 4 of 1906, Native Urban Locations [Ordinancej, as amended, in
The Statute Law of Southern Rhodesia in Force on the Ist Day of
]anuary, x939, Rcviscd Edition, Vol. II, Titlc IX, Chap. 84,
pp. 315-320.
No. 14 of 1908, Private Locations [Ordinance], in The Statute Law
of Southern Rhodesia in Force on the Ist Day of January, I939,
Reviscd Edition, Vol. II, Title IX, Chap. 83, pp. 311-314.
No. 14 of 1912, Vo!e,s Qualification and Registration Amendment
Ordinance, 1912, in The Statute Law of Southern Rhodesia, From
IStJanuary, x9n, to Jist December, x922 (Governmcnt Printcr,
1923), pp. 225-227.
No. 15 of 1913, Native Passes [Ordinance], as amcndcd, secs. 7-10
and 20. in The Statute Law of Southern Rhodesùi il. Force on
theIst Day of January, I939, Reviscd Edition, Vol. II, Title IX,
Chap. 77, pp. 287-289.
(3) Proclamation.
No. 17 of 1898, secs. 3-5, in The Statute Law of Southern Rhodesia
(From the CAarter to December 3r, I898) [Salisbury, Argus
Printing and Publishing Co., 1899], pp. 158-159.
(4) Orders in Council.
The Southem Rhodcsia Order in Co1111ci1 l898, in The Statute Law
of Southern Rhodcsia. (From the Charter to Deccmbcr 3r, r898)
[1899], pp. 32-55.
Southern Rhodesia Order in Council, x920, secs. 2 and 4, in The
Statute Law of Southern Rhodesia, From xst J anuary to JISt
December, x920 (1921), pp. 2561-256:l.
(S)Letters Patent.
Letters Patent providing for the constitution of Responsible Govem
ment in the Colony of Southern Rhodesia, 25th Aiigust, x923,
sec. 42, in The Statute Law of Southern Rhodesia, From Ist
J anuary to Jist Deccmber, I923 (1924), p. 25.
B. Other
(r) The African in Southern Rhodesia, 8 Nos. (London, High Com
missioner for Southern Rhodesia), No. 1, Education, p. 2.
(2)Official Year Book of Southern Rhodesia, No. 4 (1952) [Salisbury,
Rhodesian Printing and Publishing Co.. Ltd., 1952], pp. 4r, r30.
(3) African Education in Southern Rhodesia, Southern Rhodesia
Information Sheet, No. 25 (Salisbury, Southern Rhoclcsia Infor
mation Service, 1962), pp. 4-7.
XXVI. Swaziland
Legislation
Proc. No. 28 of 1907, in Official Gazette of the High Commissioner for
South A/rica, Vol. xxr, No. 312 (25 Oct. 1907). pp. 7-10. .
Proc. No. 39 of 19ro, Native An~as (Sa/eguarding) Proclamation, m
Revised Edition of the Laws of Swaziland in Force on the ISt Day SOUTH WEST AFRICA
oiApril, I949 (London, C. F. Roworth Ltd., 1951), Vol. I, Title X,
Chap. 62, pp. 575-577.
Proc. No. 2 of 1946, Native Land Settlement Prodamation, as amended,
in Revised Edition of the Laws of Swaziland in Force on the ISt Day
ofApril, I949 (1951), Vol. 1, Title X, Chap. 63, pp. 578-585.
Proc. No. 45 of 1954, Swaziland African Labour Proclamation, 1954,
sec. 42 {1}.
Proc. No. 58 of 1960, African Labour (Amendment) Proclamation,
I960, in Official Gazette of the High Commissioner for Basuioland, the
Bechuanalaml Protectorate and Swaziland, Vol. CCXXIII, No. 3200
(n Nov. 1960), p. 800.
XXVII. Tanganyika
Molohan, M. J. B., Detribalization: A Study of the Areas of Tanganyika
where Detribalized Persons are Living with Recommendations as to
the Administrative and Othcr Measures required to meet the Problems
arising thcrein (Dar Es Salaam, Government Printcr, 1959), p. 38.
XXVIII. Uganda
Ord. No. 2 of 1909, Vagrancy Ordiltance, as amended, secs. 2 aml 3, in
The Laws of the Uganda Protectoratein Force o,i the rst Day of January,
I95I, Rcvised Edition (London, Watcrlow & Sons Ltd., 1951), Vol. II,
Chap. 47, p. 787.
XXIX. Union of South Africa and Republic of South Africa
A. Parliamentary Debates
(1)Ho-use of Assembly.
(1913) Cols. 2270, 2273, 2501, 2515, 2518; Vol. 5, (1925) Cols.
5930-5931; Vol. 26, (1936) Col.2747; Vol. 49, (1944) Col. 6695;
Vol. 60, (1947) Col. 2624; Vol. 76, (1951) Cols. 8356, g809-98n;
Vol. 77, {1952) Cols. 552, 562-563, 1236-1237; Vol. 86, (r954)
Cols. 6456, 6458; Vol. 90, {1956) Cols. 2133-2138, 2r61, 2182;
Vol. 91, (1956) Cols. 4107-4no, 4128; Vol. 99, (1959) Cols.
63-64, 66, 1544-1545, 1548-1549; Vol. IOO, (1959) Cols. 3259-
3268, 3438; Vol. 10I, (1959) Cols. 6215-6216; Vol. ro3, (1960)
Col. 577; Vol. 105, (1960) Col. 7872; Weekly Edition, No. 20
(12 June to 16 June, 1961), Cols. 7994-7995, 7998; Weekly
Edition, No. 1 (19 Jan. to 26 Jan. 1962), Cols. 69-77, 92.
(2) Senate.
Vol. HI, (1956) Cols. 3627-3628, 3631-3632; Vol. IV, (r957)
Cols. 5s33-5535.
B. Annual Reports on South West Africa Submitted to the Council of
the League of Nations
(1) Reports oftheAdministrator of South West Africa.
1919: U.G. 40-1920, p. 4.
1920: U.G. 26-1921, pp. 2-4, r3.
1921: U.G. 32-r922, pp. 5, 12-15.
1922: U G. 21-1923, pp. 2-3, 9-n, 13, 15-16, 18, 20, 47. COUNTER-MEMORIAL OF SOUTH AFRICA 159
1923: U.G. 21-1924, pp. 1, 12-13, 33, 35.
1924: U.G. 33-1925, pp. 4, 20-22, 24, 27-28, 30-31.
(2) Reports of the Government of the Union of South Africa on South
West Africa.
1925: U.G. 26-1926, pp. 31, 94-95, 104, 109-111.
1926: U.G. 22-1927, pp. 22, 33, 36, 56.
1927: U.G. 31-1928, pp. 35, 45, 101-102.
(3) Reports presented by the Government of the Union of South Africa
to the Council of the League of Nations concerning the administration
of South West Africa.
1928: U.G. 22-1929, pp. 2, 7, 54, 68.
1929: U.G. 23-1930, pp. 10-11, 33.
1930: U.G. 21-1931, pp. 16, 35, 51-52, 60-62, 82.
1931: U.G. 17-1932, pp. 12, 53.
1932: U.G. 16-1933, pp. I, 12, 34-35, 52-57, 69, 75-76.
1933: U.G. 27-1934, pp. 2, 9, 17, 2+
1934: U.G. 26-1935, pp. 5, 7, 2+
1935: U.G. 25-1936, pp. 4, 42, 44, 47.
1936: U.G. 31-1937, pp. 3-4, II, 20-21, 38, 43, 50, 96.
1937: U.G. 25-1938, pp. 4, 42, 46-50. 53, SS, 66, 89-90.
1938: U.G. 20-1939, pp. 21-22, 50, SS, 57.
1939: U.G. 30-1940, pp. 8, 23-24. 33, 66-67, 74-75, 103-104, 132,
134-135, 138, 142, 175, 213.
C. Report on South West Africa Presented to the General Assembly of
the United Nations
U.G. 49-1947, Report by the G'overnmentof the Union of South Africa
on the administration of South West Africa for the Year I946, pp. 3-4,
13, 37.
D. Reports of Commissions
U.G. 39-1913, Report of the Commission appointed to cnquire into
Assaults on Women. .
U.G. 34-1914, Report of the Tuberculosis Commission.
U.G. 24-1921, I nterim and Final Reports of the Commission appointed
to enquire into the question of the Future form of Government in the
South West Africa Prote,;torate, p. 4.
U.G. 41-1926, Report of the Rehoboth Commission, pp. ro-12, 40-43,
48, 58-59, 63-64, 79-92, coo-107, 186.
U.G. 22-1932, Report of Native Economie Commission I930-I932,
pp. 105-ro6.
U.G. 16-1935, Report of the Commission on the Economie and Finan
cial Relations between the Union of Soitth A/rica and the Mandated
Territory of South West Africa, pp. 4-6, 46.
U.G. 26---1936, Report of South West Africa Commission, pp. 19, 25,
30, 54, 74.
U.G. 54-1939, Report of the Native Affairs Commission for the Years
I937-I938, pp. 21-22.
U.G. 28-1948, Report of the Native Laws Commissfon I946-48, p.5.
U.G. 53-1951, Report of the Commission on Native Education r949-
r95r, pp. 8, 69, 71, 131-132, 151-152.
U.G. 61-1955, Summary of the Report of the Commission for the Socio-160 SOUTH WEST AFRICA
Economie Developme1it of the Bantii Areas within the Union of
South Afric,i, pp. 43·44·
Report of the Commissio1i for the Socio-Economic Development of the
Banh1 Areas within the Union of South Africa (1955), I7 Vols.,
Vol. 4, Chap. II, p. 26.
E. Report of Select Comniittee
S.C.6-1955, Report of theSelect Committee on the Subject of the Nttrsing
Amendment Bill.
F. Legisla tion
(r) Statutes.
Act No. 1 of 1912, Natal Native Tri'5t and Native Administration
Amendment Act, r9r2, in Statutes of the Union of South Africa
r9r2, pp. 2-5.
Act No. 13 of 1912, South"Africa Defence Act, r9r2 (with amend
ments), in The Union Statiites 19ro-1947, Vol. 5, pp. III-243.
Act No. 22 of 1913, Immigrants Regulation Act, I9I3, in Statutes
of theUnion of South Africa r9r3, pp. 214-251.
Act No. :i7 of 1913, Natives Land Act, r9r3, in Statutes of the
Unimi of Souih A/rica 19r3, pp. 436-475.
Act No. 49 of 1919, Treaty of Peace and South West Africa Mandate
Act,r919, in The Lawsof South West Africa r9r5-1922, pp. 10-12.
Act No. :i3 of 1920, Native A.flairs Act, r920, in Statutes of the
Union o/ South Africa 1920, pp. 84-92.
Act No. ~:4of 1922, South-West Africa Atfairs Act, 1922, in 1'/w
Laws o/ South West Africa r915-r922, pp. 20-25.
Act No. 21 of 1923, Natives (Urbaii Areas) Act, 1923, in Statz,tes
of the [.hiimi of South Africa r923, pp. 140-197.
Act No. z7 of 1923, Public Service and Pensions Act, r923, in
Stattdes of the U11ionof South Africa r923, pp. 256-368.
Act No. 30 of 1923, Higher Education Act, r923, in Statutes of the
Union of South Africa r923, pp. 380-392.
Act No. 30 of :r924, South West Africa Naturalization of Aliens
Act, 1924, in T/ie.Laws of South West Africa r924, pp. 82-85.
Act No. 42 of 1925, South-West Africa Constitution Act, 1925, in
Statute:: of the Union of South Africa r925, pp. 734-801; in The
Laws cf South West Africa r925, pp. 60-92; and in Laws of
South West Africa, Vol. -II (1923-1927), pp. 2-26.
Act No. r8 of I926, British Nationality in the Union and Natur
alization and Status of A.tiens Actr926, in Statutes of the Unio1i
of South Africa I926, pp. 136-168.
Act Ko. 38 of 1927, Native Administration Act, I927, in Stati,tes
of the Union of South A/rica I927, Vol. I,pp. 3r4-35:r.
Act No. 40 of 1927, Union Nationality and Flags Act, rg27, in
Statutes of the Union of South Africa I927-28, Vol. Il, pp. 2-8.
Act No. 13 of 1928, Medical, Dental and Pharmacy Act, r928, in
Statute.; of the Union of South Africa r927-28, Vol. II, pp. 180-
293. ·
Act No. 18 of 1936, Native Trnst and Land Act, r936, in Statutes
of the Union of South Africa r936, pp. 90-199; and in The Union
Statutesr9ro-1947, Vol. 10,pp. 187-293.
Act No. 1 of 1937, A.liens Act, I937, in The Laws of South West
Africa r937, Vol. XVI, pp. 40-51. COUNTER-MEMORIAL OF SOUTH AFRICA 161
Act No. 45 of 1944, Nursing Act, I944, in Statutes of the Union of
South A/rica I944, pp. rno6-1025.
Act No. 25 of 1945, Natives (UrbanAreas) Consolidation Act, 1945,
in Statutes of the Union of South A/rica I945, pp. 108-207.
Act No. 35 of 1948, Atomic Energy Act, I948, in The Laws of
South West Africa I948, Vol. XXVll, pp. 18-51.
Act No. 15 of 1949, Rhodes University (Private) Act, I949, in
Statutes of the Union of South Africa r949, pp. 102-135.
Act No. 23 of 1949, South-West A/rica A(fairs Amendment Act,
r949, in Statutes of ihe Union of South Africa r949, pp. 178-197;
and in The Laws of South West Africa I949, Vol. XXVIII,
pp. 170-186.
Act No. 44 of 1949, South A/rican Citizenship Act, r949, in The
Laws of South West Africa I949, Vol. XXVIII, pp. 204-239.
Act No. 55 of 1951, South West Africa A(fairs Amendment Act,
I95I, in Statutes of the Union of South Africar95I, pp. 404-408.
Act No. 68 of 1951, Bantu Authorities Act, I95I, in Statutes of the
Union of South Africa r95I, pp. n52-n79.
Act No. 67 of 1952, Natives (Abolition of Passes andCo-ordinatio;i
of Documents) Act, z952, in Statutes of the Union of South Africa
I952, pp. I012-IOJI.
Act No. 47 of 1953, Bantu Education Act, I953, in Statutes of
the Union of South Africa r953, pp. 258-277.
Act No. 56 of 1954, South-West Africa Native Afjairs Admin
istration Act, I954, in Statutes of the Union of South A/rica I954,
pp. 558-565.
Act No. 34 of 1955, Dcparture /rom the Unio11 Regulation Act,
I955, in Statutes of the Union of South Africa ICJ55,Part I
(Nos. 1-55), pp. 238-245.
Act No. 42 of 1956, Native Administration Amendment Act, I956,
inStatutes of the Union of South Africa I956, Part I (Nos. 1-47)
pp. 852-857.
Act No. 54 of 1956, Water Act, I956, in Statutes of the Union of
South Africa I956, Part 'II (Nos. 48-73), pp. 1047-1305.
Act No. 57 of 1956, Pneumoconiosis Act, I956, in Statutes of the
Union of South Africa I956, Part II, pp. r369-1509.
Act No. 54 of 1957, Public Se-roiceAct, I957, in Statutes of the
Union of South Afrii:a I957, Part II, pp. 794-859.
Act No. 69 of 1957, Nursing Act, z957, in Statutes of the Union
of South Africa I957, Part II (Nos. 45-83), pp. 1086-u33.
Act No. 41 of 1958, Native Trust and Land Amendment Act, I958,
in The Laws of South West Africa I958, Vol. XXXVII, pp. 95-99.
Act No. 8 of1959, Prisons Act, I959, inStatutes of the Union of
South Africa I959, Part I (Nos. I-60), pp. 16-107.
Act No. 45 of 1959, Extension of University Education Act, I959,
in Statutes of the Union of South Africa I959, Part I (Nos. 1-60),
pp. 484-513. .
Act No. 46 of 1959. Promotion of Bantit Sdf-Govemment Act,
I959, in Stattttes of the Union of South Africa I959, Part I
(Nos. 1-60), pp. 5r2-53r.
Act No. 55 of 1959, Native Afjairs Act, I959, in The Laws of South
West A/rica I959, Vol. XXXVIII, pp. 84-gG.16z SOUTH WEST AFRICA
Act No. 64 of 1961, South African Citizenshi,P Amendment Act,
I96I, in The Laws of South West Africa I96I, Vol. XL, pp. 508-
533.
Act No. 79 of 1961, Urban Bantu Councils Act, r96I, in Statutes
of the R,:public of South Africa I96r, pp. 1266-1278.
Act No. 64 of 1962, P.neumoconiost'sCompensaJion Act, I962, in
Statutes ofthe Republic of South Africa I962, Part II (Nos. 59-63).
pp. 1023-n83.
Act No. 48 of 1963, Trcmskei Constitution Act, I963, in The
Republù: of South A/rica Govermnent Gazette Extraordinary,
Vol. VIII, No. 516 (30 May 1963), pp. 2-49.
Act No. 76 of 1963, Bantu La,vs Amendment Act, I963, in The
Republic of South Africa Government Gazette Extraordinary,
Vol. IX, No. 550 (5 July 1963), pp. 2-29.
(2)Proclamations.
r,..r1.of 1921, Jndcmnity and withdrawal of Martial Law, in The
Laws of South West Africa I9r5-I922, pp. 44-46.
No. 12 of 1922, Caprivi ZiPfel Administration in The Laws of
South West Africa r9r5-r922, pp. 52-53.
No. 23 of 1922, Caprivi Zipjel: Administration as part of Bechuana
land P,otectorate, in Tite Laws of South West Africa r915-I922,
pp. 54-56.
No. 145 of 1922, IVa/,vis Bay Administration, in The Laws of
South West Africa r9r5-r922, pp. 56-57.
No. 310 of r927, Land Settlement Consolidation and Amendment
Proclamation, I927, in The Laws of South West Africa r927,
pp. 22-83.
No. 196 of 1929, in The Laws of South West Africa -1929,pp. 126-
128.
N"o.205 of 1932, Land Settlement Law (South West Africa) Furtlier
Amendment Proclamation, I932, in The Laws of South West
Africa 1932, pp. 22-33.
No. 150 of 1934, in The Union qf South Africa Government Gazette,
Vol. XCVII, No. 2216 (17 Aug. 1934), pp. 383-386.
No. 77 of 1936, Land Settlement Law (South West Africa) Further
Amendment Proclamation, r936, in The Laws of South West
Africa 1936, Vol. XV, pp. 4~II.
No. sr of 1937, South West Africa Afjairs Proclamation, I9J7, in
The Laws of South West Africa I937, Vol. XVI, pp. 60-67.
No. 147 of 1939, Eastern Caprivi Zipiel Administration Procla
mation, r939, in The Laws ofSouth West AfricaI939, Vol. XVIII,
pp. 28-30.
No. 234 of 1939, in The Laws of South West Africa I939, Vol.
XVIII. pp. 62-66.
No. 39 of 1947, Land Settlement Law (South West Africa) Ame•id
ment Proclamation, I947, in The Laws of South West Ajrica I947,
Vol. XXVI, p. 134. ·
No. 235 of 1951, Abrogation of the Powers of Legislation granted
to the Governor-General in terms of the Treaty of Peace and
South-West Africa Mandate Act, I9I9, in The Laws of South
West Africa I95I, Vol. XXX, pp. ro-r3.
No. 267 of 1954, Deportation of undesirable persans /rom South CO!JNTER-MEMORIAL OF SOUTH AFRICA
West A/rica, in The Laws of South West A/rica I954, Vol.
XXXII, pp. 66-71.
No. 287 of 1956, Excision of certain land /rom Native Areas: South
West A/rica, in TheLaws ofSouth West A/rica I956, Vol. XXXV,
p. 21I.
No. n9 of 1958, South West A/rica Native A[jairs Administration
Proclamation, I958, in The Laws of South West Africa I958,
Vol. XXXVII, pp. 133-141.
No. 133 of 1961, Amendment of the Extra-Territorial and Northern
Natives Control Proclamation, I935, in The Laws of South
West A/rica I96I, Vol. XL, pp. 546-553.
No. 148 of 1962, Deportation of undesirable persans /rom South
West A/rica, in Govermnent Gazette (S.A.), Vol. IV, No. 283
(29 June 1962), pp. 1-3.
(3) Govermnent Notices.
No. 1977 of 1939, in The Laws of South West A/rica I939, Vol.
XVIII, p. 138.
No. 841 of 1946, in The Union of South A/rica Government Gazette,
Vol. CXLIV, No. 3634 (18 Apr. 1946), p. 123.
No. 636 of 1958, in Government Gazette (S.A.), Vol. CXCIV,
No. 6123 (3 Oct. 1958), p. 22.
No. 1828 of 1958, in Govcrnment Gazette (S.A.), Vol. CXCIV,
No. 6148 (5 Dec. 1958), p. 26.
No. 1916 of 1959, in Tite Laws of South West Africa r959, Vol.
XXXVIII, pp. 234-237.
No. 458 of 1960, in Government Gazette (S.A.), Vol. CC, No. 6395
(1 Apr. 1960), p. 48.
No. 66 of 1961, in GovernmentGazette (S.A.), Vol.1, No. 13 (16 June
1961)' p.19.
G. Transvaal Province
T.P. 1-1922, Report of the Local Government Commission (1921),
pp. 48-49, 52, 96.
H. Ethnological Publications of the DepartmentofBantu Administration
and Developmcnt
(1)Kêihler,O., A Study of G-obabisDistrict (South West Africa), No. 42
(Pretoria, Government Printer, 1959), p. 70.
(2) Kahler, O., A Study of Groot/ontein District (South West A/rica),
No. 45 (Pretoria, Government Printer, 1959), pp. 19-20.
(3) van Warmelo, N. J., Notes on the Kaokoveld (South West A/rica)
and its People, No. 26 (Pretoria, Govemment Printer, 1951),
pp. 9-12.
I. Other
(1) Published.
(i) U.G. 39-1919, Trmty of Peace between the Allied and Associ
ated Powers and Germany, Arts. 120, 257, pp. 41, 77.
