Abbreviated referen:e
I.C.J. Pleudilzgs,South Africa,
Vol.VI
Référenceabrégé:
C.IJ.Mémoires,Sud-Ouestafricailz,
vol. VI
sa"' numbe"l5 1
No de vente:AU rights reserved by the
International Court of Justice
Tous droits r6servés par la
Cour internationalede Justice SOUTH WEST AFRICA CASES
(ETHIOPIA vSOUTH AFRICA;
LIBERIA vSOUTH AFRICA)
AFFAIRESDU SUD-OUEST AFRICAIN
(ÉTHIOPIE AFRIQUE DU SUD;
LIBÉRIA c. AFRIQUEDU SUD) INTERNATIONALCOURT OF JUSTICE
PLEADINGS,ORAL ARGUMENTS, DOCUMENTS
SOUTH WEST AFRICA CASES
(ETHIOPIAv.SOUTH AFRICA;
LIBERIAv.SOUTH AFRICA)
VOLUME VI
COUR INTERNATIONAT-EDE JUSTICE
MI?MOIRES, .PLAIDOIRIES ET DOCUMENTS
AFFAIRES DU SUD-OUEST AFRICAIN
(ÉTHIOPIECAFRIQUE DU SUD;
LIBÉRIAcAFRIQUE DU SUD)
VOLUME VIPRINTED IN THE NETHERLANDS The present volume contains the Rejoinder (Parts III (sections
F-1) to VII) relating to the Soz~tltWestAfrica cases. The proceedings
in these cases,which were entered on the Court's General Liston
4 November 1960under numbers 46 and 47,were joined by an Order
of the Court of 20 May 1961 (SouthWest Ajrica, Orderof 20 May
1961, I.CJ. RePorts1g61,p. 13)T.wo Judgments have been rendered,
the first on 21 December 1962 (Soz~tlbWest Africa, Prelifninary
Objections,JzidgrnentI.C.J.Reports1962, p. 31g),and the second on
18 Jdy 1966 (Souih West Africa, Second Phase, Judgment, I.C.J.
Reports 1966, p.6).
The page references onginally appearing in the pleadings have
been altered to correspondwith the pagination ofthe present edition.
LVherethe reference is to another volume of the present edition,
the volume is indicated by a roman figure in bold type.
The Hague, 1966.
Le présent volume reproduit la Réplique (Parties III (sections
F-1) à VII) déposéedans les affaires du Sud-Ouest aj~icaitt. Ces af-
faires ont étéinscrites au rôle généraidela Cour sous les noa46 et
47 le4 novembre 1960 et les deux instances ont étéjointes par or-
donnance de la Cour le 20mai 1961 (Sud-Ouest ajricnin,ordonnance
du 20 mai 1961, C.I.J. Recueil1961, p. 13).Elles ont fait l'objet de
deux arrêtsrendus le 21 décembre 1962 (Szcd-Ouestafricain, excep-
tions préliminaires, arrêt,I.J. Recztei11962,p.319) et le18 juillet
1966 (Sud-Ouestajricain, deuxièmephase, arrêt,C.I.J. Recf~eil1966,
P. 6).
Les renvois d'un mémoire à l'autre ont été modifiés pour tenir
compte de la pagination de la présente édition.Lorsqu'il s'agit d'un
renvoi à un autre volume de la présente édition,un chiffre romain
gras indique le numéro de ce volume.
La Haye, 1966. TABLE OF CONTENTS
7. Rejoinderfof South Africa (continued)he Republic
Page
Part III (cantifizded)....................
Section F .Govenunent and citizenship ...........
1. Introduction .................
II. asnowsiset forth in the Replyl..........sic attitude
III. Suffrageand participation interritorial government
IV . Government ~vithin the Native tribes and Native
reserves....................
VI . Localagovenunentrat...............ce).......
VI1 .Conclusion ..................
Section G .Education ....................
Chapter 1 .Introduction .................
Chapter II .General policy................
A . Introductory ...................