(ii) de Villiers, F.J..Bantu Education: Where the Money cames
/rom-and where it goes [An address on the Financing of
Bantu Education delivered at the Annual Conncil Meeting
of the S.A. Institute of Race Relations at Cape Town on the
18th January, 1961] (Pretoria, Information Service of the SOUTH WEST AFRICA
Department of Bantu Administration and Development,
1961), p. IO.
(iii) First Results of the Population Census, 6 September I960,
Part 1--Union of South Africa, Part II-Territory of South
West A/rica, Geographical Distribution of the Population,
[Bureau of Census and Statistics, Special Report 1~0. 234]
(Pretoria, The Governmcnt Printer), pp. iv, vii, viii, 35-36.
(iv) Live and let Live, Fact Paper gr (Apr. r96r) [Department of
Information], pp. 8-14.
(v) 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
Europcan Affairs in·Southern Africa on the 17th September
1956 (Pretoria, The Government Printer, 1957), pp. 7-8, 19.
(vi) Memorandum on the Country known as German South-West
Africa (Pretoria, The Government Printing and Stationery
Office, 1915), p. 58.
(vii) Official Year Book of the Union and of Basutoland, Bechuana
land Protectorate and Swaziland, No. 3, 1919 (Pretoria, The
Governmcnt Printing and Stationery Office, 1920), pp. 876,
883, 903-905.
(viii) Official Year Book of the Union and of Basutoland, Beclmana
land Protectorate and Swaziland, No. 22, 1941 (Pretoria, The
Govcrnmcnt Printer, 1941), p. n93.
(ix) The Progress of the Bantu Peoples towards Nationhood (Dc
partment of Information), pp. 6, 52.
(x) Rogers, H., l1lative Administration in the Union of South
Africa. Second Edition, rev. hy P. A. Linington (Pretoria,
Governmcnt Printer, 1949), pp. 2-3, roo.
(2) Unpublished.
(i) Memorandmn on the Natives (Abolition of Passes) Act, I952,
pp. l-2.
(ii) Reporl on the Administration of the Eastern Caprivi ZiPfel,
I940, "by L. Trollope, Magistrate, pp. IO-II.
XXX. South West Africa
A. Reports of Commissions
(1) Published.
Report of the Long Term Agricultural Policy Commission (Wind
hoek, Verenigde Pers, 1949), pp. 8, 32-33; tables VI and VllI.
(2) Unpublished.
Report of Native Reserves Commission (S.W.A.), 8th June 1921,
pp. 14-17, 20-23 and Anncx B; and Mimttes of Meeting of the
Native ReservesCommission for South West A/rica held at Wind
hoek on the 2ISt June, I92r, p. 5.
Report o/ the Edttcation Commission I958, pp. 12, 19, 52, rn9,
123-127, 133.
Report of the Commission of Inquiry into Non-European Education
in South West Africa (1958,) Part I, Native Education, pp. 36, COUNTER-MEMORIAL OF SOUTH AFRICA 165
40-41, 79-80, 85-86, 99, 109, n1-n3, n5-n6, n8-120, 123,
132-133, 138-139, 144; Part II, ColouredEducation, pp. 38,42, 81.
B. Legislation
(1) Ordinances.
No. 13 of 1935, Licences (Consolidation) Ordinance, r935, in The
Laws o/ South West A/rica r935, Vol.XIV, pp. 692-741.
No. 13 of 1944, Territorial Development and Reserve Ftmd Ordi
nance, I944, in The Laws of South West Africa I944, Vol. XXIII,
pp. 806-Srr.
No. 6 of 1951, Land Settlement Amendment Ordinance, I95I, in
The Laws of South West A/rica I95I, Vol. XXX, p. 196.
No. 34 of 1952, Factories, Machinery and Building Work Ordi
nance, I952, in The Laws of South West Africa I952, Vol. XXXI,
pp. 404-464-
No. 35 of 1952, Wage and Industrial Conciliation Ordinance, r952,
in The Laws of South West Afn·ca r952, Vol. XXXI, pp. 464-575.
No. 48 of 1952, Societies of Employers of Contracted Natives Ordi
nance, r952,in The Laws of South West Africa r952,Vol. XXXI,
pp. 794-805.
No. 21 of 1953, Finance Ordinance, r953, in The Laws of South
West Africa r953, Vol. XXXII, pp. 400-403.
No. n of 1954, General Laws Amendment Ordinance, r954, in The
Laws of South West Africa r954, Vol. XXXIII, pp. 654-667.
No. 25 of 1954, Natives {Urba1i Areas) Proclamation, r95r,
Further Amendmenl Ordinance, I954, in The Laws of South
West Africa r954, Vol. XXXII[, pp. 736-753.
No. 26 of 1954, Mines, Works ·and Minerais Ordinance r954, in
The Laws of South West Africa I954, Vol. XXXIII, Part II,
pp. 753-853.
No. 3 of 1955, Extra-territorial and Northern Natives Control
Amendment Ordinance, r955, in The Laws of South West Africa
r955, Vol. XXXIV, pp. 526-529.
No. 4 of 1955, South West Africa Native Affairs Administration
Ordinance, I955, in The Laws of South West Africa r955, Vol.
XXXIV, pp. 528-539.
No. 4 of 1956, Native Reserves Ordinance, r956, in The Laws of
South West Africa r956, Vol. XXXV, pp. 402-405.
No. 26 of 1958, Native Reserves Ordinance, r958, in The Laws of
South West Africa r958, Vol. XXXVII, pp. 438-441.
No. 19 of 1960, Education Further Amendment Ordinance, r960,
in The Laws of South West Africa r960, Vol. XXXIX, pp. 670-
687.
No. 24 of 1960, Native Administration Amendment Ordinance,
r960, in The Laws of South West Africa r960, Vol. XXXIX,
pp. 692-695.
No. 33 of 1961, Native Housing Levy Ordinance, r96I, in The
Laws ofSouth West Africa I96r, Vol. XL, Part II, pp. 1308-1317.
No. 27 of 1962, Education Ordinance, r962, in Official Gazette
Extraordinary of South West Africa, No. 2413 (4 July 1962),
pp. 878-919.
No. 13 of 1963, Mimicipal Ordinance, r963, in Otfidal Gazette166 SOUTH WEST AFRICA
Extraordinary of South West Africa, No. 2489 (29 June, 1963),
pp. 837-956.
No. 14 of r963, Village Management Boards Ordinance, I963, in
Official Gazette Extraordinary of South West Africa, No. 2490
(29 June 1963), pp. 957-985.
(2) Proclamations.
Proclamatfon of 28th October, I9I5, by Major-General The Honour
ableJan Christian Smuts, K.C., His Britannic Majesty's Minister
of Defence for the Union, entitled Appointment of Administrator,
in The Laws of South West Africa I9I5-I922, pp. 30-31.
No. 13 of :r920, Crown Land Disposal Proclamation, I920, in The
Laws of South West Africa r9r5-r922, pp. 216-219.
No. 14 of 1920, Land Settlement Proclamation, r920, in The Laws
of South West Africa I9r5-I922, pp. 219-223.
No. 25 of 1920, Vagrancy Proclamation, r920, in The Laws of
So1dh West Africa r9r5-r922, pp. 280-286.
No. 34 of 1920, Master and Servants Proclamation, r920, in The
Laws of South West Africa r9r5-r922, pp. 336-366.
No. 40 of 1920, Definition of Magisterial Districts, in The Laws of
South West Africa r9r5-r922, pp. 384-415.
No. 50 of 1920, Undesirables Removal Proclamation, I920, in The
Laws of South West Africa r9I5-I922, pp. 424-426.
No. 53 ofl920, Land Settlement Proclamations Further Amendment
Proclamation, r920, in The Laws of South West Africa r9I5-r922,
pp. 428-429.
No. 1 of 1921, Advisory Council Proclamation, I92I, in The Laws
of South West Africa I9r5-r922, pp. 493-495.
No. 51 of 1921, Advisory Councü Amendment Proclamation, r92r,
in The Laws of South West Africa r9r5-r922, p. 626.
No. 55 of 1921, Education Proclamation, I92r, in The Laws of
South West Africa r9r5-r922, pp. 632-683.
No. II of 1922, Natfre Administration Proclamation, I922, in The
Laws of South West Africa r9r5-r922, pp. 749-754.
No. 30 of 1922, Walvis Bay Administration Proclamation, r922, in
The Laws of South West Africa r9r5-r922, pp. 860-862.
No. 33 of 1922. Curfew Regulations Proclamation, r922, in The
Laws of South West Africa r9r5-r922, pp. 863-865.
No. 2 of 1923, Burgher Force Proclamation, I923, in Official
GazetteofSouth WestAfrica, No. 101 (15 Jan. 1923), pp. 1u9-n23.
No. 19 oJ'1923, Master and Servants Proclamation Amendment
Proclamation, r923, in The Laws of South West Africa I92J,
pp. 40-41.
No. 28 of 1923, Rehoboth Community: Confirmation of Agreement,
in Laws of South West Africa, Vol. II (1923-1927), pp. 144-153;
and in The Laws of South West Africa r923, pp. 52-62.
No. 37 of 1923, Burgher Force Amendment Proclamation, I923, in
Official Gazette of South West Africa, No. 122 (1 Dec. 1923),
pp. 1441-1442.
No. 9 of 1924, Native Reserves Trust Funds Administration
Proclamation, r924, in The Laws of South West A/rica r924,
pp. 40-42; and in Laws of South We.~t Africa, Vol. II (1923-
1927). pp. 179-181. COUNTER-MEMORIAL OF SOUTH AFRICA
No. 31 of 1924, Rehoboth Afjairs Proclamation, r924, in The Laws
of South West Africa, Vol. II (1923-1927), pp. 187-19r.
No. 34 of 1924, Natives (Urban Areas) Proclamation, r924, in
The Laws of South West Africa r924, pp. 178-190.
No. 35 of 1924, Burgher Force Amendment Proclamation, r924,
in The Laws of SouJh West A/rica r924, p. r9r.
No. II of 1925, Jndemnity Proclamation, r925, in The Laws of
South West Africa 1925, pp. 45-47.
No. 16 of 1926, Education Proclamation, r926, in The Laws of
South West Africa, Vol. II (1923-1927), pp. 226-326.
No. II of 1927, Native Administration Amendment Proclamation,
r927, in The Laws of South West Africa 1927, pp. IIO-II2.
No. 19 of 1927, Burgher Force Proclamation, 1927, in The Laws of
South West Africa 1927, pp. 136-176.
No. 32 of 1927, Vagrancy Proclamation Amendment Proclamation,
1927, in The Laws of South West Africa 1927, pp. 244-246.
No. 9 of 1928, Rehobath Gebiet Aff airs Proclamation, 1928, in The
Laws of South West Africa r928, pp. 38-53.
No. 15 of 1928, Nativii Administration Proclamation, I928, in The
Laws of South West Africa r928, pp. 58-85.
No. 19 of 1928, Cwfew Regulations Proclamation Amendment
Proclamation, 1928, in The Laws of South· West Africa 1928,
pp. 88-91. •
No. 26 of 1928, Prohibited Areas Proclamation, I928, in The Laws
ofSouth West Africa r928, pp. ro4-n7.
No. 26 of 1929, Caprivi Zipfel Administration Proclamation, 1929,
inThe Laws of South West A/rica r929, pp. 256-258.
No. 27 of 1929, Ovamboland A{fairs Proclamation, 1929, in The
Laws of South West Africa r929, pp. 258-263.
No. 27 of 1930, Capriiii Zipjel Atfairs Proclamation, 1930, in The
Laws of South West Africa I930, pp. 144-147.
No. 4 of 1932, Natives (Urban Areas) Amendment Proclamation,
1932, in The Laws of South West Africa I9J2, pp. 54-73.
No. 17 of 1933, Nativi: Administration Amendment Proclamation,
1933, in The Laws of South West Africa r933, p. r28.
No. 24 of 1935, Nativ,i Administration Amendment Proclamation,
1935, in The Laws of South West Africa r935, Vol. XIV, p. 140.
No. 29 of 1935, Extra-territorial and Northern Natives Contrat
Proclamation, 1935, in The Laws of South West Africa r935,
Vol. XIV, pp. 148-159.
No. 30 of 1935, Criminal Procedure and Evidence Proclamation,
1935, in The Laws of South West Africa 1935, Vol. XIV, pp. 158-
425.
No. 36 of 1936, RehobothGebiet (Extension of Laws) Proclcimation,
I936, in The Laws of South West Africa 1936, Vol. XV, pp. 102-
104.
No. 32 of 1937, Okavango Native Territory Afjairs Proclamation,
I9J7, in The Laws of South West A frica r937, Vol. XVI, pp. 306-
No.1322 of 1938, Master and Servants Amendment Proclamation,
r938, in The Laws of South West Africa r938, Vol. XVII, p. 140.
No. 7 of 1939, in The Laws of South West Africa r939, Vol. XVIII,
pp. 150-153.168 SOUTH WEST AFRICA
No. 17 of 1939, Diamond Industry Protection Proclamation, r939,
in The Laws of South West Africa r939, Vol. XVIII, pp. 168-199.
No. 23 of i:939, Natives Trust Fimds Proclamation, r939, in The
Laws of South West Africa r939, Vol. XVIII, pp. 222-233.
No. 37 of 1940, Extra-territorial and Northern Natives Control
Amendmmt Proclamation, r940, in The Laws of South West
Africa r940, Vol. XIX, pp. 286-293.
No. 38 of 1949, Extra-territorial and Northern Natives Contrat
Amendment Proclamation, r949, in The Laws of South West
Africa r949, Vol. XXVIII, p. 760.
No. 59 of 1949, Extra-territorial and Northern Natives Control
Further .Amendment Proclamation, r949, in The Laws of South
West Aj,ica I949, Vol. XXVIII, p. 782.
No. 33 of 1951, Extra-territorial and Northern Natives Contra!
Amendment Proclamation, r95r, in The Laws of Soutl~ West
A/rica I95I, Vol. XXX, p. 64.
No. 56 of 1951, Natives (Urban Areas) Proclamation, r95r, in
The Laws of South West Africa r95r, Vol. XXX, pp. 90-171.
No. 43 of 1958, Redefinition of Magisterial Districts Proclamation
Amendment Proclamation, r958, in The Laws of South West
Ajrica I958, Vol. XXXVII, pp. 203-213.
(3) Governmeni:Notices.
No. 16 of 1916, in Official Gazette of the Protectorate of South West
Africa in Military Occupation of the Union Forces, No. 7
{15 Mar. 1916), p. 3.
No. 122 of 1923, in The Laws of South West Africa r923, pp. 84-88.
No. 27 of 1924, in Official Gazette of South West Africa, No. 131
(1 Apr. :[924), p. 1584-
No. 44 of 1924, in Official Gazette of South West Africa, No. r3r
(1 Apr. I924), p. 1591.
No. 68 of 1924, in The Laws of South West Africa r924, pp. 57-63.
No. 108 of r925, in The Laws of South West Africa r925, p. 92.
No. 109 of 1925, inThe Laws of South West Africa r925, pp. 92-93.
No. 21 of 1926, in Official Gazette of South West Africa, No. 185
(r Feb. r926), pp. 2413-2414,
No. 8 of HJ28, in The Laws of South West Africa r928, p. 674.
No. 90 of r929, in The Laws of South West Africa r929, p. 438.
No. II9 of 1929, in The Laws of South West Africa r929, p. 440.
No. 60 of 1930, inhe Laws of South West Africa r930, pp. 418-425.
No. 162 of 1930, in The Laws of South West Africa r930, p. 442.
No. 237 oi 1930, in The Laws of South West Africa r930, p. 458.
No. 238 oi 1930, in The Laws of South West Africa r930, p. 458.
No. 239of 1930,in TheLaws of South WestAfrica r930, pp. 458-467.
No. 19 of 1931, in Deutsche UebersetZHng des Amtsblattes fiir
Südwestafrika, Nr. 402 (2. Februar 1931), p. 3873.
No. 170 o:f1933, in Official Gazette of South West Africa, No. 536
(1 Nov. 1933), p. 8677.
No. 154 of 1934, in The Laws of South West Africa r934, Vol. XIII,
p. 252. .
No. 61 of 1935, in The Laws of South West Africa r935, Vol XIV,
p. 958. COUNTER·MEMORIAL OF SOUTH AFRICA I69
No. 87 of 1935, in The Laws of South West Africa I935, Vol. XIV.
p. IOI2.
No. 163 of 1935, in Th~ Laws of South West Africa I935, Vol. XIV,
p. 1030.
No. 173 of I935, in The Laws of South West Africa I935, Vol. XIV,
p. 1034.
No. 127 of 1936, in The Laws of South West Africa I936, Vol. XV,
p. 288.
No. 156 of 1936, in The Laws of South West Africa r936, Vol. XV,
p. 296.
No. 182 of 1937, in The Laws of South West Africa r937, Vol. XVI.
p. 538.
No. 46 of 1938, in The Laws of South West Africa r938, Vol. XVII.
p. 260.
No. 62 of 1938, in The Laws of South West Africa z938, Vol. XVII.
p. 262.
No. 130 of 1938, fo TheLaws ofSouth West Africa I9J8, Vol. XVII,
p. 344.
No. 198 of 1938, in The Laws ofSouth West Africa r938, Vol. XVII,
p. 392.
No. 92 of 1939, in The Laws ofSouth West Africa I9J9, Vol. XVIII,
p. 570.
No. ll2 of 1940, in The Laws of Sottth West Africaz940, Vol. XIX,
p. 488.
No. 29 of 1941, in The Laws of South West Africa r94I, Vol. XX,
pp. 374-376.
No. 42 of 1941, in The Laws of South West Africa r94I, Vol. XX,
p. 378.
No. 2II of 1942, in The Laws of Sottth West Africar942, Vol. XXI.
p. 560.
No. 374 of 1947, in The Laws of South West Africa r947, Vol.
XXVI, pp. 286-291.
No. 156 of 1948, in The Laws of South West Africa r94B, Vol.
XXVII, p. 240.
No. 179 of I948, in The Laws of South West Africa r948, Vol.
XXVU, p. 242.
No. 323 of 1948, in The Laws of South West Africa I94-8,Vol.
XXVII, pp. 254-266.
No. 25 of 1949, in Official Gazette of South West Africa, No. 1406
(1 Feb. 1949), pp. 2008-2013.
No. 215 of 1950, in The Laws of South West Africa r950, Vol.
XXIX, p. 650.
No. 122 of 1951, in The Laws of South West Africa r95r, Vol.
XXX, p. 288.
No. 485 of 1951, in The Laws of South West A/rica r95r, Vol.
XXX, p. 394-
No. r2r of 1952, in The Laws of South West Africa I952, Vol.
XXXI, pp. 834-837.
No. r93 of 1952, in The Laws of South West Africa r952, Vol.
XXXI, pp. 850-852.
No. 325 of 1952, in Official Gazette of South West Africa, No. 1726
(r Nov. r952), pp. 3568-3573.170 SOUTH WEST AFRICA
No. 201 of 1953, in The Laws of South West Africa I953, Vol.
XXXII, p. 537.
No. 257 of 1953, in The Laws of South West Africa I953, Vol.
xxxrr, p. 599.
No. 335 of 1953, in The Laws of South West Ajrica I953, Vol.
XXXII, pp. 619-621.
No. 262 of 1954, in The Laws of South West Africa I954, Vol.
XXXIII, p. 1247.
No. 65 of 1955, in The Laws of South West Africa I955, Vol.
XXXIV, pp. 750-789.
No. 81 of 1955, in The Laws of South West Ajrica I955, Vol.
XXXIV, pp. 796-798.
No. 33 of 1956, in The Laws of South West Africa I956, Vol.
XXV, pp. 499-723.
No. 243 of 1960, in Official Gazette Extraordinary of South West
Africa,?fo. 2287 (14 Dec. 1960), pp. u78-1227.
No. 8 of 1961, in The Laws of South West Africa I96r, Vol. XL,
pp. 1332-1377.
No. 16 of 1962, in Official Gazette Extraordinary of South West
Africa, No. 2369 (1 Feb. 1962), pp. 54-103. ·
No. u6 oi 1962, in Official Gazette Extraordinary of South \Vest
Africa, No. 2413 (4July 1962), pp. 878-919.
C. Population Censuses
(r) Report on The Census of the Population taken on the 3rd May,
I92r, and The Census of Agriculture, 30th April I92I (Pretoria,
Government Printing and Stationery Office, 1923), p. vi.
(2) South Wes! Africa Popit!ation Census, 8th May, I95f, p. 8.
D. Othcr
(r) Published.
(i) The Native Tribes of South West Ajrica (Cape Town, Cape
Times Ltd., 1928), pp. 1-25, 33-36, 39-44, 48-49, 51, 55,
57-59, 61-72, 74-77, 82-84, 94, 98-104, I09-II8, 142-145,
(ii) Protectorateof South-West Africa, Native Afjairs; Memorandum
conceming (a) the Laws affecting the Native population in the
Protectorate of South-West Africa; (b) the practice followed by
thepresent Administration in carrying out the provisioas of these
Laws; and (c) the Native policy generally of the Protectoraie
Administration (Pretoria, Government Printing and Stationery
Office, 1916), pp. 6-7.
(iii) White Paper on the Activities of the Difjerent Branches of the
Administration of South West Africa for the Book Year I96r-62,
p. 13.
(2) Unpublisked.
(i) Hahn, C. H. L., Native Policy in South West Africa: System
of Indirect Rule in Ovamboland and the Kaokovcld (memo
randum dated 27 Sep. 1945), p. 9·
(ii) Lord Hailey, A Survey of Native Afjairs in South West Africa
(1946), pp. 1, 3-5, 23, 25, 28-29, 3r, 33·35, 45, 48, 50-54,rr9.
(iii)Wagner, G., Ethnie Survey of South West Africa, Part I,
District of Windhoek, p. 104. COUNTER-M.EMORIAL OF SOUTH AFRICA 171
XXXI. United Kingdom
A. Legislation
(1) Statutes.
S Geo. 4. C. 83, The Vagrancy Act, I8a4, as amended, secs. 3, 4
and 6, in The Complete Statutes of England, classified and
annotated in continuation of Halsbury's Laws of England (London,
Butterworth & Co. Ltd.), Vol. XII {1930), pp. 9r3-9r6, 9r8.