B . Applicants' allegations regarding general polic....
C . Categorization ..................
Chapter III .Nature of education in the territory......
A . General .....................
C . Separationnbyytribe ................
1.The charge that the policy "thwart[s] the social
progress of the 'Natives'"............
II.The allegation that Respondent's policy is "im-
practicaland unworkable" ...........
III.The allegation that Respondent's policyhas "at least
IV .The allegation that the "evils" of the policy are
"compounded in South Africa at the university
level" ....................
D .Limitation of objectivesin syllabus .........
1 .he roleofpracticd subjects in primary schoolç ...
II .Attitude of the permanent mandates commission . .
III .Reports and speechesreferred to by Applicants ...
IV. Secondary school and other courses.........
Chapter IV .The extent ofeducation in the territory.....
B..Laisser-faire....................
C .Compulsory education ...............
D .Disparity in expenditure ..............
E .Conclusion .................... SOUTH WEST AFRICA
Page
Chapter V . Separate education as viewed by United Nations
politicd organs ...................
A . Introductory ...................
B . The proposition that separation is incompatible with the
"broad goals of education" .............
C . "the basic meaning of education"i ..........ibl weith
D . The proposition that separation is incompatible with
"the principle of equal opportunity".........
E . The proposition that scparation is incompatible with
"the principle of racial equality"..........
F . The proposition that separation js incompatible with
G . Allegedconsiderationofpracticaldifficulties......
H . Allegedcornpliance with United Xations requirements .
1 . Somaliland under Itaiian administration .......
Section H .The economic aspect ..............
Chapter I .Introduction .................
Chapter II .General considerations ............
A . Introductory ...................
B . Applicants' allegations regarding the "structural foun-
dations" and "premise underlying" Respondent's policy
C . Migratory labour in South West Africa. and the implica-
tionsthereof ...................
1.Introductory .................
II.The role of rnigratorylabour in the economy of South
West Africa ...................
III.Migratory Iabour in other countries........
IV .The extent to which the labour force in South West
V .Future developments regarding the system in South
West Africa ..................
VI .AppLicants' criticisms of the rnigratory labour sys-
tem operating in the territory..........
D . Applicants' allegations regarding low wages in the ter-
ritory ......................
1.General ....................
II.Cornparisons of the wage level of the Native labour-
ers of South West Africa ~4th that of Native em-
ployees in other territories ...........
III. Cornparison of the wage level of the Native labour-
ers with that of the European employees in the
territory ...................
E. occupation of land................. tlie acquisition and
F. The position of the Natives in the mining industry . .
G . The opportunities of employment for liiatives in the
railways and harbours administration ........ CONTENTS XI
Page
H .Respondent's alleged policy of"Eaisser-faiwith respect
to tribalism" ...................
1. Applicants' allegations regarding economic conditions
in dependent territories ..............
Chapter III.The reserves ................
A. Introductory ...................
B. Development of the northem reserves outside thePolice
Zone .......................
C. Land allocation andthe alienation of landtoEuropeans.
D. Measures taken foradutheerelief of personç affected by
drought .....................
E. Alleged discrimination in social welfare measures...
1. ThePneumoconiosisCornpensationAct ......
II. The Workmen's Compensation Act ........
III . The Social Pensions Amendment Ordinance ....
Chapter IV. The Police Zone...............
A. Introductory ...................
B. Admission to employment and access to vocational
training .....................
C. laboure...................... effect of compulsion to
D. Freedom of association and the right to organiz....
Chapter V. Conclusion .................
Section 1.Security of the person. rights of residence and freedom
of movernent ......................
Chapter 1 .Introduction .................
Chapter II . General nature and effect of Applicants' allega-
iions ........................
A. Introductory ....................
B. The hlemorials ..................
C. The Counter-Memorial ...............
D . The Reply ....................
Chapter III .Respondent's basic reserve policy.......
Chapter IV. Provisions supplementing and rendering effective
the reserve polic...................
A . General .....................
3. Rights of residence in the Police Zone genera.....
C. Rights of residence inurban areas ..........
D . Passes and permits ................
Chaptcr V. hleasures not related to the reserve poli....
A. General .....................
C. Vagrancy and idleness i...............ry.......
Chapter VI. Conclusion .................
Part IV . AlIeged violationby Respondent of Article4 of the man-
date ..........................XIT SOUTH WEST AFRICA
Page
Chapter 1 Introduction................. 351
Chapter II.Statement ofthe law............. 354
A .Introductory ................... 354
B .The purpose of the military cla.......... 357
C. "The plain rneaninof theclause on its fac..... 363
D .The views of the Permanent Mandates Commission . . 364
Chapter III.Statement of facts............. 369
A .The Regment Windhoek .............. 369
C..The alleged "military camp" or "military air base" in74
the Kaokoveld .................. 376
D .Militaryactivity in gener............. 379
Chapter IV.Respondent's answer to Annex g of the RepIy-
supplementary rnaterial with respect to alleged violations
of Article 4 of the mandat.............. 382
A .General ..................... 382
C .Paragraph (z)of the Annex............. 382
D .Paragraph 3) of the Annex............. 384
E .Paragraph I) of the hnex ............. 386
F .Paragraph 5)of the Annex............. 387
G .Paragraph 6) of the Annex............. 387
1..Paragraph (8)of the Annex............. 388
Chapter V. Conclusion ................ , 390
Part V.Alleged violations by Respondent of Articl2 (1)of the
mandate and ArticIe22 of the Covenant .......... 3gf
Chapter 1. Introductio........*....... 391
Chapter II. Respondent's alieged "purpose or motive to in-
corporate or annexthe temtory" ............ 393
Chapter III. Respondent'ç allegedpoliciesand sc..... 401
A .General ..................... 401
B .Conferment of South African citizenshi....... 403
C .the South African Parliament........... West Africa 405
D .Administrative separation of the Eastern Caprivi Zipfel
from the rest ofSouth West Afric.......... 409
E .Vesting of South West Africa Native reserve lnad in the
South African Native trust............ 414
F .ister ofBantu AdministratioandaDevelopments ....he Min-
416
Chmeasures are incompatible with its duty to promote condi-
tions under which the inhabitants of the temtory may
progress towardself-determination........... 419
Chapter V .Conclusion ......,.......... 421
Part VI. Alleged violatioofArticle 7 of the mandate..... 423
A . Introductory..................... 423 CONTENTS
C. Applicants' statement of fa................. 425
D .Conclusion ...................... 428
Part VI1.Submissions ................... 429
List of documentatio.................... 430
Table of cases cit..................... 472 7.REJOINDERFILED BY THE GOVERNMENO TF THE
REPUBLIC OFSOUTH AFRICA(conthued)
PART III
(continued)
Section F
GOVERNMENT AND CITLZENSHIP
1. Introduction
I.In the Mernorials Applicants dealt with the complex of political
rights under a number of headings l,and ultimately formulated the
folloxvingcharge :
"Ïn s-, by law and by deliberate and consistent practice, the
Mandatory has failed to prornote to the utmost the development
of the preponderant part of the population of the Territory in regard
to suffrage or participation in any aspect of government. It has not
on1yfailed topromote such deveIoprnent to the ntmoçt, it has made
no notable effort to do so. To the contrary, the Mandatory has
pursued a systematic and active program which prevents the
possibility ofprogress by the 'Native' population toward self-respect,
responsibility or skill in any aspect of citizenship or government,
whether Territorialor local or triba2."
In essence the charge involved the imputation of improper motives
to Respondent, i.e., that its powers of legislation and administration were
exercised with the unauthorized purpose of preventing progress of the
Native population with regard to political rights, and even of reversing
possibilities of progress for th3.