9 Edw. 7. C. 9, The South Africa Act, I909, sec. r47, in Statutes
of the Union of South Africa I9IO and I9II, p. 76.
25 & 26 Geo. 5, C. 20, Vagrancy Act, I935, sec. r (3), in The
Statutes, Third Revised Edition (London, His Majesty's Station·
ery Office), Vol. XXII (1950), pp. 33-34.
II & 12 Geo. 6, C. 29, National Assistance Act, I948, sec. 62 (3)
and Seventh Schedule (Enactments Repealed), in The Public
General Acts and theChi,rch Assembly Measures of I948 (London,
Sir Norman Gibb Scorgie, Controller of His Illajesty's Stationery
Office, etc.), Vol1, pp. 282, 304-
rr & 12 Geo. 6, C. 5S, Criminal Justice Act, I948, sec. 1 (2), in
The Statu/es, Third Revised Edition, Vol. XXXII (1950), p. 272.
(2) Orders in Council.
Basutoland:
Order in Coimcil assenting to the Act of the Legislature of the Cape
of Good Hope, for the Disannexation therefrom of Basutoland,
and providing that Basutoland shall came imder the Direct Au
thority of Her Majesty, and also providing for its future Ad
ministration, At the Court at Osborne House, Isle of Wight, the
2nd day of February, I884, in The Statutory Rules G Orders
and Statittory Instruments Revt'sedto DecemberJr, I948 (London,
His Majesty's Stationcry Office, 1950), Vol. 1II, pp. 79-80.
Bechuanaland:
The Bechuanaland Protectorate (Constitution) Ortler in Council,
I960, Statutory Instruments I960, No. 2416 (London, Hcr
Majesty's Stationery Office, 196r), pp. 4, 9-10, 21-24.
Cameroons:
British Order in Council providing for the Administration of thè
Mandated Territory of the British Cameroons.-London, June 26,
I923, in British and Foreign State Papers I92J, Part I (London,
His Majesty's Stationery Office, 1926), Vol. CXVII, pp. 60-63.
Federation of Rhodesia and N yasaland:
The Federa.tion of Rhodesia and Nyasaland (Constitution) Order
in Coimcit, I953, Statutory Instruments I953, No. n99 (London,
Her Majesty's Stationery Office, r953).
Gambia:
The Cambia (Constitution) Order in Coxmcil, I960, Statiltory
lnslrttnients I960,No. 701 lLondon, Her Majesty's Stationery
Office, r960), pp. 1-4, 8-9.
Gold Coast:
Order in Council providing for the Establishment of the Legislative
Council of the Gold Coast Colony.-London, April 8, I925, in172 SOUTH WEST AFRICA
British a:nd Foreign State Papers I925, Part I (London, His
Majesty's Stationery Office, 1929), Vol. CXXI, pp. 208-230.
Kenya:
British Order in Council providing for the Annexation of Territories
forming :Partof the East Africa Protectorate and their Adminis
tration as the Colony of Kenya.-London, June II, I920, in
Britishand Foreign State Papers I920 (London, His Majesty's
Stationery Office, r923). Vol. CXIII, pp. 74-76.
The Kenya (Constitution) (Amendmwt No. 2) Order in Council,
I960, Statutory Instruments I960, No. 2201 (London, Her
Majesty's Stationcry Office, 1960), pp. 1-25.
The Kenya Order in Council, I963, Kenya Gazette Supplement
No. 30 (Extraordinary Issue) [18 Apr. 1963] (Statutory Instrn
ments I963, No. 791), pp. 22-24, 59-60, 222-230.
Nigeria:
British Order in Council providing for the creation and constitution
of the Legislative Council of Nigeria.-London, November 2I,
I922, in British and Foreign State Papers I922 (London,
His Majesty's Stationery Office, 1925), Vol. CXVI, pp. 249-259.
Order in Council providing for the administration of the Nigeria
Protectorateand Cameroons nnder British Mandate.-London,
A11gust 2, I946, in British and Foreign State Papers I946
(London, Her Majesty's Stationery Office, 1953), Vol. 146,
pp. 298-303, at p. 301.
The Nigeria (Constitution) Order in Cottncil, I960, Statutory
Instrum,mts I960,_No. 1652 (London, Her Majesty's Stationery
Office, 1963 [Repnnt]). Schedule 2,sec. 36,p. 30, Schedules 3-5,
pp. 83-179.
N orthern Rhodesia:
British Otder in Cotmcit for regulaHng the Admùiistration of
Northern Rhodesia.-London, May 4, I9II, in British and
Foreign State Papers I9I3 (London, His Majesty's Station
ery Office, 1916}, Vol. CVI, pp. 463-476.
British Order in Council making further provision /or the Consti
tution oj the Legislative Council for Northern Rhodesia.-London,
February 20, I924, in British and Foreign State Papers I924,
Part I (London, His Majcsty's Stationcry Office, 1927), Vol.
CXIX, pp. 36-4r.
British Order in Council making further and other Provision for
the Peace, Order and Good Government of Northern Rhodesia.
London, February 20,I924, in British and Foreign State Papers
I924, Part 1 (1927), Vol. CXIX, pp. 41-53, at p. 45.
Order in Council amending "The Northern Rhodesia (Legislative
Coimcil) Order in Council, I924".-London, June 23, I938, in
British and Foreign State Papers I938 (London, His Majesty's
Stationery Office, 1951), Vol. 142, pp. 39-43, at p. 40.
The Northern Rhodesia (Electoral Provisions) Order in Council,
I962, Statutory Instruments I962, No. 626 (London, Her
Majesty's Stationery Office, 1962), pp. 1-10.
Nyasalanc l :
British Order in Council providing for the Government of the COUNTER-MEMORIAL OF SOUTH AFRICA I73
Nyasaland (British Central A/rica) Protectorate.-London, July
6, I907, in British and Foreign State Papers I906-7 (London,
His Majesty's Stationery Office, I9II), Vol. C, pp. 94-99.
The Nyasaland (Constitution) Order in Councit, Statutory histru~
ments I96I, No. n89 (London, Hcr l\fajesty's Stationery Office,
1961), pp. 7, ro, 24.
Sierra Leone:
British Order in Cotmcil providing for the establishment of tire
Legislative Council of Sierra Leone.-London, January I6, I924,
in British and Foreign State Papers I924, Part I (London,
His l.\fajesty's Stationery Office, I927), Vol. CXIX, pp. 4-Ig,
at p. 6.
The Sierra Leone Protectorate Order in Cottncil, I924, in The
Statutory Rules & Orders and Stattltory Instrnments Revised to
December JI, I94'1 (London, His l\fajesty's Stationery Office,
I950), Vol. VIII, pp. 384-389.
The Sierra Leone (Li:gislative Co1t1zcil)Order in Council, I95I,
Statutory Instmments, I95I, No. 6rr (London, His l\fajesty's
Stationery Office, 1')51),pp. I-16.
Somaliland:
British Order in Comicil, for regulating Her Majcsty's Jurisdictiori
ùi the Somali/ancl Protectorate.-Balmoral, October7, I899, in
British and Foreign State Papers I898-r899 {London, Her
Majesty's Stationery Office, 1902), Vol. XCI, pp. 1n4-II29.
Order in Council providing for the Administration of theSomaliland
Protectorate.-London, December I7, I929 (as mnimded, March
28, r930), in British and Foreign State Papers 1930, Part I
(London, His Majcsty's Stationery Office, 1935), Vol. CXXXII,
pp. 22-39.
The Somali/and Orderin Cmmcil, 1960, Statzttory histrnmcnts I960,
No. 1060 (London, Her Majcsty's Stationcry Office, 196o),
pp. 3-4, 6.
Southcrn Rhodcsia:
The Southern Rhodesi·a (Constitution) Order in Council, I96I,
Statlltory Instruments r96r, No. 2314 {London, Her l\fajesty's
Stationery Office, 1961), pp. 25, 29-51, 6r-63.
Swaziland:
British Order in Council, establishing Jurisdiction in Swaziland.
Landon, June 25, I903, in British and Foreign State Papers
r902-r903 (London, Her l\fajesty's Stationery Office, rgo6),
Vol. XCVI, pp. n2G-rr29.
British Order in Cou11cil relating to Jurisdictio1t in Swaziland
(ControlbyHighCommissioner forSouth Africa) .-San,lringham,
December I,I906, in British and Foreign State Papers I905-I9o6
(London, His Majcsty's Stationcry Office, rgro), Vol. XCIX,
pp. 863-864.
Tanganyika:
British Order in Coimâl providing for British Administration of
the Tanganyika Territory.-London, ]uly 22.•I920, in Br~tis'1
and Foreign State Papers r920 {London, His Majesty's Stahon
ery Office, I923), Vol. CXIII, pp. 97-1u.174 SOUTH WEST AFRICA
Order in Council constituting a Legislative Coimcil for the Tangan
yika Territory.-London, Mard~ I9, r926, in British and Foreign
State Papers r926, Part I (London, His Majcsty's Stationery
Office, 1931), Vol.CXXIII, pp. 135-142.
Order in Council amending "The Tanganyika (Legislative Coun
cil) Amendment OrdfJr in Council, r926" .-London, October
30, r945, in British and Foreign State Papers r943-r945 (Lon
don, H,~r l\Iajesty's Stationcry Office, 1953}, Vol. 145, pp.
651-653.
Togoland:
British O:•derin Council providing for the Administration of the
Mandat~d Territory of the British Sphere of Togoland.-London,
October II, r923, in British and Foreign State Papers r923,
Part I (London, His Majesty's Stationery Office, 1926), Vol.
CXVII, pp. 116-121.
Ugancla:
British Otder in Councit, establishing Jurisdiction in the Uganda
Protectorate.-London, August II, r902, in British and Foreign
State Papers r9or-r902 (London, His Majesty's Stationery
Office,1905), Vol. XCV, pp. 636-646.
Order in Council providing for the Gavernment o/ the Uganda
Protectorate.-London, May IJ, r920, in British and Foreign
State P1ipers r926, Part I (London) His Majesty's Stationery
Office, :r93r), Vol. CXXIII, pp. 105-nr.
l\Iiscellancous:
British Order in Coimcil, for determining the Mode of exercising
the Pmier and J urisdiction acquired by Her Majesty within divers
Cotmtries on the West Coast of A/rica near or adjacent to Her
Majesty's Gold Coast Colony.-Osborne, August 6, r874, in
British and Foreign State Papers I874.r875 (London, William
Ridgway, 1882), Vol. LXVI, pp. 957-958. .
British Order in Council, providing for the exercise of British
Jurisdi,:tion in certain Territories of South A/rica north of
British Bechuanaland.-Windsor, June 30, r890, in British and
Foreign State Papers r889-r890 (London, Her Majesty's Sta
tionery Office). Vol. LXXXII, pp. ro6r-ro62.
British Order in Council, providing for the exercise of British
Jurisddion in certain Territories in South Africa, north of
British Bechua11ala11d.-Windsor, May 9, r89r, in British and
Foreign State Papers r890-r89r {London, Her Majesty's Sta
tionery Office, 1897), Vol. LXXXIII, pp. 809-812.
British Ovder in Council, providing for the Exercise of Her Majesty's
Jurisdiction in Territories adjacent to the Colony of the Cambia.
Windsor, November 23, r893, in British and Foreign State
Papers r892-r893 (London, Her Majesty's Stationery Office,
1899}, Vol. LXXXV, pp. 1251-1253.
British Order in Councit, for the exercise of Jurisdiction in the
British Central A/rica Protectorate.-London, August II, r902,
in British and Foreign State Papers r9or-I902 (London, His
l\.fajesty's Stationery Office, 1905), Vol. XCV, pp. 646-656. COUNTER-1\ŒMORIAL OF SOUTH AFRlCA
(3) Letters Patent.
British Letters Patent, for the Annexation tothe Colony of the Cape
of Good Hope of the Port or Settlement of Walfisch Bay, on the
West Coast of Soi1th A/rica, and of certain Territory surrou1iding
the same.-Westmi-nster, December I4, r878, in British and
Foreign State Pap1:rs r878-r879 (London, William Ridgway,
1886}, Vol. LXX, pp. 495-496.
British Letters Patent, constituting the Office of Governor and
Commander-in-chie/ of the Colony of the Cambia, and providing
for thegovernment thereo/.-Westminster, November 28, r888, in
British and Foreign State Papers r888-r889 (London, Her
Majesty's Stationery Office), Vol. LXXXI, pp. 140-145.
Cambia Colony and Protectorate: Letters Patent constituting the
Officeof Govemor and Commander-in-Chie/ of the Colony and
providing for the Government thereof.-Westminster, Fcbruary
r9r5, in The Constit~itions of all Cotmtrics (London, His Majesty's
Stationery Office, 1938), Vol. I, The British Empire, pp. 453-
454.
British Let/ers Pate,it passed undcr ti,,eGreat Seal of the United
Kingdom consWuting the Office of Governor and Commander-in
Chief of the Gold Co,ist Co/ony, and providing for the Govemment
tliereof.-Westmi1isti:r, September zo,9r6, in British and Foreign
State Papers I9r6 (London, His Majesty's Stationery Office,
1920), Vol. CX, pp. 276-28r.
The Southern Rhodesia Constitution Letters Patent, 1923, dated
September I, I923, î~roviding for the Constitution of Responsible
Government in the Colony of Southern Rhodes-ia,in The Statutory
Rules é-Orders and Statutory Instruments Revised to DecemberJI,
r948 (London, His Majesty's Stationery Office, 1952), Vol. XXI,
pp. 371-401, at pp. 372, 377, 379-382.
Letters Patent, dated ]anuary 28, r924, passed ttnder the Great
Seal of the United Ki'ngdom constituting the Officeof Governor and
Commander-in-Chie/ of the Colony of Sierra Leone and providing
for theGovernment tltereo/, in The Statutory Rules é-Orders and
Statutory Instruments Revised to December JI, I948 (London,
His Majesty's Stationery Office, 1952), Vol. XXI, pp. 1-6.
(4) Charters.
British Charter, revoking so much of the Royal Commission, dated
the r9th of Februar-y, r866, as provides for the government of
Her Majesty's Settlements on the Gold Coast and of Lagos: and
constituting those SeUlements into a separate Colony to be called
the Gold Coast Colony; and providing for the government thereo/.
Westminster, July 24, r874, in British and Foreign State Papers
r874-r875 (London, \:Villiam Ridgway, 1882), Vol. LXVI,
pp. 942-947·
British Charter, revoki11gso much of the Royal Commission, dated
the r9th day of Febrttary, r866, as provides for the.govemment of
Her Majesty's Set.tlements of Sierra Leone and on the Cambia;
and constituting those Settlements into one Government, to be
called the West A/rica Settlements; ,md providing /or the govern
ment thereo/.-Westrninster, December I7, r874, in British and
Foreign State Papers r874-I875 (1882), Vol. LXVI, pp. 948-953. SOUTH WEST AFRICA
(5) Royal Instructions.
Cambia Colony and Protectorate: Royal I1istmctions to the Governor
and Commander-in-Chief.-St. James's, February 27, I9I5 (as
amended .1_928),in The Constitutions of ail Countries (London,
His :Majesty's Stationery Office, 1938), Vol. I, The British
Empire, pp. 454-455.
Gold Coast: Royal Instructions tothe Governor and Commander-in
Chief.-St. ]ames's, May 23, .1_925(as amended I934 and .1_937),
in The Constitutions of all Coimtries (1938), Vol. I, p. 466.
Nigeria Colony and Protectorate: Royal Instn,ctions to the Governor
and Commander-in-Chief of the Colony.-St. James's, December 9,
.1_922(as amended to.1_937),in The Constitutions of all Countries
(1938), Vol. I,pp. 523-524.
Nyasaland Protectorate: Royal Instmctions to the Governor and
Commcmder-in-Chief.-St. James's, Augi,st 9, .1_907i,n The Con
stitutions of ail Countries (1938), Vol1,pp. 537-538.
B. Parliamentary Debates
Parliamentary Debates (Hanscml), House of Gommons, Fifth Series
(London, Her Majesty's Stationery Office), Vol. 6or, (1958-1959),
Cols. 885-8S6.
C. Annual Reports on Colonies and Protectorates
Basutoland:
A nnual Report on Basutolaiul for the year .1_9(London, Her Majesty's
Stationery Office, 1959), pp. 26, 28.
Bechuanaland:
Beclmanaland Protcctorate: Report for the year 1957 {London, Her
Majesty's Stationery Office, 1958), pp. 34-35, 48, 84,
Bechuanaland Protectorate: Report for the Ycar 1959 (London, Her
Majesty's Stationery Office, 1960), pp. 34-35.
Gambia:
Annual Report on the Social and Economie J>rogressof the People of
the Cambia, .1_938,Colonial Reports-Annual, No. 1893 {London,
His Majesty's Stationery Office, 1939), pp. IO-II.
Colonial Offict:Annual Report on The Cambia for the year .1_94(London,
His Majesty's Stationery Office, 1949), pp. 46-47.
Cambia: Report for the years 1958 and 1959 (London, Her Majesty's
Stationery Office, 1961), pp. 84-85.
Kenya:
Annual Report on the Social and Economz'c Progress of the People
of the Kenya Colony and Protectorate, .1_93r,Colonial Reports
Annual, No. 1606 (London, His l\Iajesty's Stationery Office, 1933),
p. 5.
A>mual Report on the Social and Economie Progress of the People
of the Kenya Colony and Protectorate, I938, Colonial Reports
Annual, No. 1920 (London, His Majesty's Stationery Office, 1939),
p. IO.
Colonial Office Report on theColony and Protectorate of Kenya for the
year .1_952(London, Her Majesty's Stationery Office, 1953), p. 139.
Colonial Office Report on the Colony and Protectorate of Kenya for the
Year .1_959 (London, Her Majesty's Stationery Office, 1960), p. 34. COUNTER-MEMORIAL OF SOUTH AFRICA 177
Colonial Office Report on the Colony and Protectorate of Kenya /or the
year 1960 (London, Her Majesty's Stationery Office, 1963), pp. n5-
n6.
Nyasaland:
A1mual Report on the Social and Economie Progress of the People
of Nyasaland, I937, Colonial Reports-Annual, No. 1885 (London,
His Majesty's Stationery Office, 1939), pp. 5-6.
Nyasaland: Report for the year 1960 (London, Her Majesty's Sta
tionery Office, 1961), p. roo.
Somaliland:
Annual Report on the Social and Economie Progress of the People of
Somali/and, 1937, Colonial Reports-Annual, No. 1880 (London,
His Majesty's Stationcry Office, 1939), p. 5.
Colonial Otfice Amiual Report on the Somali/and Protectorate for the
year 1948 (London, His Majesty's Stationery Office, 1949), p. 32.
Swaziland:
Annual Report on the Social and Economie Progress of the People of
Swaziland, 1937, Colonial Reports-Annual, No. 1884 (London,
His Majesty's Stationery Office, 1939), pp. 5-6.
Annttal Report mi the Social and Economie Progress of the People of
Swaziland, I938, Colonial Reports-Annual, No. 1921 (London,
His Majesty's Stationery Office, 1939), pp. 3-5.
Swaziland: Report for the year 1958 (London, Her Majesty's Sta
tionery Office, 1959), pp. 16, 33, 68-69.
Uganda:
A11m1alReport on the Social and Economie Progress of the People of
the Uganda Protectonile, 1931, Colonial Reports-Annual, No. 1601
{London, His Majesty's Stationery Office, 1932), pp. 5-6.
D. Annual Reports on Mandated Territories Submitted to the Council
of the League of Nations
Cameroons:
Report by His Britannic Majesty's Government on the Administratt'.on
under Mandate of British Cameroons for the Year I924, Colonial
No. 16 (London, His Majesty's Stationery Office, 1925), p. 5.
Report by His Majesty's Government in the United Kingdom of Great
Britain and Northern freland to the Council of the League of Nations
on the Administration of the British Cameroons for the Year I928,
Colonial No. 42 (London, His Majesty's Stationery Office, 1929),
pp. 4-5.
Tanganyika:
Report by His Britannic Majesty's Government on the Adminis
tration under Mandate of Tanganyika Territory for the year 1924,
Colonial No. II (London, His Majesty's Stationery Office, 1925),
p. 5.
Report by His Britannic Majesty's Government to the Cozmcil of the
· League of Nations on the Administration of Tanganyika Territory
/or the year 1926 (London, His Majesty's Stationery Office, r927J,
pp. 5-6.
Report by His Majesty's Government in the United Kingdom of Great
Britain and Northern freland to the Cottncil of the League of Nations178 SOUTH WEST AFRICA
on the Administration of Tanganyika Territory for the year I930,
Colonial No. 60 (London, His Majesty's Stationery Office, 1931),
p. 8.
Togoland:
Report by His Britannic Majesty's Government on the Administration
under Mandate of British Togoland for the Year I924, Colonial
No. 14 (London, His Majesty's Stationery Office, 1925), p. 9.
Report by His Majesty's Government in the United Kingdom of Great
Britain and Northern Ire/and to the Council of the League of Nations
on the Administration of Togo/and under British Mandate For the
Year I928, Colonial No. 43 (London, His Majcsty's Stationery
Office, 1929), p.5.
E. Annual Reports on Trust Territories Submitted to the United Nations
Cameroons:
Report by Hi·s Mafesty's Government in the United K.ingdom of Gre1it
Britain and Northern Ireland to the Trnsteeship Cowicil of the
United Nations on the Administration of the Cameroons mtder
United J<.ingdomTrnsteeship for the Year I947, Colonial No. 221
(London, His 1\Iajesty's Stationery Office, 1948), pp. 14-15.
Report by Her M afesty's Government in the United K ingdom of Great
Britain and Northem lreland to the General Assembly of the United
Nations on the Administration of the Cameroons under United
Kingdom Trusteeship for the year I95I, Colonial No. 288 (London,
Her Majcsty's Stationery Office, 1952), pp. 39-40.
Report by He,. Mafesty's Government in the United Kingdom of Great
Britain and Northem lreland tothe General Assembly of the United
1Vations on the Cameroons under United Kingdom Administration
for the Year I954, Colonial No. 318 (London, Her Majesty's Sta
tionery Office,1955}.pp. 12-13.