2. In the Counter-Mernorial Respondent, considering Appiicants'
allegations as a whole, submitted that they appeared to emanate from an
unexpressed premise, viz.,that-
". . in the political sphere, as well as in other respects, there ought
to be no distinction or differentiation between vanous inhabitants
of the Terrjtory, and that the whole population isto betreated as
an integrated unit, with identical rights and facilities f'".al1
Respondent also pointed out that Applicants in no way attempted CO
substantiate such apremise, and referred to the fullreasons given for its
submission that such a prernise waswhollyunfounded, in fact and in law5.
Respondent in addition strenuously denied the imputation of improper
motives on its part-which, as has been shown 6, was the essence ofthe
charge in the Memol-ials-and dealt fully and in detail withthe manner
and.extent of participation by the Native population in the field of
l VideLIE,p.104.
1.P 143.
Vida also Ip. ro5.
Ibid., p.105
J rbid.pp.106-ro7.
Videpara.1,su$va.2 SOUTH WEST AFRiCA
political nghts, giving reasons for the differentiation between the various
population groups in relation to aspects of government and administra-
tion. and indicating the contemplated fines of advantageous future
development l.Respondent specificallystated that it contemplated-
".. . an evolutionary growth of the traditional institutions of the
vanous groups ina manner which would permit each to develop
towards possible self-detennination ...2",
and that it would, as çoonas the Odendaal Commission'sreport had been
considered,
"... proceed as fast as is practicable with the development of the
political institutions of the Natives, towards attainment of the
ultirnate aims and ideals of the sacred trust ".
3. The Odendaal Commisçionin its report expressedthe opinionthab
".. .the vanous'non-White population groupç, except the Bushmen
for the present, have reached a stage of development where a larger
measure of self-government and judicial administration can be
entrusted to them in their respective homelands, with due regard
to their existing forms of govemrnent and systems of judicial
administration, but supplemented according to the requirements of
changed circumstances and needs and with a view to the greater
participation of these groups in the further development of their
homelands ",
and recommended a large measure of self-government for such Native
groups, covering the greater part of the field of legislation as well as
general and judicial administration. It may be convenient to refer here
bnefly to the followingrecommendations of the Commissionin this re-
gard :
(a) that a Legislative Council be instituted for each Native group,
excepting the Bushmen andthe Tswana, in its homeland, consisting
of both non-elected and elected rnembers of the said group-the
non-elected membersto represent the present functioning rulers,
and to provide a link with the traditional type of political institu-
tions, and the elected members, the number of whom is at first
not to exceed40per cent. of the total Legislative Council,to intro-
duce a modem method of suffrage ';
(6) tauthority and administrative functions, excluding Defence, Foreign
Affairs,Interna1 Security and Border ControI, Posts, Water Affairs
of local transport undertakings)or4;(with reasonable protection
(c) fhat the executive power of the Legiçlative Councilbe vested in an
Executive Cornmittee, the membership of which is to Vary from
group to group 4;
(d) that the franchise for elected members of the Legislative Council
be ganted to aiimale and female members of the group over the
age of 18 years 4;
1 Vids II, pp. 404-488 and 1x1.pp. 104-194.
iI1.p. 131.
R.P. No. 1211964, p.81 (para .96).
Ibid., pp. 8385. 87,93.97 and 99. REJOINDER OF SOUTH AFRICA 3
/e) that, for the purposes of the administration of justice, the Legisla-
tive Council institute both inferior and superior courts, the corn-
position and jurisdiction of such courts to be determined bp the
Legislative CounciI ;
(f) that, in regard to general administration or civil service, the
functions of Respondent's Department of Bantu Administration
and Development within the Native homelands, also gradually be
taken over by the aforernentioncd homeland authorities =;
(g) that, in regard to non-White urban areas in the Police Zone, urban
non-White councils be established to represent non-White residents
of the areas in question on an elective basis, such counciis to
contain also representatives of the authorities in the homelands of
the particular groups, and to exercise more advanced functions of
local self-government than are at present entrusted to Advisory
Boards 3.
4. The Respondent Government indicated in its White Paper (Merno-
randum) on the Commission'sreport that it ". .. accept[ed] the Report
in broad principle", explaining that it thereby-
". .. accept[ed] the main features of the argument and recommen-
dations as an indication of the general course to be adopted in the
next phase of the development of South West Africa and of the
promotion of the well-being and progress of its inhabitants ".
More explicitly itsaid the following regarding the Commission's recom-
mendations in the political sphere :
"The Government wishes to state cleariy once again that its
general attitude, as set out in paragraph 5 above, intea riia,involves
agreement lvith the Commission's finding that the objective of
self-determination for thc various population groups will, in the
circumstances prevailing in the Temitory, not be promoted by the
establishment of a single rnultiracial central authority in which
the whole population could potentially be represented, but in which
some groups would in fact dominate others. (Report, p. 55,par. 183
to 190.T )he 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
seIf-realization. (Report, p. 55,par. 190.T )he Government moreover
accepts that for this purpose considerable additional portions of the
Territory, including areas now owned by White perçons, should be
made available to certain non-White groups. And itshares the view
that there should be no unnecessary delay in taking the next steps in
regard to tliis important aspect of the development of the population
goups concerned
5. Taking into consideration the sum total of Respondent's exposition
in the Counter-Mernorial and the Supplement to the Counter-Memorial,
read with the relevant recommendations contained in the Odendaal
R.P. No. 121r964, pp. 83, 85. 37,93, 97 and 99.
Ibid. Vide also p.61 (para222).
Ibn'd.,pp.117-119.
' IV. p.203.
tical reco&mendations in these respects.g ialso; pp.213-216.non the exact prac-4 SOUTH WEST AFRICA
Commission'sreport, it is imrnediately apparent that Respondent's past
and present attitude and intentions totally destroy Applicants' original
charge relating to political rights'.It is quite clear that the Xative popu-
lation is, within the framework of Respondent's general policy, being,
and will be, assisted to develop self-respect, responsibility and ski11in al1
aspects of government and administration, based on full respect for their
own cultures, traditions and institutions.
6. In the light of the aforegoing, it is not surpriçing to fînd that Appli-
cants' statement of their case concerning Government and Citizenship
in the Reply exhibits a major shifting of ground when compared with
the hfemorials. They are unable to persist with the allegation that Res-
pondent is, with oppressive intent, preventing the Xatives from acquiring
any significant political rights at all. Theadvancement of the Bantustan
programme in South Africaitself, particularlÿ the developments in regard
to the Transkei, andthe Odendaal Commission'sreport and Respondent's
reaction thereto in regard to South IVest ilfrica, made it clear that Res-
pondent was allowing to the Natives, and assisting and encouraging them
to acquire, a11the things advocated by Applicants in the Memorials, Le..
progress towards self-respect, responsibility and ski11in al1 aspects of
citizenship and government. The only difference was that these facilities
would be acquircd by the members of each group in a horneland of their
own, that there u,ould in South West Africa be no central territorial
legislature and government. Applicants therefore had to find a new
basis for attacking Respondent in the altered circumstances, and this
explains their altcred attitude in the Reply. The change regarding Gov-
ernment and Citizenship maybroadlybe said to be in conformity with the
same feature oftheir case generaLlyregarding their submissions Nos. 3 and
4 *,Savethat, to the extent that they may still be said to be basing their
caseon allegationsarnounting to bad faith on Respondent's part, theydo
so very faintly and half-heartedly, as will be shown. An analysis and
evaIuation of Applicants' new approach in the Reply, and of the con-
tentions advanced in support thereof, are given in the next succeeding
group of paragraphs.