Tanganyika:
Tanganyika 11nderUnited J<.ingdomAdministration: Report by Her
Majesty's Government in the United Kingdom of Great Britain
and Northern Ireland to the General Assembly of the United
Nations for the year 1958, Colonial No. 342 (London, Her Majesty's
Stationery Office, 1959), pp. 168-169, r7r-r72.
1
F. Command P:i.pers ("Blue Books")
Further Paptrs relative tothe State of the Kaffir Tribes (London, Eyre
and Spottiswoode, 1855), p. 16, in Parliamentary Papers [Great
Britain], Kafir Wars, State of the Kafir Tribes I85I-I865.
C.2144, FmUier Correspondence respecting the Affairs of South Af rica
(London, Eyre and Spottiswoode for Her Majesty's Stationery
Office, 1878), p. 8.
C. 2754, Copy of a Despatch /rom the Right Hon. The Earl of Kim
berley,containingtheinstructionsaddressed to Governor Sir H. Robin
son,G.C.Af.G., on his departure to assume the Offices of Governor of
the Cape and High Commissioner in South Ajrica (London, Eyre and
Spottiswoode for Her Majesty's Stationery Office, 1881), p. 8.
C. 4190, Correspondence respecting the Settlement at Angra Pequena,
1 Papers prnsented to Parliament by command of His/Her Majesty. COUNTER-MEMORIAL OF SOUTH AFRICA
179
on the S. W. Coast of A/rica (London, Eyre and Spottiswoode, 1884),
pp. IO, 32.
C. 4262, Further Correspondence respecting the Settlement at Angra
Pequena on the South-West Coast of A/rica (London, Eyre and
Spottiswoode, 1884), pp. 7-rr, 36, 39-44, 50, 68, 73-74-
C. 4265, Copy o/ a Desf•atch /rom the Right Honourable the Earl of
Derby, K.G., to Her Majesty's High Commissioner in South A/rica,
relative to the Establishment of a German Protector:ate at Angra
Pequena and along the neighbouring Coast (London, Eyre and
Spottiswoode, 1884), pp. 3-7, 12.
C. 9223, Trade and Shipping of Africa (London, Darling & Son, Ltd.
for Her Majesty's Stationery Office, 1892), p.33.
Cd. 904, Papers relating to Legislation Afjecting Nativinthe Transvaal
(London, Darling & Son for His Majesty's Stationery Office, 1902),
pp. 20, 23-24.
Cmd. 4614, Papers concaning Affairs in Liberia, December I9JO
May I934 (London, His Majesty's Stationcry Office, 1934), p. 59.
Cmd. 5949, Rhodesia-Nyasaland Royal Commission Report (London,
His Majesty's Stationery Office, 1939), pp. 12-13, 15, 19.
Cmd. 7167, The Colonial Empire {I9J9-I947) [London, His Majcsty's
Stationery Office, 194iJ. p. 34-
Cmd. 7715, The Colonial Territories (r948-I949) [London, His
Majesty's Stationery Office, 1949], p. 23.
Cmd. 7987, The British Territories in East and Central Africa I945-
I950 (London, His Majcsty's Stationery Office, 1950), p. 9.
Cmd. 9475, East Africa Royat Commission H)5J-r955, Report (London,
Her Majesty's Stationery Office, 1955), pp. 200, 209, 222.
Cmnd. 309, Kenya: Proposais for New Constitutional Arrangements
(London, Her Majesty's Stationery Office, 1957), pp. 3-4.
Cmnd. 369, Kenya: Despatch on the New Constitutional Arrangements
{London, Her Majesty's Stationery Office, 1958), pp. 3-+
Cmnd. 960, Report of the Kenya Constitutional Con/erence Held in
London in ]anuary and February, r960 (London, Hcr l\fajesty's
Stationery Office, 1960}, pp. 7-8.
Cmnd. ro44, Report of thii Somaliland Constitutional Conference Held
in London in May, I960 (London, Her Majesty's Stationery Office,
1960), pp. 3-4.
Cmnd. II49, Advisory Commission on the Revie:w of the Constitution
of the Federation of Rhodesia and Nyasaland, Report: Appendix VI,
Survey of Developments since I953 (Report of Committee of 0-(Jicials)
[London, Her Majesty's Stationery Office, 1960], pp. 2, 5-9,II-12,
33-35, 39-40, 43-45, 52-54.
Cmnd. 1523, Uganda: Report of the Uganda Constit-utional Conference,
r96I and Text of the Agreed Draft of a new Buganda Agreement
initialled in London on 9th October, r96I (London, Her Majesty's
Stationery Office, 1961), pp. 4-5, 14-19.
Cmnd. 1700, Report of the Kenya Constittttional Confere11ce, r962
(London, Her Majesty's Stationery Office, 1962), p. 16.
Cmnd. 2082, Kenya: Pn:parations for lndependence (London, Her
Majesty's Stationery Office, 1963), p. 1.
G. Reference Pamphlets on Colonial and Commonwealth Affairs
{1) Kenya, Pamphlet No. R. 4489 (London, Reference Division,
Central Office of Information, Jan. 1960), pp. 2-3, 17.180 SOUTH WEST AFRICA
(2)Uganda, Pamphlet No. R. 5316 (London, Reference Division,
Central Offl.ceof Information, Jan. 1962), p. 4.
(3)The Gambùi, Pamphlet No. R. 5519 (London, Reference Division,
Central Officeof lnformation, Mar. 1963), p. 12.
(4) Co1istitution.alDevelopment in the Commonwealth: A Brù/ Survey
of Recent Evolution, Part II: British Dependencies, Pamphlet
No. RF. P. 2010 (London, Reference Division, Central Office of
Information, Mar. 1951), p. 22.
(S)Political Advance in the United Kingdom Dependencies, Pamphlet
No. RF. P. 4324 (London, Reference Division, Central Office of
Information, Revised Sep. 1959), p. 16.
(6) Nigeria: the Making of a Nation, Pamphlet No. RF. P. 4473
(London, Reference Division, Central Officeof Information, June,
1960)' pp. 28-29.
(7) Sierra Leone: the .Making of a NationPamphlet No. RF. P. 485r
(London, Reference Division, Central Office of Information,
November, 1960), pp. 26, 28.
(8) Uganda: The Making of a Nation, Pamphlet No. RF. P. 5441
(London, Reference Division, Central Office of Information,
July, 1962), pp. 31-33.
(9) Kenya, Pamphlet No. RF. P. 56rr (London, Reference Division,
Central Officeof Information, September, 1963), pp. 27, 30.
H. Other
(1) Peact;Handbooks, Issued by the Historical Section of the Foreign
Office (London, His Majesty's Stationery Office, 1918-1919),
Vol. XX, Spanish and ltalian Possessions: l ndependent States.
No. 132, Spanish Giii11ea(Apr. 1919), p. r.
(2) British M."ilitaryAdministration Somalùi: Annual Report by the
CMef Admint'strator for the year ended JI Decemberr946 (Govern
ment Pre~.s.B.M.A. Somalia, 1947), p. 42.
(3) Notes on Colonial Constitutional Changes r940-r950,Mcmo. No. 4
(Reference Section, Information Department, Colonial Office,
Apr. 1950), p. 13.
(4) Report of theCommission on The Civil Services of Kenya, Tangan
yika, Uganda & Zanzibar r947-,;8,Colonial No. 223 (London, His
l\fajcsty's Stationery Office, 1948), pp. 24-27, 29-30.
(S)Commonwealth Survey: A Record of United Kingdom and Com
monwealth Affairs (London, Refercnce Division, Central Office
of Information), Vol. 5, No. 20 (29 Sep. r959), pp. 858-859;
Vol. 8,No. 8 {IOApr. 1962), pp. 340-343; Vol. 9, No. l (I Jan.
1963), p. 5.
(6) Native Administration and Political Developmentin British Tropical
Africa, Report by Lord Hailey, G.C.S.l., G.C.M.G., G.C.I.E.,
r940-42, J>.81.
(7)Lord Hailey, Native Administration ili the British African Terri
tories(I-ondon, His/Her Majestv's Stationery Office, r950-r953),
Part 1, East Africa: Uganda: Kenya, Tanganyilia, pp. 49-50;
Part II, Central Africa: Zanzibar, Nyasa/and, Northem Rhodesia,
p. 89; P&.rtIII, West Africa: Nigeria, Gold Coast, Sierra Leone,
Cambia, pp. 3-24; Part V, The High Commission Territories:
Basutoland, The Bechuanaland Protectorateand Swaziland, pp. 318-
321, 357, 361-369, 377-378, 388-390. COUNTER-M.EMORIAL OF SOUTH AFRICA
XXXII. United States of America
(1) Papers Relating to the Foreign Relations of the United States: The
Paris Peace Con/erence, z9r9, 13 Vols. (Washington, United States
Government Printing Oflice, 1942-1947), Vol. III, pp. 723, 741-742,
769-770, 785-786, 788, 790, 795-796, 800-802; Vol. V, p. 508.
(2) Foreign Labor Information: Labor in Liberia (United States Depart
ment of Labor, Bureau of Labor Statistics, May 1960), p.+
(3) Ellender, A. J., A Report on United States Foreign Operations in
Africa, 88th Congres, 1st Session, Senate, 1962 [Committee Print]
(Washington, U.S. Government Printing Office, 1963), p. 121.
XXXIII. Books and Pamphlets
A. Authors and Titles
(1) Abraham, W. E., The Mind of Africa (London, Weidenfeld and
Nicoison, 1962), p. 163.
(2) Alexander, J. E., An Expedition of Discovery into the lnterior of
Africa, Through the Hitherto Undescribed Countries of The
Great Namaquas, Boschmans and Hill Damaras, 2 Vols. {Lon
don, Henry Colburn, 1838), Vol. I, pp. 221-224, 295; Vol. II,
pp. 39, II6-II7, 133, 136, 151, l63, 2II-212.
(3) Anderson, R. E., Liberia: America's African Friend (Chapet
Hill,The University of North Carolina Press, 1952), pp. 197-198,
208,210.
(4) Andersson, C. J.,Lal:e Ngami; or, Explorations and Discoveries,
during Four Years' Wanderings in the Wilds of South Western
Africa, Second Edition (London, Hurst and Blackett, 1856),
pp. II4-II5, 121-124, 132-136, 142-144, 148-149, 198-205, 210-
2II, 217-226, 251-252, 295-296, 437-438.
(5) Andersson, C. J.,The Okavango River, A Narrative of Travel,
Exploration, and Adventure (London, Hurst and Blackett,
1861), pp. 145-146, 184, 187, 190-191, 194, 196, 214-216.
(6) Andersson, C. J.,Notes of Travel in South Africa, ed. bL. Lloyd
(London, Hurst and Blackett, 1875), pp. 64-125, 145, 14i, 150,
157, 217, 331-338. .
(7) Apter, D. E., The Political Kingdom in Uganda: A Study m
Bureaucratie Nationalism (Princeton: Princeton University Press
1961), pp. 163-164, 429.
(8) Baker, R. S., Woodrow Wilson and World Settlement, 3 Vols.
(New York, Doubleday, Page and Co., 1922-1923), Vol. I,
pp. 424-432; Vol. III,pp. 108-rro, 126-129.
(9) Ballard, P. B., Thought and Language (London, University of
London Press, Ltd., 1934), p. 17.
(10)Bauer, P. T. and Yamey, B. S., The Economies of Under
Developed Countries (Cambridge, University Press, 1960), pp. 71,
129-130, 174.
(n) Beard, C. A. and M. R., The Rise of American Civilization
(London, Jonathan Cape, 1944) [one volume edition], Vol. II,
143-144.
(12) Beer, G. L., African Questions at the Paris Peace Conference,
ed. by L. H. Gray (New York, Macmillan, 1923), pp. 4JI,
443-444.182 SOUTH WEST AFRICA
{13}Bentwich, N., The Mandates System (London, Longmans, Green
and Co., 1930), pp. 4-5.
(14)Bourret, F. :M., Ghana-The Road to lndepmdence I9r9-r957
(London, Oxford University Press, 1960), p. 218.
(15) Bruwer, J. P. van S., The Kuanyama of South West Africa, A
Preliminary Study [unpublished], pp. 15, 21-22, 32-33.
(16) Bueil, R. L.,The Native Problem in Africa, 2 Vols. (New York,
The Macmillan Company, 1928), Vol. Il,p. 553.
(17) Bueil, R. L., Liberia: A Century of Survival I847-I947, African
Handbooks: 7 (Philadelphia, University of Pennsylvania Pres.,;,
1947), p.?•
(18) Carter, G. M., lndependence for Africa (London, Thames and
Hudson, :r96I), p. 94-
(r9) Carter, G. M. (ed.), African One-Party States (New York, Cornell
University Press, 1962), pp. 132, 334, 356, 461-463.
(20) Chowdhuri, R. N'., International Mandates and Trusteeship
Systems (The Hague, Martinus Nijhoff, 1955), pp. 16-22, 270-271.
(21) Comhaire, J. L. L., Aspects of Urban Administration in Tropical
and Southern A/rica, Communications from the School of African
Studies, University of Cape Town (New Series No. 27) [July
1953], p. 67.
(22)Davis, G., Melunsky, L. and du Randt, F. B., Urban Native
Law (Port Elizabeth, Grotius Publications, 1959), p. II.
(23) Deschamps, H., The French Union: History, Institutions,
Economy, Countries and Peoples, Social and Political Changes
(Paris, Editions Berger-Levrault, 1956), pp. 32-33, 39-40, 71,
II3, 150.
(24) De Smith, S. A., Judicial Review of Administrative Action
(London, Stevens and Sons Ltd., 1959), p. 167.
(25) Duncan, P., Sotho Laws and Customs: A Handbook based on
Decided Cases in Basutoland together with The Laws of Lerotholi
(Cape Town, Oxford University Press, 1960), pp. 98-99.
(26) Egerton, F. C. C., Angola in Perspective: Endeavour and Achieve
mcnt in Portuguese West Africa (London, Rontledge & Kegan
Paul, 19:,?L pp. nS-120.
(27) Egerton, H. E., A Short History of British Colonial Policy,
Sixth Edition (London, Methuen & Co Ltd., 1920), p. 271.
(28} Eigenhuis, J., Albert Schweitzer (Haarlem, N/V H. D. Tjeenk
Willink & Zoon, 1929). p. 97.
(29) Elias,T. O., Ghana and Sierra Leone: The Development of their
Laws and Constitutions [Vol. IO of The British Commonwealth:
The Devdopment of its I,aws and Constitutions, ed. by George
W. Keeton) (London, Stevens & Sons Ltd., 1962), pp. 31-33,
37-38, 41-42, 65, 70, 217, 223, 227, 239, 243, 246-251, 254,
258-260.
(30) Evans, l. L., Native Policy in Southern Africa: An Outline
(Cambridge, University Press, 1934}, p. 138.
(31} Eybers, G. W. (ed.), Select Constitutional Dowments Illustrating
South African History, r795-r9ro (London, George Routledge &
Sons, Ltd., 1918). p. 413.
(32) Ezera, K., Constitutional Developments in Nigeria: An Analytical
Study of Nigeria's Constitution-Making Developments and the
Historical and Political Factors that affccted Constitutional COUNTER-MEMORIAL OF SOUTH AFRICA
Change (Cambridge, University Press, rg6o). pp. 27-29, 32, 2or-
202, 204, 208.
(33) Fischer, E., Die Reliobother Bastards und das Bastardierungs
problem beim Menschen [19r3] {Graz, Akademische Druck-U.
Verslagsanstalt, 1961), p. r4.
(34) Fourie, L., "The Bushmen of South West Africa", in The Native
Tribes of South West Africa (videXXX.D.1.i, supra).
(35) Franck, T. M., Race and Nationalism: The Struggle for Power
in Rhodesia-Nyasaland (New York, Fordham University
Press, 1960), p. 17.
(36) François, J. P. A., Grondlijnen van het Volkenrecht, Second
Edition (Zwolle: N.V. Uitgevers Mij W. E. J. Tjeenk Willink,
1957), pp. 227-231.
(37) Frankel, S. H., The Economie Impact on Under-Developed So
cieties: Essays on International lnvestment and Social Change
(Oxford, Basil Blackwell, 1953), pp. 69-70, 95, 134-
(38) Fraser, C. F., Control of Aliens in the British Commonwealth of
Nations (London, The Hogarth Press, 1940), p. 254.
(39) Galton, F., Interior of South Africa (1852).
(40) Galton, F., The Narrative of an Explorer in Tropical South
Africa {1853).
(41) Ganshof van der Meersch, W. J.,Fin de la Souveraineté Belge
au Congo: Documents et Réflexions(Bruxelles, Institut Royal des
Relations Internationales a La Haye: Martinus Nijhoff, 1963),
pp. 126-129, 161-164, 167-169.
(42) Giniewski, P., Banfostans: A Trek towards the Future (Cape
Town, Human & Rousseau, 1961), pp. ro2-ro4, 1o6.
(43) Goodrich, L. M. and Hambro, E., Charter of the United Nations,
Second Edition (London, Stevens and Sons, 1949), pp. 3-18.
(44) Grobler, J. H., A/rù:a's Destiny (Johannesburg, The Book of
the Month Club, 1958), p. 89.
(45) Lord Hailey, An A/rican Sttrvey (London, Oxford University
Press, 1938), pp. 125, 134-137, 158-160, 164-168, 170, 206-213,
215-216, 220, 250-253, 432-436, 477-478, 494-496.
(46) Lord Hailey, An African Survey: Revised r956 (London, Oxford
University Press, 1957), pp. 169, r85, 193, 228, 230-234, 246,
254, 289-291, 296, 314, 333-335, 341. 350-352, 355, 357, 368,
370-371, 437, 446-45r, 453-470, 572-574, 578-579, 685, 758-759,
779, n69, 1229, 1268, 1422-1423, 1514, 1520-1523.
(47) Hahn, C. H. L, "The Ovambo", in The Native Tribes of South
West A/rica (vide XXX.D.r.i, supra).
(48) Hall, H. D., Mandat~s. Dependenci'esand Trusteeship (London,
Stevens and Sons, 1948), pp. 17 ff., 97-100, ro2-105, 123-124, 136,
140, 146, 153, 174, 209, 272-273, 285-286, 288-289.
(49) Headlam, C. (ed.), The Milner Papers: South Africa 1899-1905,
2 Vols. (London, Cassen & Company Ltd., 1931-33), Vol. H,
p.467.
(50) Hesse, H., Die Schutwertriige in Siidwesta/rika: Ein Beitrag zur
rechtsgeschichtlichen und politischen Entwickelung des Schutz
gebietes (Berlin, Wilhelm Güsserott, Verslagsbuchhandlung,
I()05), pp. 12, 25,
(51) Hesse, H., Die Land/rage und die Frage der Rechtsgiiltigkeit der
Konzessionen in Siidwesta/rika: Ein Beitrag zur wirtschaftlichen SOUTH WEST AFRICA
und finanziellen Entwickelung des Schutzgebietes (Jena, Her
mann Costenoble, 1906), Il. Teil, pp. 94-95, 199.
(52) Hintrager, O., Siidwestafrika in der deutschen Zeit (München,
Kommissionsverlag R. Oldenbourg, 1955), pp. 7-8, 10, 19, 23-29,
33, 35-37, 39-4r, 47, 65, Sr, 92.
(53) Hobson, J. A., Towards International Government (London, 1915).
(54) Hodgkin, T., Nationalism in Colonial Africa (London, Frederick
Muller Ltd., 1956), pp. 35, 51-52.
(55) Hoselitz, B. F. (ed.), The Progress of Underdeveloped Areas
(Chicago, The University of Chicago Press, 1952), pp. 90, III.
(56) House, E. M. and Seymour, C. (eds.), What really happened at
Paris (London, Hodder and Stoughton, 1921), pp. 227,440.
(57) Howe, S. E., The Drama of Madagascar (London, Methuen &
Co. Ltd., 1938), p. 290.
(58) Huberich, C. H., The Political and Legislative History of Liberia
(New York, Central Book Company, Inc., 1947), Vol. II, p. no7.
(59) Hudson, i\f. O., International Legislation, 4 Vols. (Washington,
Carnegie Endo\\ment for International Peace, r93r), Vol. I,
p. 319.
(60) Hudson, M. O., The Permanent Court of International Justice
I920-194-2 (New York, Macmillan, 1943), p. 512.
(6r) Irle, 1., Die Herero: Ein Beitrag zur Landes-, Volks- und
Missionskunde (Giiters1oh, Druck und Verlag von C. Bertels
mann, 1906), pp. 52, 149.
(62) Italiaander,R., Schwarze Haut im Roten GriO (Düsseldorf/Wien,
Econ-VerlagGmbH., 1962), pp. 21-22, 27-31, 39-41, 53-54, 62, 68.
(63) James. P. E. and Jones, C. F. (eds.), American Geography:
Inventory and Prospect (Syracuse, Association of American
Geographers, 1954), p. 227.
(64) Jessup, P. C., A Modern Law of Nations: An Introduction
(New York, :Macmillan, 1959), p. 89.
(65) Jones, N. S. C., The Pattern of a Dependent Economy: The
National lncome of British Honduras {Cambridge, University
Press, 1953), p. r2r.
(66) Kennedy, W. P. M. and Schlosberg, H. J.,The Law and Custom
of the South A/rican Constitution (London, Humphrey Milford,
1935), pp. 514-515.
(67) Kent, R. K., From Madagascar ta the Malagasy Republic (Lon
don, Thames and Hudson, 1962), pp. 72, 78-82, 89.
(68) Kimble, G. H. T., Tropical Africa, 2 Vols. (New York, The
Twentieth Century Fund, 1960), Vol. II, Soâety and Polity,
pp. II2, n5-n6, I21-I22, 125-127, 356.
(69) Kitchen, H. (ed.), The Press in Afrt'ca (Washington, Ruth Sloan
Associates, Inc., 1956), p. 85.
(70) Krüger, D. W., South African Parties and Policies I9IO-I960:
A Select Source Book (Cape Town, Human & Rousseau, 1960),
pp. 87, 402-403, 408.
(71) Kuczyrn;ki, R. R., Demographic Survey of the British Colonial
Empire, 2 Vols. (London, Geoffrey Cumberledgc, Oxford Uni
versity Press, 1948-1949), Vol. I, West Africa, pp. 161, 189-191,
337, 34,·; Vol.II [East Africa, etc.], pp. 23, 239, 251, 343, 353,
416, 641-642.
(72) Lauterpacht, H., The Development of International Law by the COUNTER-MEMORIAL OF SOUTH AFRICA
International Court (London, Stevens and Sons, 1958), pp. 248,
358.
(73) Legum, C. (ed.), A/rica: A Handbook to the Continent (London,
Anthony Blond Ltd., 1961), pp. 193-194, 199-200.
(74) Legum, C., Pan-A/ricanism: A Short Political Guide (London/
Dumnow, Pall Mail Press, 1962), pp. 151, 165, 168.
(75) Leutwein, T., El/ jahre Gouverneur in Deiûsch-Südwesta/rika
(Berlin, Ernst Siegfried Mittler und Sohn, 1908), p. II.
(76) Lewis, W. A., Economie Si,rvey I9I9-I939 (London, George Allen
and Unwin Ltd., 1950), p. 52.
(77) Lipsky, G. A., Ethiopia: its people, ils society, its culture (New
Haven, Hraf Press, :c962), p. 96.
(78) Lloyd George, D., The Trnth about the Peace Treati'es, 2 Vols.
(London, Victor Gollancz, 1938), Vol. I, pp. n4-123, 530;
Vol. Il,p. 766.
(79) Logan, R. W., The Ajrican Mandates in World Politics (Wash
ington, The Public Affairs Press, 1948), pp. 1-2.
(80) Loram. C. T., The Education of theSouth African Native (London,
Longmans, Green and Co., 1917), pp. 129-130, 132, 151, 296-298,
300:
(81) Luther, E. W., Ethiopia Today (Stanford, Stanford University
Press, 196!), pp. 2y28.
(82) 1\fargalith, A. M., The International Mandates (Baltimore, Johns
Hopkins Press, 1930), pp. 33-34-
(83) 1\1cNair,A.D., The Law of Treaties (Oxford, The Clarendon Press,
1961), pp. 14-15, 383.
(84) Merriam, A. P., Congo: Background of Conflict (North Western
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(85) Miller, D. H., The Drafting of the Covenant, 2 Vols. (New York,
G. P. Putnam's Sons, 1928), Vol. I, pp. 186,190; Vol. Il, pp. 213-
228, 273, 275, 283, 285-286, 306, 314-315, 323, 333-334, 362,
384-385, 679-680.
(86) Millikan, M. F. and Blackmer, D. L. M. (eds.), The Emerging
Nations: Their Growth and United States Policy (Boston,
Little, Brown and Company, 1961), p. n7.
(87) Millikan, M. F. and Blackmer, D. L. M. (eds.), The Emerging
Nations: Their Growth and United States Policy (London, Asia
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(88) Mohr, E. G., Die Frage der Souveriinitiit in den Mandatsgebieten
(Borna-Leipzig, Universitatsverlag von Robert Noske, 1928), p. 4.
(89) Moon, P., World Opinion and South Africa (Johannesburg,
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(New York, McGraw-Hill Book Company, Inc., 1959), pp. 370,
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(91) 1\'eame, L. E., Whifo Man's Africa: The Problem of a White
Nation in a Black Continent (Cape Town, General Publishing
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(92) Oppenheirn, L., International Law: A Treatise, 2 Vols., Eighth
Edition, ed. by H. Lauterpacht (London, Longmans, Green and
Co., 1955), Vol. I.p. 384.
(93) Padmore, G., Pan-Africanism or Commimism: The Coming
Struggle for Africa (London, Dennis Dobson, 1956), pp. 268-269.186 SOUTH WEST AFRICA
(94) Peaslee, A. J.,Constitutions of Nations, 3 Vols., Second Edition
(The Hague, Martinus Nijhoff, 1956), Vol. I. Afghanistan to
Finland, pp. 855-857; Vol. Il, France to New Zealand, pp. 586-
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(95) Périgord, P., The International Labor Organization (New York,
D. Appleton and Co., 1926).
(96) Piron, P. and Devos, J.,Codes etLois du Congo BeJge (Bruxelles,
Maison Fi~rdinand Larcier, Leopoldville: Edition des Codes et
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(97) Pirow, O., James Barry lvfonnik Hertzog {Cape Town, Howard
Timmins). p. 198.
(98) Rautenbach, C. H., Open Discussion on Closed Universities, trans.
by M. W. Smuts (Turfloop, University College of the North,
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(99) Roberts, S. H., Hislory of French Colonial Policy (I870-r925),
2 Vols. (London, P. S. King & Son, Ltd., 1929), VoJ.II, pp. 397-
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(100) Robinson, K. 1
(ror) Rosenne, S., The International Court of Justice-An Essay in
Political and Lcgal Theory (Lcyden, A. W. Sijthoff's Uitgevers
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(102) Sandford, C., Ethiopia under HailéSelassié (London, J.M. Dent
& Sons Ud., 1946), p. 46.
(ro3) Schapera, I., A Handbook of Tswana Law and Custom (London,
Oxford University Press, for The International Institute of
African J_anguages and Cultures, 1938), pp. 195-196.
(ro4) Schapera, I. (ed.), The Bantu-Speaking Tribes of Soiûh Africa:
An Ethnographical Survey (Cape Town, Maskew Miller Ltd.,
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{105)Schapera. I., Government and Politics in Tribal Societies [Josiah
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(rn6) Schinz, H., Deutsch-Siidwest-Afrika: Forschungsreisen durch
die deutschen Schutzgebiete Gross-Nama- und HereroJand, nach
dem Kunene, dem Ngami-Sce und der Kalayari, 1884-1887
(Oldenburg und Leipzig. Schulzesche Hof-Buchhandlung und
Hof-Buchdruckerei, 1891), pp. 123-124.
(!07) Schnee, H., Deutsches Kolonial-Lexikon, 3 Bânde (Leipzig, Verlag
von Quelle & Meyer, 1920), IBand A-G. pp. 436, 451, 621-622;
II Band H-0, p. 34; III Band P-Z, p. 315.
(to8) Schneider, W., /Jas Volkerrechtliche Mandat (Stuttgart, Ausland
Und Heimat Vcrlags-Aktiengesellschaft, 1926), p. 14.
(ro9)Schwarzenberger, G., International Law, Third Edfüon (London,
Stevens and Sons, 1957), Vol. I, pp. 101-102, 138.
(no) Shotwell. J. T. (ed.), The Origins of the International Labor
Organizalio1i, z Vols. (New York, Columbia University Press,
1934), Vol. I, pp. 4, 86, u8; Vol. II, p. 125.
(III) Simpson, C.L., TheSymbol of Liberia [The Memoirs of C. L. Simp
son, former Liberian Ambassador to Washington and to the
1Author of "PoliticalDevelopment in French \Vest Africa", in A/Yica in the
Modern Wo~ld, editedby Stillman, C. W.Vide No. 116 on p. 187infra. COUNTER-MEMORIAL OF SOUTH AFRICA 187
Court of St. James's] (London, The Diplomatie Press and
Publishing Company, 196r), p. n7.
(u2) Smuts, J. C., The League of Nations: A Practical Suggestion
(London, Hodder and Stoughton, 1918), pp. 12, 15.
(n3) $muts, J. C., Toward a Better World (New York, World Book
Company, 1944), pp. 8, n-13.
(II4) Spiegel, M., Das Volkerrechtliche Mandat und seine Anwendung
au/ Paliistina {Vienna, Leuschner and Lubensky, 1928), pp. 8-9.
(u5) Starke, J. G., An Introduction to International Law, Third
Edition (London, Butterworth and Co., 1954), p. 57.
(n6) Stillman, C. W. (cd.), A/rica in the Modern World (Chicago, The
University of Chicago Press, 1955), pp. 140, 143-149, 157, 159-
160.
(II7) Stow, G. W., The Native Races of South A/rica: A History of the
Intrusion of the Hottentots and Bantu into the Hunting Grounds
of the Bushmen the Aboriginçs of the Country, ed. by G. McC.
Theal (London, Swan Sonnenschein & Co., Ltd., 1905), p. 257.
(118)Strouvens, L. and Piron, P. (eds.), CodesetLois du Congo Belge,
Sixième Edition (Bruxelles, Maison Ferdinand Larcien, S.A./
Léopoldville, Edition des Codes et Lois du Congo Belge, 1948),
pp. 827-828.
(n9) Taylor, W. C., The Firestone Operations in Liberia [Fifth Case
Study in an N.P.A. Series on United States Business Performance
Abroad] (Washington, National Planning Association, 1959).
pp. 67, 76.
(120) Tempels, P. P., Bantoe-Filosofic (Antwerpen, de Sikkel, 1946),
p. 108.
(121) Temperley, H. W. V. (ed.), A History of the Peace Con/erence of
Paris, 6 Vols. (London, Hodder and Stoughton, 1920-1924),
Vol. I, p. 195; Vol. II, pp. 233-234, 237, 239; Vol. Hl, p. 95;
Vol. VI, p. 502.
(122) Thompson, V. and Adloff, R., French West A/rica (London,
George Allen & Unwin Ltd., 1958), pp. 22-23, 44-46, 54, 80-81,
108-III, 184-
(123) Thompson, V. and Adloff, R., The Emerging States of French
Equatorial Africa (Stanford, Stanford University Press; London,
Oxford University Press, 1960), pp. 26, 34, 37-38.
(124) Toussaint, C. E., Th1:Trusteeship System of the United Nations
{London, Stevens and Sons, 1956), pp. 5-9.
(125) Townsend, E. R, Pr1isident Tubman of Liberia Speaks (London.
Consolidated Publications Co., Ltd., 1959), p. 155.
(126) Townsend, M. E., The Rise and Fall of Germany's Colonial
Empire (New York, Macmillan, 1930), pp. 363-369, 377-378.
(127) Trevaskis, G. K. N., Eritrea: A Colony in Transition: I94r-52
(London, Oxford University Press, 1960), pp. 27, 32.
(128) Vedder, H., Die Bergdama, Hamburgische Universitat: Abhand
lungen aus <lemGebiet der Auslandskunde (Fortsetzung der Ab
handlungen des Hamburgischen Kolonialinstituts), Band II,
Hamburg, L. Friederichsen & Co., 1923), 1.Teil, p. 39.
(129) Vedder, H., "The Bergdamara", in The Native Tribes of South
West A/rica (vide XXX.D.r.i, supra).
(130) Vedder, H., "The Herero", in The Native Tribes of South West
A/rica (vide XXX.D.I.i, supra).188 SOUTH WEST AFRICA
(131) Vedder, II., "The Nama", in The Native Tribes of South West
Africa (videXXX.D.r.i, supra).
(132) Vedder, H., South West Africa ùt Early Times: Being the story
of South West Africa up to the date of Maharero's death in
1890, trans.and ed. by C. G. Hall (London, Humphrey Milford,
1938). pp. 9-12, 16-17, 19-22, 26, 32-35, 45-54, 56-57, 60-69,
72-78, 107, u9-124, 126-131, 133-136, 138, 140-141, 145-147,
153-163, 175, 177-178, 180-182, 197-206, 208, 210-215, 218-219,
230, 247-:i48, 251, 255-258, 260, 263,265-271, 275-279, 288, 329,
337-338, 341-342, 344-351, 355-357, 362-364, 366-371, 373-382,
385-393, 407-448, 452-470, 478-487, 490-500, 502-504, 506-507.
(133) Vcrdross, A., Die Verfassitng der Viilkerrechtsgemeinschaft (\Vien
und Berlin, Verlag von Julius Springer, 1926), p. 51.
(134) Walker, E. A., A History of Southern Africa, Third Edition
(London, Longmans, Green and Co., 1957). pp. 273, 666.
(135) Walters, F. P., A History of the League of Nations, 2 Vols.
(London, Oxford University Press, 1952), Vol. I, pp. 64-65.
(136) Weis, P., Nationality and Statelessness in International Law
(London, Stevens & Sons Ltd., 1956), p. 50.
(137) Wheare, J., The Nigerian Legislative Council (London, Faber &
Fabcr Limited, under the auspices of Nuffield Collcge, 1950),
pp. 33, 39, 199.
(138) Wright, Q., Mandates Under the League of Nations (Chicago,
University of Chicago Press, 1930), pp. 3, 15-23, 47-48, 50,
55, 64, 87-90, 109-u2, 128, 196-197, 199-200, 226-237, 319-339,
366, 457, 460, 493-495, 536-537.
(139) Witbooi, H., Die Dagboek van Hendrik Witbooi (vide XXXIII.
B-4, infm,).
B. Titles
(1) Britannica Book of the Year r96r (London, Encyclopaedia
Britannica, Ltd., 196r), p. 144.
(2) The Cambridge History of the British Empire, 8 Vols., cd. by
J. Holland Rose, A. P. Newton and E. A. Benians (Cambridge,
University Press, 1929-1936), Vol. VIII, South Africa, Rhodesia
and The Protectorates (1936), pp. 21-26, 28-3I, 36, 39, 5I7,
694-698, 700-701.
(3) Le Code Pénal de l'Empire d'Ethiopie du 23 Juillet I957 (Paris,
le.Centre français de droit comparé, 1959), Arts. 149-151,7I (1),
pp. 70, J34.
(4) Die Dagboek van Hendrik Witbooi, Kaptein van die Witbooi
Hottcntotte, 1884-1905 (Cape Town, The Van Riebeeck Society,
1929), pp. xviii, 6-10, 12-16, 19-21, 32, 34-38, 67-71, 73-77.
(5) Declaration of Indian Purpose [Report of the American Indian
Chicago Conference, held at the University of Chicago from
13-20 June 1961], App. 1, pp. 20-22, 26-27.
(6) The Economie Development of Kenya, Report of a Mission
Organized by the International Bank for Reconstruction and
Development at the Request of the Govemments of Kenya
and the Unitr.d Kingdom (Baltimore, The Johns Hopkins Press,
for The International Bank for Reconstruction and Develop
ment, 1963), p. 37. COUNTER-MEMORIAL OF SOUTH AFRICA 189
(7) The Economie Development of Tanganyika, Report of a Mission
organized by the International Bank for Reconstruction and
Development at the request of the Governments of Tanganyika
and the United Kingdom (Baltimore, The Johns Hopkins Press,
for The International Bank for Reconstruction and Develop
ment, 1961), p. 348.
(8) The Encyclopaedia Britannica: A Dictionary of Arts, Sciences
and General Literature, Ninth Edition (Edinburgh, Adam and
Charles Black), Vol. IV (1876), pp. 767-768.
(9) Encyc!opaedia Britannica: A New Survey of Universal Know
ledge,24 Vols. (Chicago, Encyclopaedia Britannica, Inc., r947),
Vol. 8, p. 690; Vol. 14, p. 606; Vol. 20, pp. 968-969.
(ro) Ghana: A Brie/ Political and Economie Survey, Preparcd by
The Information Department RIIA, May, 1957 (Chatham
Housc l'llemoranda) [Distributed for the Royal Institute of
International Affairs by the Oxford University Press], pp. 13-14,
16.
(n) Handbook on Race Relations in South Africa, cd. by E. Hellmann
(Cape Town, Oxford University Press, for the South African
Institute of Race Relations, 1949), pp. 276-277, 280, 291.
(12) The International Labour Organisation: The First Decade (Lon
don, George Allen and Unwin [for the International Labour
Office], r93r),pp. 29-3r, 367.
{r3) International Yearbook of Education (Geneva, Intcrnational
Bureau of Education and Unesco, 1963), Vol. XXIV (1962).
pp.lix, lx, 65, Sr, 223, 320, 496; Educational Statistics, tables I
and 11.
(14) The Ituliau Colonial Empire-With Chapters 011 the Dodec
anese and Albania, Information Department Papers, No. 27
(London, The Royal lnstitute of International Affairs, 1941).
p.37.
(15) Keesing's Contemporary Archives: Weekly Diary of Important
World Events [Keesing's Publications Limited (of London)],
Vol. VII (1948-1950), p. 9354; Vol. XI (1957-1958}, p. 16546;
Vol. XII (1959-1960). p. 16793; Vol. xnr (1961-1962), pp.
18044, 18373, 19132, 19135; Vol. XlV (1963-1964), p. 19540.
(16) The Progressa/ Africans in Southern Rhodesia (Bulawayo, The
Rhodesian Institute of African Affairs, 1958), pp. 9-11.
(r7) Répertoire Permanent de Législation Egyptienne (Publié par le
Bulletin de Législation et de Jurisprudence Egyptiennes, 1952),
Vagabondage,p. II. •
{18) Resources and Needs for Training Facilities for A/ricans in
British Ajrica, Ethiopia cind Liberif.l (Washington, Ruth Sloan
Associates Inc., 1955), p. 210.
(19) The Shorter Oxford English Dictionary on Hi'storical Princip/es,
Thlrd Edition revised with Addenda, rev. and ed. by C. T. Onions
(Oxford, The Clarendon Press, 1959), p. 150.
(20) State of South A/rica: Economie, Financial and Statistical
Year-book for the Republic of South Africa (Johannesburg
Da Gama Publications Ltd.), 1962, pp. 89-90; 1963, pp. 429,
509-srn.
(2I) The Statesman's Year-Book: Statistical and Historical Annual
of the States of the World for the Year 1963, ed. by S. H.190 SOUTH WEST AFRICA
Steinberg (London, Macmillan & Co., Ltd., 1963), pp. 183, 510,
548, 914, 1389.
(22) Webster's Complete Dictionary of the English Language, New
Edition of 1880, rev. by C. H. Goodrich and N. Porter (London,
George Bell and Sons), p. III.
(23) Webster's New International Dictionary of the Englis/J Language,
Second Edition, ed. by W. A. Neilson, T. A. Knott and P. W.
Carhart (London, G. Bell and Sons; Springfield, G. and C.
Merriam, 1945), p. 15.
(24) Whitaker's Almanack, r96r [ An Alm.anack For the Year of Our
Lord r96.r, Established I868 by Joseph Wkitaker, F.S.A.j, p. 928.
(25) The Year Book and Guide to Southern A/rica: Union of South
Africa, Fcderation of Rhodesia and Nyasaland, South West
Africa, etc., ed. by A. Gordon-Brown (London, Robert Hale
Ltd.), 1961 Edition, pp. 204, 294.
XXXIV, Articles
A. Authors and Tilles
(1) Arden-Clark, C., "The changing rôle of White leadership in
tropical Africa", in Optima, Vol. 10, No. 4 (Dec. 1960), pp. 177-
183, at p. 181.
(2) Ashby, E., "African Higher Education", in Oversea Qttarlerly,
Vol. 3, ~-o. 2 (June 1962). pp. 43-45, at p. 44.
(3) Ashby, E.. "Universities undcr Siege", in Minerva, Vol. 1,No. l
(Autumn 1962), pp. 18-29.
(4) Beilby, L, "The Choice for South Africa", in The D,ûly Tele
graph, 20 Aug. 1963.
(5) Brausch, G. E. J. B., "Pluralisme ethnique et culturel au Congo
Belge", in International lnstitute of Differing Civilizations:
Ethnie ,md Cultural Pforalism in Intertropical Communities,
Report of XXXth Meeting held in Lisbon on I5, 16, 17 and
18 April 1957, pp. 243-267, at pp. 243, 245.
(6) Davies, H. O., "The New African Profile", in Foreign Afjairs:
An AmErican Quarterly Review, Vol. 40, No. 2 (Jan. 1962),
pp. 293-.302, at pp. 297, 300.
(7) Eiselen, W. W. M., "Js Separation Practicable?", in Journal of
Racial Afjairs, Vol. 1, No. 2 (Jan. 1950), pp. 9-18, at pp. 13-14.
(8) Eiselen, W. W. M., "Harmonious multi-community develop
incnt", in Optima, Vol. 9, No. 1 (Mar. 1959), pp. 1-15, at pp. 1-3.
(g) Foster, P. J., "Ethnicity and the Schools in Ghana", in Com
parative EducationReview, Vol. 6, No. 2 (Oct. 1962), pp. 127-135,
at pp. 1·z8-130,134.
(10) Furukaki, P.T.. "Nature juridique des mandats internationaux
de la Sociétédes Natfons", in Bibliothèque Universelle et Revue
de Genève(July-Dec. 1926), pp. 381-390, at p. 385.
(II) Gannet, H., "Modem History and Present Distribution of
North American Indians", in The Encyclopaedia Britannt'ca:
A Dictionary of Arts, Science, and General Literature, Ninth
Edition {Edinburgh, Adam and Charles Black), Vol. XII (1881),
p. 830.
(12) Gibson, G. D., "Double Descent and lts Correlates among the COlJNTER-MEMORIAL OF SOUTH AFRICA 191
Herero of Ngamiland", in American Anthropologist, Vol. 58,
No. l (1956), pp. 109-139.
(13) Gray, W., "Canada's Indian Problem", in Rand Daily Mail,
S May 196r.
(I4) Hall, H. D., "The Trusteeship System", in The British Year
Book of International Law, Vol. XXIV (1947), pp. 33-71, at
pp. 44-46.
(15) Hempstone, S., "Partition-A Solution for South Africa", in
Chicago Daily News (9 Sep. 1963).
(16) Hodson, H. V., "Where America and Britain agree and disagree
about Africa", in Optima, Vol. 12, No. 4 (Dcc. 1962). pp. 171-175,
at p. 173.
(17) Hoernlé, R. F. A. (A. W.), "The Expression of the Social Value
of Water among the Nama of South West Africa", in The Sout/J
A/rican Journal of Science, Vol. XX (1923), pp. 514-526.
(18) Hoernlé, A. W., "The Social Organization of the Nama Hottentots
of Southwest Africa", in American Anthropologist, New Series,
Vol. 27 (1925) [reprinted by Kraus Reprint Corporation, New
York, 1962], pp. 1-24.
(19) Houghton, D. H., "Africa through American eyes", in Optima,
Vol. 13, No. 3 (Sep. 1963), pp. 1rn-n5, at p. II2.
(20) Hudson, M. O., "The Twenty-nüith Year of the World Court",
in The American Journal of International Law, Vol. 45 (Jan. 1951),
pp. 1-36, at pp. 13-15.