II. Andysis and Evaluation of Applicants' Basic Attitude as now Set
Forthin the Reply
7. The first feature to which Respondent wishes to draw attention is
that the subject of Government and C.itizenshipis, in the order ofpriority,
relegated to third position, after Education and the Economic Aspect. In
the Applications this complaint came first 3.In the Mernorials it was
shifted into secondplace, after the economic aspect, Now educationcomes
into the first position, and the chapter on Government and Citizenship
goes down into third place. This procedure may be a naive attempt at
obscuring the fact that political domination of the whole of South UTest
Africa by African Natives is the ovemding goal of the present proceed-
ings 4. Orait may be due to realization on Applicants' part that, in this
most cwal aspect ofthe whole case, they have no evidence of any weight
1 Vide para. 'r. supra.
Videsec. A,paras. 1-10,supva.
' Vide II, pp446-448.(paras. 30-34). RE JOIXDER OF SOUTH AFRIC.4
5
which could substantiate the charge of deliberate oppression o~ginally
brought against Respondent l.
, For the presciit Respondcnt merely wjshes to emphasize that in the
task of achieving the objectives of the Mandate in the difficult circurn-
stances existing in South West Africa, a fair and just solution in the politi-
cal sphere, for everybody concerned, is obviously the matter ofoverriding
importance. Educational and economic policies, especially in a territory
with such adiversity of population groups as South West Africa, cannot
be determined in vacuo, but must necessarily be in accord with the policy
found to be desirable in regard to the political futureof the various peoples
-the determinative factor being whetlier the objective is an integrated
comrnunity, within the frameivork of asingle territorial unit, or differen-
tiated devclopment of the various groups towards separate self-determi-
nation for each. The same considerations as for Education and the
EconomicAspect apply to policy (especially aspects in serious controversy
in this case) pertaining to Security of the Person, Rights of Residence
and Freedom of Movernent.
Incidentally, the overriding importance of sound political development
may also be illustratecl with reference to events in other territories in
Africa. No educational or economic policy can compensate, e.g., the
unfortunate people of Rwanda for the utter chaos and misery which have
resulted from the brcakdown of the political system decided upon for
that territory 2.
Respondent, for thc above reasons, deals first and foremost with the
subject of Government and Citizenship. Because of Respondent's con-
viction that separate development is in this crucial sphere essential for
promotion to the utmost of the well-being and progress of the people5 of
South West Africa, it follows naturally that it has correlated its policies in
the other respects mentioned with the basic objectives and requirements
of separate development-failure to have done so would indeed have con-
stituted a dereliction of duty on its part. It follows further that policies
pursued in the other spheres in question, can only be explained and
understood in proper perspective after thorough consideration of the
relative advantages and disadvantagcs of the rival policiesinthepolitical
sphere. \men, therefore, Applicants Say that-
"[iln respect of Government and citizenship, Respondent's poli-
cies .. .are ruthIessly consistent with its . . . policy oapartheid, or
separate development, and are merely specific measures of im-
pleinentation thereof 3",
Respondent wishcs to correct them by streçsing that future political
developments, and particulnrly the fonn in which self-determination by
the various groups is to become a meanjngful reality, are the matters
which constitute the very essence of the whole policy of separate
development .
8. The nest significant feature of Applicants' present exposition
regarding Government and Citizenship is thefact that they now explicitly
rest their case in that regard upon oneso-called "decisive major premise",
which accords precisely with that which Respondent in the Counter-
l Vide para. 5,supra,and paras.12-13,infra.
2 Vide sec.E. Annex VI1 to Chap. III. supva.
IV, p. 440.6 SOUTH WEST AFRICA
Memorial considered to be an unexpressed premise of Applicants' case as
set out in the Mernorialç l.This premise is to the effect that there should
be no differentiation between theinhabitants of theTemtory on the basis
of their membership of the various ethnic groupç, and that they should
al1 be integrated into "a single territorial unit", with universal adult
suffrage. So Appiicants submit that-
"... the policy of apartlzid is repugnant to Article 2, paragraph 2,
of the Mandate precisely because the 'distinctions and differentia-
tionç' which it imports into the lives of the inhabitants of the
Territory are based upon mernbership ina 'group',rather than upon
their qualities and capacities as individuals ".