(21) Jcnnings, R. Y., "The International Court's Advisory Opinion
on the voting procedure on questions concerning South \Vest
Africa", in Transactions of the Grotius Society, Vol. 42 (1956),
pp. 85-97, at p. 92.
(22) Kôhler, O., "The Stage of Acculturation in South West Africa",
in Sociologus, Vol. 6, No. 2 (1956), pp. 138-153, at p. 138.
(23) Korowicz, M. St., "The Problem of the International Pcrsonality
of Individuals", in The American Journal of International Law,
Vol. 50 (1956}, pp. 533-562, at pp. 536, 561.
(24) Krogh. D. C.,"The i\'ational Income and Expenditure of South
West Africa (1920-1956)", in The South African J oumal of Eco
nomies, Vol. 28, No. I (Mar. 1960), pp. 3-22, at p. 8.
(25) Lewis, W. A., "Education and Economie Development", in Over
sea Quarterly, Vol. 2, No. 8 {Dec. 1961), pp. 232-236, at p. 233.
(26) Marshall, L., "Marriage among !Kung Bushmen", in A/rica,
Vol. XXIX, No. 4 (1958), pp. 335-365, at p. 336.
(27) McNair, A. D., "Mandates", in The Cambridge Law Journal,
Vol. III, No. 2 (1928), pp. 149-160, at p. 157.
(28) Mossolow, N., "Eingeborene in Windhoek", in Der Kreis, Heft 12
(Nov. 1959), pp. 435-441, at p. 435.
(29) Neqniq, M., "The most urgent nceds in the expansion of Ethio
pian Education", in EthiopiaObserver, Vol. II, No. 4 (Mar. 1958),
pp. 138-139.
(30)Nisot, J.,"The Advisory Opinion of the International Court of
Jusbce on the International Status of South West Africa", in
The South African Lliw Journal, Vol. 68, Part 3 (Aug. 1951),
pp. 274-285, at pp. 279-28r.
(3r) Odunukwe, C., "Education in a Dynamic Society", in West192 SOUTH WEST AFRlCA
A/rican J oumal of Education, Vol. 2, No. 3 (Oct. 1958), pp. 91-94,
at p. 93.
(32) Perham, M., "A Re-Statement of Jndirect Rule", in Africa:
Journal of the International Institute of African Languages and
Cultures, Vol. Vil, No. 3 (July 1934), pp. 321-334, at p. 321.
(33) Perham, JL, "The psychology of African nationalism", in Optima,
Vol. ro, No. 1 {Mar. 1960), pp. 27-36, at pp. 27-30.
(34) Potter, P. B., "Origin of the System of .Mandates under the
League of Nations", in The American Political Science Review,
Vol. XV1, No. 4 (Nov. 1922), pp. 563-583.
(35) Randall, C. B., "South Africa Needs Time", in The Atlantic
Monthly (May 1963), p. 80.
(36) Rappard, W. E., "The Mandates and the International Tmstee
ship Systems", in Varia Politica (Zurich, Editions Poligraphiques
S.A., 1953), pp. 18l-190, at pp. 182, 184.
(37) Renison, P.,"The challenge in Kenya", in Optima, Vol. 13, No. I
(Mar. 1963), pp. 8-16.
(38) Rotin, H., "Le Système des Mandats Coloniaux", in Revue de
Droit lntemational etde LégislationComparée,Vol. XLVII (1920),
No. 1, pp. 329-363, at pp. 356-357.
(39) Rostow, W. W., "The Take-Off into Self-Sustaincd Growth", in
The Economie journal, Vol. LXVI, No. 261 (Mar. 1956), pp. 25-
48, at p. 27.
(40) Scanlon, D. G., "Education and Social Change in West Africa",
in Teach.rrsCo/legeRecord, Vol. 56, No. 3 {Dcc. r954), pp. 129-134,
at p. 134-
(41) Shack, \V. A., ''Organization and Problems of Education in
Ethiopia", in The Journal of Negro Education, Vol. XXVIII,
No. 4 (Fall, 1959), pp. 405-420, at pp. 405, 416.
(42) Silbcrman, L., "Ethiopia Elects", in The Listener (14 Nov. 1957),
(43) Stafford, W., "The Walla \Valla fight for their lands", in The
Natal D:iily News, ro Nov. 1954, p. 9.
(44) Van Asbeck, F. M., "International Law and Colonial Adminis
tration", in Transactions of the Groti'usSociety, Vol. 39 (1953),
pp. 5·3?",at p. 14.
(45) van Heerden, W., "Why Bantu states?", in Optima, Vol. 12,
No. 2 (June 1962), pp. 59-65, at p. 60.
(46) Wagner. G., "Sorne Economie Aspects of Herero Life'', in African
Studies, Vol. 13, No. 3/4 (1954), pp. n7-130. at pp. n8-n9.
(47) Wellington, J. H., "A tentative Land Classification of Southern
Africa", in The South A/rican GeographicalJournal, Vol. XXXV
(1g53), pp. 16-25, at p. 17.
(48) Williams, J. F., "The status of the League of Nations in Inter
national Law", in lnternaHonai Law Assoûati"on, Report of the
3,;.thCon/erence (1926), pp. 675-695, at pp. 688-689.
(49) Worsthorne, P., "Black and White Reality", in The Sunday
Telegra1Jh,19 May 1963.
B. Titles
(1) "The Congo on the Road to Democracy", in The Belgian Congo
Today, Vol. VIII, No. 3 (July 1959), pp. 9-12, at p. 9· COUNTER-MEMORIAL OF SOUTH AFRICA
193
(2)"The Constitution of 1955'', in Ethiopia Observer, Vol. V, No. 4
(r962), pp. 366-377, at p. 375-
(3) International Association of Universities, Bulletin, Vol. X, No. 4
(Nov. 1962), p. 254.
(4) "Why no integration for the American lndian", in U.S. News G
World Report, Vol. LV, No. IO (2 Sep. 1963), pp. 62-66.
XXXV. Theses
(1)Lemmer, C. J. C., Onderwys in Suidwes-A/rika: 'n Verhandeling oor
Naturelle en veral Blanke Onderwys in die Mandaatland Suidwes
Afrika (vroeër "Deutsch Suedwest-afrika") van die vroegste tye tot
1932 (Unpublished D. Phil. Thesis, University of South Africa, 1934),
pp. l, 3·4, 31, 33·34, 36..37, 39, 40-44, 72-73, 73 bis, 74-76, 78-80,
86-89, 99-100, 108, 114-u5, 120-123, 129-130, 133, 138-139, 157-159,
162-166, 176.
(2)Schuttc, C. H. J.,Kleurlingonderwys in Suidwes-A/rika (Unpublished
M. Ed. Thcsis, University of South Africa, 1942), pp. 14, 17-18, 20-21.
XXXVI. Unpublished Archivai Sources
A. Cape Archives Depot
Archives of the Secretary of Native Afjairs, Cape Colony.
N.A. 287: Pa/grave to Capt. Jacobus Isaac etc., 19 Dec. 1877.
Pa/grave toSecretary for Native Afjairs, 31 Jan. 1878.
Rhenish Missionaries to Pa/grave, 25 Aug. 1878. Manning toPal
grave, 22 Oct. 1879.
N.A. 288: Musgrave to Secretary for Native AfJairs,·9 June 1880.
Pa/grave to Bright, 13 June 1880. ·
OfficialJ ournat of the Secretary of the Transgariep Commission,
Minutes. 21 Sep. 1880.
I rlc to Palgrave, 20 Dec. 1880.
N.A. 290: Resident Magistrale Whindus, Walfish Bay, to Under-Secre
tary for Native A(jairs, 4 Jan. 1883, p. 3.
Petition of P. Haibib for annexation of rest of his territory, 5 Jan.
1883.
Whindus to Under-Secrelary for Native Afjairs, 6 Jan. 1883, pp, 3-6.
Hermanus van Wyk to Resident Magistrale, 31 Jan. 1883.
Resident Magistrate Simpson toA ndries Lambert, IO Sep. 1883.
Resident Magistrate Simpson to Under-Secretary for Native Afjairs,
II Oct. 1883.
N.A. 29r: Resident Magistrate Simpson to Under-Secretary for Native
Affairs, 1 May 1884, pp. 1-3, n-12.
N.A. 293: Resident Magi'strate, Walfish Bay, to Cape Government,
25 Sep. 1889.
Resident Magistrale, Walfish Bay, to Cape Government, II Oct. 1890.
N.A. II36: Hermanus van Wyk to Maharero, 6 Nov. 1878.
B. Carnegie Library, Stellenbosch
Quel/en zur Geschichte von Südwesta/rika (30 Vols.)
Vol. 1: Chronik Otfimbingwe, 1850, p. 17; 1860, pp. 39-40; 1863, pp.
47-49; 1864, pp. 54-55; 1867, p. 67; 1880, pp. 99-102.
Vol. 4: Report by]. Bam, Bethanie, 13 Nov. 1884, pp. 44-45.194 SOUTH WEST AFRICA
Vol. 6: Report by E. Heider, Hoachanas, 3 Jan. 1881, p. 61.
Vol. 7: Report by F. Judt, Okahandja, 14 Sep. 1880, p. 40.
Vol. n: Report Ôj'G. Kronleùt, Berseba, r6 Mar. r86r, p. 299.
Vol. 15: Letter by H. van Wyk, Rehoboth, 1 Jan. 1878.
Vol. 17: Report by F. Ri,st, Gibeon, 6 Jan. 1881, p. 13.
Vol. 19: Report by F. Rust, Gochas, 4 Jan. 1894, p. 28.
Vol. 20: Diary, Kleinschmidt, Jun., 1864, p. 134.
Vol. 21: Reports by F. Heidmann. Rehoboth, 27 Apr. 1878, p. 137;
14 Sep. 1880, pp. 155, 157-158; 9 June 1881, p. 206.
Vol. 22: Repo1'tby F. Heidmann, Rehoboth, 24 Oct. 1884, p. 300.
Heidmann toBohm, 15 Aug. 1889, pp. 349-351.
Vol. 27: Letter by F. Meyer, Otjikango (Barmen), 19 Dec. 1880, pp. 6-7.
Reports by F. Meyer, Otjikango, 23 Feb. 1883, p. 35; 9 Oct. 1884,
p. 60.
Letter by Ph. Diehl, Okahandja, 19 Apr. 1886, pp. 102 -103.
Vol. 28: Diary, F. Kolbe.,Jan.-Apr. 1851, p. 28.
Diary, Station Okahandja, Dec. 1881, p. 4.
Report by lV. Eich, Okahandja, 24 Apr. 1886, pp. 52-56.
Vol. 29: Report by F. Rust, Berseba, II July 1888, p. 170.
C. Archives of South West Africa, Windhoek
Part Il of File No. A. 50/35.
XXXVII. Affidavits
(1) Affidavit of G. H. Olivier, Registrar of Deeds, South West Africa.
(2) Affidavit of E. E. Smith, Surveyor-General, South West Africa.
XXXVIII. Letters
(r) Kerina to Kaj,uuo, 30 Apr. 195·9.
(2) Kerina to Muundjwa, 5 Mar. 1959.
(3) Kozonguizi to Louis Nelengani, 12 Oct. 1959.
{4)Kerina toSam Nujoma, I6 Sep. 1959; 25 Sep. 1959: 17 Oct. 1959:
9 Dec. 1959.
(5) Kozonguizi to Sam Nujoma, 14 Sep. 1959.
(6) Kerina to Toivo fa Toivo, 9 Feb. 1959; 14 Feb. 1959; 2I Apr. 1959;
17 Nov. 1959.
XXXIX. Newspapers
(r) Agence Franc.: Presse, Africa South of the Sahara, No. IOI2, 2I Oct.
1963.
(2) Die Burger, 4 Dec. 1925, pp. 7-8.
(3) The Eveni'ng Post {New Zealand), 4 Dec. 1962.
(4) Jlanga Lase Natal, 19 Nov. 1955, p. r5.
(S)The Natal Mercury, 14 Mar. 1963.
(6) The Pretoria News, 16 Dec. 1963, p. r.
(7) The Star, r Dec. 1954, p. 9; 22 Sep. 1962; 15 Nov. 1962, p. 21;
28 Nov. 1962; II Dec. 1962, p. 7; 23 Feb. 1963.
(8) Die Transvaler, 19 Aug. 1955, p. 7.
XL. Map
Sheet 6 of Jeppe's Map of the Transvaal or South African Republic and
Surrounding Territories. COUNTER-MEMORIAL OF SOUTH AFRICA
XLI. Other
(1) Articles of Association of New South We~t Africa Native Labour
(Proprietary) Limited-Nuwe S.W.A.N.L.A., pp. 6-7.
(2) Deposition of KiUhe von Loben/elder, 2 Feb. 1956.
(3) Statement of Silas Fikameni Ifumbu in regard to the detribalization
of Ovambo labourers.
(4) The Summit Conference of Independent African States, Resolutions,
OfficialText, SUMMIT, CIAS/Plen. 2/Rev. 2, 25 l'lfay 1963, pp.r-2. SUPPLEMENT TO THE COUNTER-MEMORIAL
INTRODUCTORY
I. In Books IV and V of the Counter-Memorial, reference was made
1
to a Commission of Experts which had been appointed to investigate
the conditions of the inhabitants of South West Africa, and particularly
the non-vVhite inhabitants, and to make recommendations in respect of
their further advancement 2•In this regard it was stated, inter alia:
"The report of this Commission has been due for some months now
and is expected to be published in the very near future. Unfortun
ately it bas not become available at an early enough stage to be dealt
with in this Counter-Memorial. In so far as its recommeridations, and
the Respondent Government's reactions thereto, will be relevant to
the matters concemed in tltls case, Respondent will at a subsequent
stage take the necessary steps, with the leave of the Court in so far
as necessary, to present such information to the Court for its
consideration 3."
The Commission's report 4 was tabledin Parliamenton 27JanuaryI964,
and on 29April r964, the Respondent Government tabled a memorandum
setting out its attitude towards the Commission's recommendations 5•
On 8 May I964 the House of Assembly of the South African Parlia
ment passed a resolution expressing approval of the Govemment's
decisions contained in the memorandum.
2. The Odendaal Commission's report incorporates a comprehensive
survey of the past development of and present conditions in South West
Africain the fields of government, economy, education and other aspects
of political, social and material well-being. In addition it contains the
Commission's recommendations, together with argument in support
thereof, regarding the future development of the Territory. It is parti
cularly to these latter aspects of the report that the memorandum is
direct~d, setting out the Government's policy and contemplated course
of act10n pursuant thereto.
It will be apparent, therefore, that these two documents are relevant
to some of the major issues in the present proceedings, and in particular
to those relating to the allegcd violations of Article 2 of the Mandate.
Inasmuch as their publication has corne after the filing of the Counter
Memorial, it seems that full analysis and discussion of their contents and
significance may have to await the Oral Proceedings. However, with a
view to facilitating reference and discussion, whether in the further
pleadings or in the Oral Proceedings or in both, Respondent now wishes
1 Officially designated the Commission of Enquiry into South West Africa
Affairs, and commonly referred to as the Odendaal Commission.
2 Vide Counter-Memorial, Book IV, Chap. VII, para. 35; Book V, sec. C,
Chap. III, para. 33; sec. E, Chap. I, para. 106.
3 Ibid., Book IV, Chap. VII, para. 35.
4 R.P. No. 12/1964.
5 For convenicnt reference this memorandum is reprinted as Annex A to this
Supplernent. SOUTH WEST AFRICA
to introduce the ~id report and memorandum formally to the record
as relevant documents, and to provide a brief guide to their more salient
parts. Main features only are mentioned, and only by way of brief sum
mary.
To enable members of the Court to find passages in the Commission's
report and in the memorandum on any of the more important matters
that have also n:ceived attention in the Counter-Memorial, Annex B
hereto contains a comparative table correlating the contents of these
three documents.
Govemment and Citizenship
3. The Commission recommended that homelands be constituted as
self-governing areas for several non-White groups 1, The Government's
attitude in this regard is set out in the following passage from the memo
randum:
"The Gov,~rnment wishes to state clearly once again that its
general attitude ... inter alia, involves agreement with the Com
mission's finding that the objective of self-determination for the
various population groups will, in the circumstances prevailing in the
Territory, not be promoted by the establishment of a single multi
racial central authority in which the whole population could poten
tially be represented, but in whichsome groups would in fact domina te
others. (Report, p. 55, paras. 183 to 190.) The Government also
endorses the view that it should be the aim, as far as practicable, to
develop for each population group its own Homeland, in which it can
attain self-determination and self-realization. (Report, p. 55, para.
190.) The Government moreover accepts that for this purpose
considerable additional portions of the Territory, including areas
now owned by White persans, should be made available to certain
non-White groups. And it shares the view that there should be no
unnecessary delay in taking the next steps in regard to this impor
tant aspect ofthe development ofthe population groups concerned 2."
However, by r.eason, inter alia, of considerations pertaining to the
present proceedings, the Govemment refrained from taking any imme
diate decisions in regard to the Commission's concrete proposais for
constituting parts of the Territory as self-governing homelands for various
non-White group; 3•This applies also to other recommendations insepa
rably connected with the homelands plan, such as, for example, those
relating to new councils for local self-government of the non-White
4
inhabitants of towns and townships in the White areas •
Development Projects
4. The Commission recommended a five-year plan involving extensive
development projects in the economic and social spheres. The projects
' Vid~ Report, pp. 81.107,paras. 298·416.
2 Vide Annex A, para. 21, infra.
3 Ibid., paras21 and 22.
<IIbid., para21. COUNTER-MEMORIAL OF SOUTH AFRICA r99
which the Govemment has decided should be implemented as soon as
possible 1 relate to the following main subjects:
(a) The supply of water and electricity, inducting the Kunene scheme
for the supply of water to Ovamboland and of electricity to the
northern and central areas of South West Africa 2•
(b) The improvement of transport facilities, and, in particular, roads
and air services, as a means towards further economic development
and expansion of social and health services 3•
(c) Development of the mining industry and encouragement of in-
creased participation therein by non-White inhabitants 4.
(d) lndustrial development, especially in Native areas 5•
(e) Improvement of agriculture in Native areas 6.
(/) lmprovement of educational services, particularly for non-White
inhabitants 7•
(g) Improvement of health services, particularly for non-White in
8
habitants •
(h) Purchase of White-owned farms and town properties for possible
future incorporation in homelands, and for a settlement scheme
9
for Coloured persans •
The cost of this five-year plan will, in the Commission's estimate, exceed
1
R150 million ( /;75 million) 0.
Administrative and FinanciaJ Arrangements
5. The Commission recommended a reorganization of administrative
functions as between organs of the Territory and those of the Republic
11
of South Afr:ica, as well as concomitant changes in financial relations •
In making these recommendations, the Commission was influenced by
the nature and extent of the new phase of development envisaged by it,
by the resultant advisability of making use of the Republic's facilities
in the fields of expert guidance, technical knowledge and effective plan
ning, as well as of its financial resources, and by the desirability of elirni
nating over1apping of fonctions and responsibility 12•
The Government expressed îts belief-
"that doser investigation will confirm that the major development
projects contemplated, particularly in the interests of the non-White
population groups, can be carried out to the best advantage through
1 Annex A, para. 6.
2 Ibid., para. 7.
3 Ibid., para. 8.
• Ibid., para. 9.
5 Ibid., para. w.
6 Ibid., para. 1r.
1 Ibid., para. 12.
8 Ibid., para. 13.
9 Ibid., para. 14.
10 Ibid., para. 23.
11
Vide Report, pp. 61-63, paras. 214-225 and 229-235, and see also, foc example,
p. 263, paras. 1wz-no3; p. 309, paras. 1283 (3)-(5); p. 377, introductory part of
para. 1368; p. 455, paras. 1479-1480.
12 Vide in particular Report, p. 61, paras. 215-220.200 SOUTH WEST AFRICA
greater financial and administrative contributions thereto from
the Republic, of the nature envisaged in the recommendations 1".
However, the Govemment decided-
"that it cannot take general decisions on either the new administra
tive or the new financial arrangements before full details have in
both cases been carefully worked out, in order to determine what
every change ·willinvolve and, particularly, the precise manner in
which every changeovcr will be effected in practice 2".
A Committee of Experts will therefore be appointed to consider the
detailed aspects of the Commission's proposais in this regard, which are,
in any evcnt, also affected by considerations concerning the present
proceedings 3•
Pending the report of the Committee of Experts and the conclusion
of the present proceedings, the existing administrative and financial
arrangements will continue subject to ad hoc adaptations to meet
special circumstan-:es 4•
(Sgd.) R. McGREGOR.
(Sgd.) J. P. VERLOREN VAN THEMAAT.
Agents of the Government of the
Republic of South Africa
1 Vide Annex A, para. 21, infra.
2 Ibid., para.15.
l Ibid., paras.21 and 22.
• Ibid., paras.24 to 27.Annexes to the Supplement to the Counter-Memorial filed by the Govern
ment of the Republic of South Africa
Annex A
DECISIONS BY THE GO\'ERK\1ENT ON THE RECO.MMENDATIONS OF THE
COMMISSION OF ENQUIRY INTO Souni WEST AFRICA AFFAIRS
With refercnce to the Report of the Commission of Enquiry into South
West Africa Affairs, the Government desires to announce:
(a) its attitude regarding the future course of development recom
mended by the Commission ;
(b) its decisions regarding projects to be undertaken immediately; and
(c) its approach to the other recommendations, on which, for some
reason or other, decisions are not being taken immediately.
To begin with, the Government's reasons for appointing the Com
mission arc briefly outlined.
A. THE REASONS FOR THE APPOINTMENT OF
THE COMMISSION
r. Throughout the period of administration of South West Africa by
the South African Government-now in excess of 40 years-policy
relating to the government of the Territory has been founded on the
principles-
(a) that full power of administration and legislation over the Territory,
as an intcgral portion of South Africa, is vcsted in the South African
Government, with the power to apply the laws of South Africa to
the Territory, subject to such local modifications as circumstances
may require; and
(b) that the South African Government's administrative and legislative
powers are exercised for the purpose of promoting to the utmost the
material and moral well-being and the social progress of the inhabi
tants of the Territory.
These principles were also fondamental to the provisions of the Man
date in respect of South West Africa.In spitc of the Government's view
that the Mandate has in Iaw ceased to exist, its policy has always been,
and sti!J is, to proceed with the administration of the Territory on the
basis of these principles.
2. ln order better to perform their duties of administration and
development, successive Governments have in the past found it necessary,
when faced with probiems concerning the administration of South West
Africa or when deeming it opportune to embark upon a new phase of
development, to appoint commissions of enquiry to furnish the Govern
ment with expert advice. During the period of administration of the
Territory more than 70 commissions have investigated a great variety of
matters, some with a wider and others with a more restricted ambit, and202 SOUTH WRST AFRICA
in pursuance of their recommendations constant progress has been made
in the developmen t of the Terri tory.
3. The appointment of the present Commission arose from the Govern
ment's view that the time was ripe for a far-reaching new phase of
development in South West Africa. Although impressive progress had
in the past been made in practically every sphere, as is evident also
throughout the Commission's report, this had occurred in the face of a
number of adverse circumstances beyond the Govemment's control,
which had in some instances retarded development of the Territory and
its inhabitants and in others even caused setbacks thereto. Included in the
latter class of circumstances were several exceptionally severe droughts,
the economic depression of the thirties and the Second World War. In the
formerclass there were the basic problems arising from the necessity of
building up a modern economy in a territory with very limited available
resources: for this was the main method by which funds could be provided
for programmes of advancement of the indigenous population, which at
the inception of the manda tory administration was for the most part on a
very low Ievel of development. South African Govemments, although
under no obligation in terrns of the Mandate to do so, made considerable
contributions from their own funds to the development of the Territory,
as also appears from the Commission's report (e.g., p. 325, para. 1293).
However, by reason, inter alia, of the need for development in South
Africa itself, there were limits to the assistance which could be rendered
to South \Vest Africa. Furtherrnore, progress in the educational, social
and political spheres was in the past greatly retarded by relative lack of
foterest and co-opcration on the part of members of the indigenous non
White groups.
4, Considerable changes have, however, taken place in the above
mentioned limiting circumstanccs, particularly during the last 10 to 15
years. The great progress which has been made in developing the Terri
tory's economy, coupled with the economic upsurge in the Republic
itself,has rendered more funds potentially available for intensive ad
vancement projects. An awakening of interest in political, social and
educational matters began to manifest itself amongst the non-White
groups of South West Africa, with the result that on the foundations
previously laid by the authorities, standards could be raised at an in
creased pace. It b in these circumstances that the Government considered
that the time was ripe for a considerable acceleration in co-ordinated
planned developrnent and advancement in ail spheres. The Commission,
which consisted of experts from outside the political arena, was ac
cordingly appointed, as expressed in its terrns of reference, "to enquire
thoroughly into further promoting the material and moral welfare and the
social progress of the inhabitants of South West Africa, and more
particularly its non-White inhabitants", and pursuant to such enquiry
to prepare "a comprehensive five-year plan for the accelerated develop
ment of the various non-White groups". The Commission has completed
its task and its report was tabled o27 January 1964.
B. THE GOVERNMENT'S ATTITUDE CONCERNING THE
FUTURE COURSE OF DEVELOPMENT
5. The Government appreciates the contents of the Commission's
report, not only on account of the valuable compilation and arrangement COUNTER-MEMORIAL OF SOUTH AFRICA 203
of data comprised in it, but also in view of the general purport of the
argument and recommendations. Due regard being had to what /ollows
hereinafter, the Government accepts the report in broad prfociple.
This decision does not imply that the Government identifies itself with
every detailed aspect of the argument, nor that it has already decided, or
will now decide, upon the acŒptability of every particular recommenda
tion. It does mean, however, that the Government accepts the main
features of the argument and recommendations as an indication of the
general course to be adopted in the next phase of the development of
South West Africa and of the promotion of the well-being and progress
of its inhabitants.
Pursuant to this general attitude, the approximately 475 recommenda
tions of the Commission will be dealt with as falling into three categories,
namely-
(a) recommendations concerning projects to be undertaken immedi
ately, and on which the decisions hereby announced have conse
quently been taken;
(b) recommendations concerning matters of such a purely administra
tive nature that the authorities responsible for their implementation
will have to take decisions thereon as the occasion arises; and
(c) recommendations on which no decisions are taken at this stage
in that they are advanc:ed by the Commission as being for future
consideration, or that the time is not considered opportune for
their implementation, or for other reasons, and conceming which
the Government will announce its intentions to the country and to
Parliament in an appropria te manner when a decîsion on implemen
tation is taken.
C. DECISIONS HEREBY ANNOUNCED
6. The Government is finnly convinced that certain recommended
projects are basic to further development and should be executed imme
diately and on a large scale. Sorne of these projects are directed at the
economic benefit of and service to ail the inhabitants of the Territory,
others have as their object the special benefit of and service to particular
communities or groups, especially non-White groups. The Government has
decided that implementation of such profects is to commence immediately,
and that they are to be brought to completion with the least delay possible.
Examples of projects included in this immediate programme, and there
fore covered by the decisions conceming implementation, are given in
the following paragraphs 1.-
Supply of Water and Electricity
7. The Commission regards the generation of electricity on the Kunene
as the most important contribution which the State could make towards
1 The exposition concerns only the contents of the projects; questions of procedure,
control and financial arrangements are dealt with later (particularlyin para
graphs 24 to 27 hereunder). Moreover, only the broad outlines are indicated: some
of the detailedaspectare subject to further consideration and possible adjustment,
mostly in the course of administrativaction.204 SOUTH WEST AFRICA
the further economic development of South West Africa. (Report, p. 447,
para. 1473.)
The Commission a1so points out that it lS the greatest single contri
bution that can be made at this juncture to the general progress of
particularly the northern areas, where the concentration and increase of
population are the greatest. (Report, p. 439, para. 1464.) Complementary
to the supply of electricity, and associated with it, is the satisfaction of
the urgent need for a more regular water supply for man and beast. It if.
consequently at these objectives that the greatest single item of expen·
diture within the framework of the Commission's recommendations is
directed.
The following projects, requiring an estimated total expenditure of
R72,300,ooo, are included under this head:
(a) the completion of the E taka section of the canal scheme for the
supply of waŒr in Ovamboland, at an estimated cost of R300,ooo,
as proposed in an interim rccommendation of the Commission and
already undertaken by the Government last year (Report, p. 495,
paras. 1532 and 1533);
(b} the first five-year plan for the supply of water and electricity, which
includes:
(i) the Kun,~ne Scheme, at an estimated cost of R49 million for the
supply of electricity to the northern and central areas of South
West Africa (Report, pp. 449-451, para. 1476 A (1));
(ii) the further development of the Ovamboland Canals Water
Supply Scheme (linked with the Kunene Scheme), at an
estimated cost of R4 million. Strategically located canals and
pipeline~, will traverse the more densely populated areas.
(Report, p. 45r, para. I476 A (2).) One of the most jmportant
reasons for the purchase of power from Mata.la, and for the
consequent erection of a power line from that point to the
Ovamboland border (a part of the Kunene Schemc), is that
electric power could thus be made available fairly soon for
pumpin~: water from the Kuncnc to Ovamboland {p. 449,
para. 1476 A (1) (i));
(iii) a number of dam projects for the supply of water to the Namas,
Damara3 and Hereros, and also to the towns of Windhoek and
Keetmanshoop, at an estimated totaI cost of R16,100,ooo
(Report, pp. 451-453, para. 1476 A (3)-(8));
(iv) boreholes and small dams in several Native Reserves, at an
estimaü:d total cost of R1,550,ooo (Report, p. 453, para.
1476 A (9)); and
(v) an Irrigation Scheme for the Orange River Settlement for Co
loured persons, at an estimated cost of R1,350,ooo (Report,
p. 453, para.1476 A (10)and p. 109, para. 422).
In the process of development several difficulties will have to be ironed
out; for example, certain final arrangements concerning the Kunene
Scheme are now being made with the Portuguese authorities. As the
Commission itself indicates, some other matters within the framework of
these projects will also require further consideration. COUNTER-MEMORIAL OF SOUTH AFRICA 205
Transport
8. (a) Roads.
The Commission emphasizes that, in order to give effect to several
important recommendations concerning the development of South \Vest
Africa, it is imperative that adequate roads, as indispensable communi
cations, be constructed as soon as possible. (Report, p. 377, para. 13GS.)
Apart from the roads which are to be constructed in the normal course
of development by the Administration of South West Africa, the following
roads will, in accordance with the Commission's recommendations, be
taken in hand:
(i)Main Roads: Twelve roads fall under this head, five of which will be
provided wholly or partly with a tarred surface. Sorne of these roads
will serve as main links within South West Africa itself, others as
main links between the Territory and the Republic of South Africa.
(See also para. 20 of this memorandmn in regard to the proposed
connccting road bctwcen R.untu and Katirna Mulilo.) The total
estimated cost of these roads is R.32,500,000. (Report, p. 477, para.
1501 (d).) This amount is additional to the sums reflected in the
summary of estîmated costs of the first five-year plan, as set out in
paragraph 1509 of the report (p. 481).
(ii) Internat Roads; Provision is made under six heads for the construc
tion of 700 miles of roads as internai connecting links in non-White
areas, at a total cost ofRS,400,000. (Report, p. 377, para. 1370, and
p. 48r, para. 1509 (8).) ln accordancc with the existing administra
tive arrangement, the Dcpartrnent of Santu Administration and
Developmcnt will, at lcast for the prcsent, have to assume responsi
bility for these roads.
The cstimated expenditurc on roads to be constructcd under the fivc
year plan will therefore amount to almost R41 million.
During the past ten ycars the Administration of South West Africa has
undertakcn an extensive road construction programme, the annual
estimates under this sub-head amounting to approximatcly R7 million
in 1963. (Report, p. 373, para. 1343.) In addition to the programmes
referred to in sub-paragraphs (i) and (ii), the Administration of South
West Africa will in the future continue with its road construction pro
gramme, although on a smaller scale, in as much as some of its normal
tasks will now be included in the programmes under (i)and (ii).
(b) Air Services.
The Commission points out that distances in South West Africa are
vast and that the Territory is sparsely populatcd. Even where g!:!odr.oads
are available, travel by roacl is time-consuming. Moreover, within the
framework of the major road construction programme, several years will
probably elapse before some regions are served by aclequate roads.
(Report, p. 387, para. 1374.) In order to expedite the first phase of
developmcnt, suitable airficlds at certain points are thercfore urgcntly
required. (Report, p. 495, para. 1537.) Similarly, certain proposed ser
vices, inter alia, in the field of health, cannot be made available forthwith
to the population groups concerned unless air service facilities arc
extended without delay. (Sec para. 13, below.)
The programme for the construction and extension of airfields, on:rn6 SOUTH WEST AFRICA
which the Govermnent has decided in accordance with the Commission's
recommenda tions, includes-
{i) Principal Aùfields: Sixteen airfields are included under this head,
three of which, namely those at Ruacana, Grootfontein and Wind
hoek, are th1;:most urgently required. (Report, p. 391, para. 1375
(a) and (b) and p. 389, para. 1374 (3) (a).)
(ii) Secoiidary A·irfields, wliich are necessary for the services to be
rendered by medical practitioners and govemment officiais. These
airfields can also be used for emergency landings by airerait which
normally use the principal airfields. Thirty-one such secondary
airfieldsare contemplated. {Report, p. 391, para. 1375 c) and p.
389, para. 1374 {3)(b).)
(iii)Private Airfields and Emergency Landing Strips: Jn respect of
defined private airfields (according to the Commission there arc
approximatel.y 60 such airfi.elds)a maintenance grant will be made.
(Report, p. 391, para. 1375 (d) and para. 1374 (3) (c).)
An arnount of R3 million is reflectcd in the five-year plan as the direct
contribution of the Republic to this programme. (Report, p. 481, para.
1509.) The total cost will naturally be much higher (Report, p. 481, para.
1509). and the Republic will consequently make further contributions
thereto by assisting in the provision of add.itional funds.
(c) Railways.
The Commission finds that South \Vest Africa is well served with rail
and road transport services. For example, during the last ten-and-a-half
year period alone R72 million was spent on modemizing and improving
the railway system. The value of rolling stock, excluding locomotives, at
present in service is R33 million. Itwas not necessary for South West
Africa itself to find any portion of these amounts, totalling Rro5 million.
(Report, p. 381, para. I373 {2)(a) tiii).)
The capital investment was made in spite of large working losses. The
accumulated loss for the period 1 April 1922 to 31 March 1963, amounted
to R51,380,808. (Report, p. 385, para. 1373 (6).)
The Commission recommends that the split tariff at present applicable
to South West Africa be abolished and a uniform tariff system introduced.
It contempla tes that implementation of this proposai will have the effect
of increasing the annual working losses by R1 million to R3,500,ooo.
(Report, p. 475, para. 1501 (1) (b).) The Commission further recommends
that this loss should be borne by the Republic as an annual subsidy or
contribution to the cconomic development of the population of South
West Africa {Report, p. 459, para. 1483). The Commission's recommen
dations in both of the said respects form an integral part of its proposais
for new financial and administrative relations between the Tcrritory and
the Republic-a matter on which the Govemment, for the reasons set out
in paragraphs 15 and 20 to 22 of this memorandum, is taking no decision
at this stage. Pending such decision the Government nevertheless wishes
to leave no doubt, and therefore now announces, that in the event of
fiscal and administrative reorganization as contemplated by the Com
mission, the above recommendations regarding railway matters will be
implemcnted-and even the accumulated capital losses could be written
off-in ail cases subject only to administrative considcration at the
relevant stage and adjustment, where necessary, of matters of detail. COUNTER-MEMORIAL OF SOUTH AFRICA 207
Mining
9. The Commission points out that there are possibilities for the further
development of mining in South West Africa, and in accordance with its
recommendations ithas been decided-
(a) to organize the exploration and mapping of the whole Terri tory
(Report, p. 457, para. 1481 (a)-(d));
(b) to assist and encourage the inhabitants of the non-White areas in
prospecting and exploiting the minerai occurrences in such arcas
(Report, p. 457, para. 1481 ( g));
(c) to arrange for an investigation into the mining taxation structure
in South West Africa (Report, p. 457, para. 1481 (h)). The Govern
ment considers this investigation of particular importance, since the
policy has always been that a reasonable share of the procceds from
mining should accrue to the State, by way of taxation and royalties,
for utilization in promoting the interests of all the populatfon groups
in the Territory.
Industries
10. Decisions on many of the recommendations relating to industrial
development must await the general decisions on financial and adminis
trative arrangements (see paras. 15 and 20-22 of this memorandum).
lt has, however, been decided that with the assistance of the Bantu
lnvestment Corporation special attention will forthwith be given, in
accordance with the Commission's recommendations, to-
(a) the efficient marketing of livestock from the northern arcas, includ
ing, inter alia, the establishment of a meat-canning factory, as well
as the development of the marketing of hides and the tanning and
local processing of leather (Report, p. 459, para. 1482 (k) (i));
(b} the establishment of a furniture factory in Ovamboland (Report,
para. 1482 (k) (ii));
(c) the rendering of assistance in connection with the decortication of
jute in the Okavango (para. r482 (k) (iii));
{d) the possibility of exploiting the salt pans in Ovamboland (para.
1482 (k) (iv));
(e) the marketing of wood-carvings, basket work and matting, and
the improvement of these home industries (para. 1482 (k) (v)); and
(!) the possibility of establishing a clothing factory in Ovamboland
(para. 1482 (k) (vi)).
Agriculture
rr. In addition to the large-scale water supply schemes (see para. 7,
above), it is the Government's aim, pursuant to the recommendations of
the Commission, to place agriculture in the Native areas on a firmer a~d
more scientific basis. Professional research, education and guidance w11l
be extended by the provision of experimental farms, demonstration
farms and training facilities for the non-White groups (Report. p. 309.
para. 1283 (ro) to (12) and (14) to (15)), as well as by the appointment of
professional agricultural officers to advise and assist non-White farmers
(p. 309, para. 1283 (7)to (9)).208 SOUTH WEST AFRICA
Further investigation and research will take place in the Okavango
territory in conncction with the cultivation of groundnuts and jute, two
crops which are new to the inhabitants of that territory, but the potenti
alities of which have already been largely demonstrated, and which could
make a substantial contribution to the agricultural economy. (Report,
pp. 307 and 309, paras. rz69 to u:Sr.)
ln order to cnable the stock farmcrs of the northern Native arca to
obtain an export market for their livestock and livestock products, a
large-scale inoculation campaign against lung disease will be initiated,
together with strict control mcasures to prevent the movement of in
fected animais (p. 279, para. n84 (1) and (2)).In addition, provision will
be made for quarantine facilities in the form of quarantine farms and
quarantine abattoirs equipped with the necessary cold-storage facilities.
By means of these facilities, the export of livestock, boned and frozen
carcasses, disinfected bides and horns, etc., to meat-canning factories and
other markets in the south will be made possible (p. 279, para. n84 (3)
to (5)).
Education
12. ln the phase of dcvclopment now embarked upon, education will
necessarily play an important part.
The progrcss already made in this field appears, inter alia, from the
school attendancc figures and percentages of the various groups. In the
case of the White group, virtually 100 per cent. of the possible school
population was cnrolled in 1962 {p. 223. para. 958). ln the case of the
Colourcd and Ba:,ter communitics the school attendance figure was more
than doubled between the years 1950 and 1962, narnely from 2,528 to
6,235 (p. 225, table LXXIV); according to the Commission's calculation
the latter figure represented almost 90 percent. of the possible school
population (p. 225, para. 961). As regards the indigenous groups the attcn
dance figure was also more than doubled-from 22,659 in 1950 to 47,088
in 1962 (p. 227, tables LXXV and LXXVI). It is estimated by the
Commission that the last-mentioned figure reprcsented about 46 pcr cent.
of the over-all possible school population {p. 227, para. 964), and that the
corresponding pcrccntages in the northern and southcrn reservcs were
47 and 54 respectively (p. 253, para. rn43). Against tliis background the
significance will be appreciated of the Commission's recomrnendations
for a special de\'elopment programme particularly in respect of the in
digenous groups, one of the immcdiate targets being to increase the atten
dance figure to about 60 percent. in ail Native reserves or homelands by
1970 (p. 253, para. 1048).
Development of Educational Services. (Report, pp. 247 to 255, paras.
1023 to 1054.)
In giving effec:tto the Commission's recommendations, provision will
be made for more advanced and greater numbers of schools, hostel
facilities and facilities for the training of teachers. This applies mainly to
the areas of the non-White groups, where the Commission estimates that
expenditure on schools, hostels and training centres will arnount to
R3,500,ooo during the first five years. (Report, p. 481, para. 1509.)
Within the framework of this general decision, the details of the re
commendations must in the nature of things be left for decision by the
educational authorities. COUNTER.-MEMORIAL OF SOUTH AFRICA 209
Nature of Educational Services. (Report, pp. 255 to 261, paras. 1055 to
1097.)
ln this respect also, the Government's decision is in general to give
effect to the Commissîon's rccommendations concerning the extension
and improvement of the nature of the educational services, whercby
wider and better educational opportunities will be crcated, particularly
for the non-White population groups. Here again, decisions concerning
details must be entrusted to the educational authorities.
Health Services
13. The improvcment and extension of the Territory's health services
have for a considerable time received the active attention of the Adminis
tration of South West Africa, inter alia,pursuant to interim recommenda
tions of the Commission. Substantial progress has, for example, already
been made in the erection of o.tuberculosis and general hospital at Okata
na, Ovamboland, pursuant to recommendations by the Commission on
29 November 1962 (see p. 493, paras. 1528-1529 of the Report). The total
cost will be R1,400,ooo.
In pursuance of the Commission's rccommendations the Govcrnmcnt
also intends to encourage, ami where necessary to assist, the Administra
tion to proceed immediately with a comprehensive programme of
combating and preventing discase, particularly amongst the non-White
groups. This programme will include, inter alia, the erection in due course
of at least 20 new hospitals and clinics for the non-White groups, apart
from the development and extension of existing establishments (p. 201,
paras. 893,896.899, 901; p. 203, paras. 902,904,909). The estimated direct
contribution of the Republic under the five-year plan will be Rt,500,000
(p. 481, para. 1509). The total cost will of course be much higher, and the
Republic will consequently also provide assistance in obtaining the
further funds requircd. In adclition a greater number of district surgeons
and other meclical practitioners, as well as nurses, hcalth inspectors and
other staff will be appointed, training facilities for non-White medical
personnel established and improved, and special efforts made to obtain
an adequate number ofother personnel, in order to render all the necessary
health services and to attain as far as possible the aims set by the
Commission (p. 199, para. 889; p. 201, paras. 892,895,898,900; p. 203,
paras. 903, 905, 908, 9rn; p. 205, para. 913). Comprehensivc campaigns to
combat malaria, tuberculosis :rnd other diseases will be initiated (p. 201,
paras. 891, 894, 897, 901 (ii); p. 203, paras. 902 (iii), 907). Ambulance
services, service flights by specialists and a medical radio service will
be utilized as far as practicable to bring expert medical assistance
to the remotest corners of the Native areas (p. 197, paras. 873, 874
and 876).
Besiclesthese direct services, missions will continue to be subsidized in
order to enable them to complement as effectively as possible the services
provided by the State (p. 199, paras. 886 and 887).
The Government accepts that the contemplated extension of services
will involve a corresponding increase in the health estimates (p. 199,
para. 884). In this case also, decisions concerning details will have to be
taken from day to day by the administering authorities.210 SOUTH WEST AFRICA
Purchaseof Land
14. In several cases the Commission proposes that \Vhite-owned farms
should be purchased with a view to including the land in contemplated
non-White homelands. (Report, p. 87, para. 326 (b) (ii); pp. 89-93, paras.
337 (vii) and 339; p. 95, paras. 352 (v) and 353; pIOI, para. 388; pp. 101
and 103, paras. 393 (vi) and 395.)
For the reasons set out in paragraph 21 bclow, no decisions are at
present taken on the Commission's recommendations with regard to
constituting homelands as self-go\'erning territories.The farms referred
to above are, ho'"lvever,mcntioned by name, and ît would therefore be
unreasonable to l.eave the owners concerned in doubt for a considerable
timc. The demarcation of new borders for homelands, should thîs be
involved in eventual decisions, would also be facilitated if a considerable
part of the required land should then be in the State's possession.
The Government has therefore decided that in aU cases where, in the
areas indicated, the owner is prepared or desires to sell his farm now, it
would be willing to enable the Administration of South West Africa, by
the provision of funds, to purchase the farm as soon as possible at a
reasonable price, which would include compensation for lasses and incon
veniencc. Failing agreement, the price could be dctcrmined in accordancc
with the procedure applicable to expropriation. The farms thus purchased
will be treated as government property and be available for any purposes
subsequently decided upon.
\Vith a view to inclusion in two of the contcmplated homelands, the
Commission proposes that Welwitschîa township and townlands (Report,
p. 89, para. 337) and Gibeon township and townlands (Report, p. IOI,
para. 393) shoulcl also be purchased. The same considerations are applic
ableh~re and, in respect of private property in these towns, the Govern
ment 1sprepared to make the same provision as in the case of the above
mentioned farms.
As regards the purchase of farms necessary for the Irrigation Settle
ment on the Orange River for Coloured persons (Report, p. 109, para.
422), it has been decided to recornmend to the Administration of South
West Africa that this should be proceeded with, and assistance will be
rendered where necessary by the provision of funds. In this instance
nothîng more is involved than an ordinary settlement scheme for needy
and rural Coloured persons.
Appointment of aSpecial Committeeof Experts
15. In the imerest of the large-scale developrnent whîch the Com
mission contemplates for the Terri tory of South West Africa, it proposes,
in a series of recommendations, a rearrangement of administrative and
financial relations between the Republic and South West Africa. (Report,
pp. fo-63, paras. 214-225 and 229-235, and see also, for example, p. 263,
paras. no2-1 rn3; p. 309. para. 1283 (3)-(5); p. 377, introductory part of
para. 1368; p. 455, paras. 1479 and 1480.) As regards the nature of the
administrative reorganization, the Commission's views are set out fairly
fully, but for the purpose of determining certain essentials of the new
financial relations, it has recommended the appointment of a Special
Committee of Financial Experts (Report, p. 63, para. 236). With reference
to this particular proposai of the Commission, attention is invited to the COUNTER-MEMORIAL OF SOUTH AFRICA 2II
message of the State President already conveyed to Parliament, regarding
a resolution ofthe Legislative Assembly of South West Africa.
The Government is, however, convinced that it cannot take general
decisions on either the new administrative or the new financial arrange
ments before full details have in both cases been carefully worked out,
in order to determine what every change will involve and, particularly,
the precise manner in which every change-over will be effected in practicc.
This is not covered by recornmendations which concern only the future
form which the administration is to take.
The Government has therdore decided to accept the recommendation
that a Committee of Experts be appointed, but its terms of reference will
be much wider. It will have to cnquire into and submit a report on ail the
practical problems to be taken into account when the rearrangement of
administrative and financial relations is considered. This Committee will
consist of officiais and persons in authority from both the Republic and
South West Africa. Their names will be announced as soon as possible.
Coloured Housing and Commimity Centres
16. The Government has decided, in accordance with the recommenda
tions of the Commission, to make funds available where necessary for
Coloured housing and community centres (Report, p. 481, para. 1509 (4)).
D. MATTERS ON WHICH THE AUTHORITIES CONCERNED
WILL TAKE THE IR OWN DECISIONS
17. l\Iany of the approximately 475 recommendations do not require
dccisions by the Government, in that they are of restricted application or
concern details with which the departments, bodies or persons in charge
of the administrative implementation of the policies and programmes
decided upon, are authorizcd to deal. l\Iost of these recommendations,
if not ail of them, contain very uscful suggestions for application under
any governmental system or policy.
The recommendations which involve such matters of detail are nume
rous and varied. Rcference is hcre made to the following examples only:
Recommendations concerning health services (Report, pp. 197-205);
particular recommendations c:oncerning cducational facilities and services
which do not involve a change of system, such as those regarding hostels
(p. 249, para. rn33), syllabuses (p. 257, para. rn64), the training of
teachers (p. 25g, paras. rn72-rn78), technical and special education
(p. 259, paras. 1080-1084), conditions of service (p. 263, para. IIII); re
commcndations for the improvement of agricultural services and activi
ties (p. 309, para. 1283 (7-15)); recommendations regarding certain
airfieldsand air services (p. 391, para. 1375 (e)-(h)); prospecting work
in co-operation with the Geological Survey Division (p. 457, para. 1481
(e)). Such matters of detail will in due course receive the attention of the
appropriate authorities and do not at this stage require consideration or
decision by the Government. Adjustments can naturally be made ac
cording to requirements. Should dccisions by the Government or even
Parliamentary approval appear to be essential in some instances, the
necessary steps will be taken.212 SOUTH WEST AFRICA
E. MATTERS TO BE DECIDED UPON LATER
18. Various reasons render immediate implementation of certain of the
Commission's recommendations either impossible or undesirable, or
make it impracticable for the Govemment to reach final decisions con
ceming the concrete steps to be taken. The fo!Lowingclassification, in
which there is some overlapping, serves as illustration.
(a) Long-Term Projects.
19. From their very nature, and as in fact envisaged by the Com
mission, certain recommendations do not fall to be considered with a
view to immediate implementation, but will have to await the lapse of
certain periods, the taking of steps which serve as preparation or which
requirc priority,and the like. As examples, reference may be made to the
recommendatîons concerning the Second and Third Five-year Plans.
(Report, pp. 453 and 455, paras. 1477-1478; pp. 481 and 483, paras. 1510-
15 II.)
Pursuant to the Government's attitude as set out in paragraph 5 above,
the necessary attention will be given to recommendations of this nature
with a view to decisions at a later stage.
( b) Recommendations which Require Ftuther Investigation and Consùlera
tion.
20. There are mattcrs which require further investigation, information
and consideration before the Government can reach any final clecisions.
ln several cases 1:hcCommission itself has proposed such investigation.
A striking example is the recommendation regarding expert cnquiry
into essential aspects of new financial relations, in respect whereof the
decision of the Government to appoint a Committee with widcr terms of
reference has alŒady been announced in paragraph 15 above. It follows
that, notwithstanding the Commission's recommendations and until this
Committee has submitted its report, no decisions will be taken on the
series of recommendations concerning a change in the administrative
relations between the Republic and South West Africa, or concerning a
change in the financial arrangements and relations.
Another case :in which the Commission itself proposes investigation
before a decision is taken, appears in paragraph 1481 (h) (p. 457),
concerning mining taxation. (See para. 9 (c) above.)
A recommendation regarding which the Govemment desires further
investigation and information, concerns the construction of a connccting
road between Runtu and Katima Mulilo (p. 377, para. 1368 (6)). Ow~ngto
problems concerning the administration of the Eastern Caprivi, the
possibility of constructing such a connecting road was carefully investi
gated and considered in the past, but the conclusion thcn reached was
that the project was impracticable by reason of geographical and environ
mental factors. The Commission's present proposai opens up interesting
possibilities of considerabie importance regarding the future adminis
tration and development of the Eastern Caprivi. In the circumstances
!he G~>Ve~nmentinten~s. before taking a decision, to initi?-te fu~t~t:r
mvesbgabon and tests m regard to the technical and econom1c poss1b1li
ties and implications of such a project under present conditions. COUNTER-MEMORIAL OF SOUTH AFRICA 213
(c) Recommendations Standing Over/or Special Reasons.
21. In the case of certain recommendations, there is a combination of
special rcasons why it is not advisable or practicable to take final decisions
at this stage, notwithstanding· thefact that the Government is favourably
disposed towards the trend of policy embraced in the recommendations
concerned.
llomelands
The Commission's recommendations for constituting homelands, as
self-governing areas for several non-White groups (pp. 81-ro7, paras.
298-416), afford an important example, These recommendations are at
present affected by considerations pertaining to the pending case which
has been instituted against the Republic by Liberia and Ethiopia in the
International Court at The Hague, and on which the Government states
itsattitudcmorespecifically in section F below. Apart from that, howcver,
thcre arc various reasons why it is in any cvent not practicable to procccd
immediately with the constitution of entities of the nature proposed. In
some instances, where the addition of considerable areas of land now in
the private ownership of White persons is involved, there are problems
which render impossible the effective demarcation and application of
borders before the State has at its disposai at least the greater portion of
the land required. Moreover, the final series of steps which could in a
particular case lead to effective constitution, requires a measure of inter
action between the State and the responsible authorities in the ethnie
group concerned, in which there is reflected on the part of the group a
sufficient degree of preparedness, as regards sense of responsibility and
acceptance of the administrative and economic implications, to spell fair
prospects of success for the undertaking. Different groups will naturally
reach such a stage of preparedness at diffcrent times. It is also important
that the projects for economic and other development in the different
areas should be properly under way before the authorities concerned
take over responsibility. AUthe factors mentioned point to a measure of
inevitablc delay, greater in the case of some groups and areas and less for
others, bcfore the recommended constitution of homelands as sclf
governing entities can occur. During such an interim period circum
stances may develop which render desirable adjustments not foreseeable
at the present stage.
The Government wishes to state clearly once again that its general
attitude, as set out in paragraph 5 above, inter alia, involves agreement
with the Commission's finding that the objective of self-determination
for the various population groups will, in the circumstances prevailing in
the Territory, not be promoted by the establishment of a single multi
racial central authority in which the whole population could potentially
be represented, but in which some groups would in fact domina te others.
(Report, p. SS, paras. 183 to 190.) The Government also endorses the
view that it should be the aim, as far as practicable, to develop for each
population group its own homeland, in which it can attain self-determi
nation and self-realization. {Report, p. 55, para. 190.) The Government
moreover accepts that for this purpose considerable additional portions
of the Territory, including areas now owned by \Vhite persons, should be
made available to certain non-White groups. And it shares the view that2r4 SOUTH WEST AFRICA
there should be no unnecessary delay in taking the next steps in regard
to this important aspect of the development of the population groups
concerned. ln view, however, of ail the abovementioned considerations,
no decisions are at present being taken on any of the recommendations
concerning the constitution of homelands as self-governing areas, the
demarcation of their boundaries and changes in their fonns of govern
ment.
Administrative and Financial Relations
The Commissic,n's recommendations concerning a reorganization of
administrative functions as between organs of the Territory and those
of the Republic, and concerning the concomitant change in the financial
relations, are affected by similar considerations, inter alia, conceming the
pending Court cas.ealready mentioned, in addition to the need for further
expert enquiry as already dea]t with in paragraph r5 above .
. Here also the Govemment desires to state clearly that it is in agreement
with the gencral view of the Commission, and believes that doser investi
gation will confirm that the major development projects contemplated,
particularly in the interests of the non-White population groups, can be
carried out to the best advantage through greater financial and adminis
trative contributions thereto from the Republic, of the nature cnvisaged
in the recommendations. But in this regard too, owing to the combination
of considerations mentioned above, no dccisions concerning implemcnta
tion are at present being taken.
Recommendations Connected with the Foregoing
Certain of the Commission's recommendations are necessarily or insepa
rably connected with those which are standing over for the time being for
the reasons just dealt with. An example of necessary connection with the
Commission's homelands scheme is afforded by the recommendations
relating to new councils for local self-government of the non-White
inhabitants of towns and townships in the White areas. {Report, pp. n7-
n9, paras. 445-453.) Although the Government is inprincip1e strongly in
favour of a development which will along these lines afford an increasing
measure of local self-government to the non-White groups concerned,
decisions regarding the practical steps to be taken are for the time being
standing over for the above reasons. Other examples of such connection
with the homelands scheme are the recommendation concerning a Co
ordinating Committee (Report, p. 487, para. r5I7) and the recommenda
tions on the buying out of certain non-White reserved areas. (Report,
p. ro7, para. 4rr.)
By way of contrast, there are recommcndations which may in the
wording usecl by the Commission be coupled with the concept of home
lands, or with control by a department other than the one hitherto respon
sible,but where the connection is not neccssary or inseparable, and where
thedevelopment ..particularly in theinterests of the Natives, cannot on the
Government's responsibilitv be held in abeyance. (See for example the
wording of paras. I368 and"1370, p. 377, regarding roads, and para. r48r
(g), p. 457, regarding mining.) In such cases, adjustments must be made
admmistratively in the course of events, regard being had to the interim COUNTER-MEMORIAL OF SOUTH AFRICA 215
arrangements indicated in paragraphs 24 to 26 below and, where neces
sary, with the assistance of the Liaison Committee mentioned in para
graph 27.
F. THE GOVERNMENT'S ATTITUDE CONCERNING THE
CASE PENDING BEFORE THE INTERNATIONAL COURT
22. According to present indications, the hearing on the merits of the
case pending before the International Court of Justice, and already
referred to above (para. 21), will probably occur during 1965.
It is an established principle in regard to pending cases that a party
should refrain from action which may prejudice the alleged rights of the
other party or parties, that is to say those rights to which daim is laid in
the case. The Statute and Rules of the International Court specifically
provide that the Court can, of its own accord or on the application of a
party, issue interim measures with a view to preventing such action.
Notwithstanding its well-known reservations concerning, inter alia,
the jurisdiction of the Court, the Government abides by its decision
announced in Parliament last year, namely to participate in the pro
ceedings on the merits and to present its case thereon to the Court. Conse
quently it is the Government's intention to observe the said principle and
thus to obviate unnecessary further complication of the case through
proceedings concerning possible interim measures. Until the case has been
concluded, the Government will therefore refrain from action which may
be regarded-even theoretically-as detrimental or prejudicial to the
alleged rights of the Applicant States, or which may unnecessarily aggra
va te or extend the dispute before the Court. This attitude is in entire
accord with the sub judice principlc, which has been observed by the
Republic even where it was not respected by others, for example in
proceedings at the United Nations.
The most important examples of recommendations affected by the
abovementioned considerations have already been mentioned in para
graph 2r above, namely those relating to the constitution of hqmelands
as self-governing areas for the various non-White groups, those concerning
a reorganization of administrative fonctions and new financial relations
between the Territory and the Republic, and those which are necessarily
or inseparably connected with some or other of the aforegoing. It has
alread y been indicaed that in ailthese cases, notwithstanding the Govern
men ts agreement with the broad trend of policy contained in the recom
mendations, there are also other reasons why it is necessary or desirable
that implementation and decisions thereon should stand over for the time
being. Considerations relating to the Court case therefore do not for the
present make a practical difference in these respects.
Another example of recommendations which might be affected by
reason of potential extension or aggravation of the dispute, is that con
cerning the supply of liquor to Natives. (Report, p. 487, para. 1513.) A
decision on this recommendation therefore also stands over until after the
conclusion of the Court case.
The considerations, apart from the Court case, which have a retarding
effecton the implementation of and the taking of decisions on the above
mentioned recommendations, will doubtless continue to apply in some
respects even when the case has been concluded. ln other respects they216 SOUTH WEST AFRICA
may possibly have lapsed or been overcome at an earlier stage. In the
latter event, deci~ions and implementation will nevertheless be held over
until the conclusion of the Court case.
G. FINANCIAL IMPLICATIONS OF DECISIONS AND INTERIM
ARRANGEMENTS FOR THEIR JMPLEMENTATJON
The Five-Year Plan
23. Itwill be clear from the foregoing that the Government has decided
to commence immediately with the implementation of most of the re
commendations which are summarized by the Commission, together with
their financial implications, under the First Five-year Plan. (Report, p.
481, para. 1509.)The portion of the five-year plan which will be undertaken
will therefore reprcsent an amount of at least Rno million on the basis of
the Commission's estimates (as against the Rn5 million contemplated
by the Commission, of which at the most R5 million is inseparably
conncctcd with the creation of homelands and is therefore provisionally
left in abeyance).
This amount is of course not an indication of the total financial burden
which will be involved, by way of loans or contributions, in the contem
plated development of South \Vest Africa over the next five years. Para
graph 1509 of the report shows that an annual net shortfall will also have
to be met. Over the five-year period, and on the basis of the Commission's
comprehensive recommendations, the expected shortfall will amonnt
to more than R+1 million. This raises the total amount to be financed
from South African and South \Vest African sources to over R.150 million.
But even this amount does not accurately reflect the compass of the
whole development programme for South West Africa, since a consider
able portion of the Administration's estimates will over the period in
question also concern development projects.
Intcrim Financial and Administrative Arrangements
24, In its recommendations the Commission envisaged that the large
development projects which are contemplated should be financed in
accordance with a new financial relationship which, inter alia,was to be
investigated and determined by a committee of financial experts. (See
para. 15 above.) The Commission also envisaged that, in most cases, the
projects would be dealt with by the well-equipped state departments of
the Republic. (See para. 15 above.) The contemplated new arrangements
in both fields, financial and administrative, can however, for the reasons
dcalt with in paragraphs 15 and 20 to 22 above, not be put into operation
for the time being. It is consequently necessary to indicate how the work
is to be carried out in the transitional period, and by which means the
funds are to be made available in the meantime.
25. Responsibility for the implementation of decisions willrest with
the Administrator and the Administration of South \Vest Africa or with
the Government of the Republic, depending upon which authority is at
present responsible for matters of the relevant nature. In cases where the
Administration of South West Africa is not equipped to take action itself,
or forother reasons prefers to appoint an agent to carry out the work, it COUNTER-MEMORIAL OF SOUTH AFRlCA 217
can enlist the co-operation of expert bodies, such as the Industrial
Development Corporation and the Electricity Supply Commission in
connection with the Kunene water and clectricity schemes, or of the
National Transport Commission, or even of a state department of the
Republic, such as the Department of Transport, for example, in connec
tion with the construction of main roads or airports. Legislation has
already been passed this Session enabling the Electricity Supply Com
mission to operate beyond the borders of the Republic, in accordance
with the State President's announcement that, where necessary, legis
lation arising from the report would be introduced.
26. The funds required for the projects will as far as possible be drawn
from the existing sources. Advances and shortfalls will in the meantîme
be covered by the Republic by means of loans to the Administration,
the interest on which will be capitalized. Should financial and administra
tive rearrangements in accordance with the report be accepted and
applied after the Committee of Experts has submitted its recommcnda
tions, rcsponsibility will forhe greater part devolve on the Governmcnt
of the Republic. The latter wîll, as proposed in the report, undertakc the
further expenditure concerned from all the sources then at its disposal
which implies that shortfalls met in such circumstances from sources
withîn the Republic will not subsequently be recoverable. Accurnulated
loan obligations incurred by the Administration of South West Africa
as mentioned above, can be ,vritten off when the stage of financial and
administrative reorganization is reached.
The I\1inister of Finance has announccd in his Budget Speech that an
amount of Rzo million is being put asîde this year for the development
programme in South West Africa.
Loans raised elsewhere for the purpose of financîng the major projects,
such as the Kunene water and elcctricity schemc, will from the outset
be dealt with by the Govemment of the Republic.
Liaison Committee
27. A special tempôrary committee will be appointed to serve as a
link betwecn the Central Government and the Administration of South
West Africa, in order to ensure the smooth working of the abovemen
tioned interim arrangements. Where necessary, the committee willfurther
rnake special arrangements for the provision of expert assistance and
information, technical and other staff, apparatus and irnplements, etc.
The composition of this Liaison Committee will also be announced in the
near future. Annex B
COMPARATIVE TABLE
Counter-1'1em01'ial Memorandum
Subfect 1 (Annex A)
(I) Geography, history Book Ill (the whole) Chapters I and II (pp. 9-43).
and population Book IV, Chap. Ill,
Il, pp. 399-403
(2) Policies, ind uding Book l V, Chapters IV - Dealt with under Form of Para. 21
separate development VII, Il, pp. 404-488 Government and Admin
istration (Part C) and
Concluding Review (Part
X). See inparticular
paras. 183 to 190 (p. 55)
and 1554 to 1557 (p. 515).
(3) Agriculture and land Book V, sec. B, Chap. Chapters XVIII to XXI Parn. II
settlement I-V, III, pp. 2-39 (pp.267-311).
(4) Fishing industry ... Book V, sec. C, Cha p. Chap. XXIII, paras. 1322-
11,m. PP- 42-46 1323 (pp. 345-353).
(5) Mining and minerais • Book V, sec. C, Chap. Chap. XXII, paras. 1313- Para. 9
III. IIIpp. 47-63 132 l (pp. 335-343) ·
(6) Railways and harbour~. Book V, sec. C, Chap. Chap. XXVI, para. 1373 Para. 8 (c)
IV, III,pp. 64-69 [pp. 377-387).
(7) Labour conditions in Book V. sec. C, Chap. Chap. XXII, para. 1321D
the Police Zone vr, m, PP· 80-99 (p. 343); Chap. XXXII.
para. 1518 (p. 487).
(8) Govemment and citi Book V, sec. E, Chap. Chap. III-X (pp. 45-119). Paras. 15, 21
zenship (including lo 1-IV, 111,pp. 104-194 and 22
cal government) (seealso item 2
above)
(9) Local government .. Book V, sec. E, Chap. Chap. IX and X (pp. l15- Para. 21
III, IIIpp. 167-193 119).
(10) Rights of residence .. Book VI, Chap. III, Chap. VI-X (pp.67-119). Paras. 21
and 22
Ill, pp. 231-297
(n) Education ...••. Book VII, lll (whole) Chapters XVI-X VU (pp. Para. 12 (for
219-263). (Training of training of
nurses dealt with under nurses, see
Health, part F. See in par para. 13).
ticular, para. 653 (p. 159);
paras. 745-746 (p. 175);
paras. 781, 783 and 789
(p. 181); paras. 798 and
801 (p. 183-185); para. 810
(p. 185); paras. 814 and
823 (p. 187); paras. 845-
850 (p. 191); para. 889 (b)
(p. 199); paras. 892 (b),
895 (b),898 (b) and900
(b) (p. 201); paras. 903
(b), 905 (b), 908 (b), 910
(b) (p. 203); para. 913 (b)
(p. 205). AnnexC
LIST OF THE RELEVANT DOCUMENTATION
REPUBLIC OF SOUTH AFRICA-REPORTS OF COMMISSIONS
R.P. No. 12/1964, Report of the Commission of Enquiry into South
West Africa Affairs.
Books VII-X