They add :
"The unacceptable purposes and consequences of such a policy
constitute the decisive major premise upon which Applicants reçt
their case; al1 other premises, arguments and conclusions are
incidental to, and derive from, this central premise ";
and they rely in this regard on alleged "relevant and generalIy accepted
norms", which-
". .. include the institution of universal adult suffrage and the
promotion of participation on the part of al1qualified individuals in
al1levels of government and administration, within the framework
of a single territorial unit ".
It is solelyupon this "decisive major premise" that Applicants proceed
to make factual aliegations directed at showing that, in the sphere of
Government and Citizenship, Reçpondent has failed in its duty as regards
the Nativeinhabitants. This is evident not only from the above formula-
tions themselves, but also from the form and contents of their specific
allegations, as will be noted in due course. The extreme significance of
this feature is further considered in the succeeding paragraphs.
g. Outside of the said "major premise", Applicants apparently no
longer clairn to have establiçhed any case against Kespondent in the
çphere of Government and Citizenship, on the basis of mala fidesor at all.
Thus, Applicants do not, e.g., allege that the Respondent Government
does not bona fideintend to pursue the line of development recommended
by the Odendaal Commission-any such suggestion would naturally be
ridiculous. Applicants indeed firmly accept Respondent's expressed
intent in this regard, even speaking of itas something "conceded" ' by
Respondent; and their attitude is that Respondent's policy-
"... would be aggravated and rendered even more repugnant to
[Article 2, paragraph 2,of the Mandate], by the policies projected
in the Report of the Odendaal Commission ".
Thereby the emphasis reverts to the "major premise" of what may be
termedintegration vevsus separate development. Respondent, therefore,
l IV,p. 440.2, sujwa.
' Ibid..p. 441.
' Ibid.. p. 324:"Respondent'sfixed determination to extend to the Territory of
South West Africa the system of 'territorial apartheid' is conceded by Respoadent
in its Pleadings herein, and codrmed by its endorsement of the arguments and
findings of the Odendaal Commission." (Footnotesomitted.)
'Ibid., p. 444. REJOINDER OF SOUTH AFRlCA 7
proceeds to consider on what grounds that premise is sought to be
supported.
IO. In their Statement of Law lApplicants make it clear that they rest
their aforesaid approach on the alleged existence of ". .. relevant and
generally accepted noms by which the obligations stated in Article 2,
paragraph 2, of the Mandate should be measured ..." 2.
Although not expiicitly referred to by name, the alleged "legal norm of
non-discrimination or non-separation" 3is clearlv intended to be included
arnongst these norms, as appêarsfrorn the first passage cited in paragraph
8above. Remondent has alreadv dealt fullv with Applicants' contentions
regarding tGs alleged norm, and has in"& submission demonstrated
conclusivelv that no such norm is contained in Article 2 of the Mandate
oihe&içe binding upon Reçpondent, but that, on the contrary,
differentiation on the basis of ethnic groups is legally permissible in terms
of the Mandate, and dues not Pr se conçtitute a violatio ofnthe provisions
thereof 4.Respondent, thereforc, need not repeat its argument in this
respect.
of "noms" that "have been established notedby the United Nations"ak 2.Such
<,
norms" are said to be descriptive of "... principIes and .processes
generally accepted as applicable in respect of government and citizenship
in dependent areas" 6,and to include, as noted above ',
". .. the institution of universal adult suffrage and the promotion
of participation on the part of al1qualified indivjduals in al1levels
of government and administration, within the framework of a single
territorial unit ".
Xespondent's first comment isthat when regard is had to the suggested
contents of the alleged "noms", tiiey clearly amount to no more than
instances of practical application of the alleged "norm of non-discrimi-
nation or non-separation" in the sphere of Govcrnment and Citizenship
in dependent territones. For this reason alone, and considering the non-
application ofthelatter alleged norm, it would follow that the suggested
norms for more particularized application cannot possibly exist, at any
rate not as legally binding upon Respondent. Secondly, however, as
Respondent has already demonstrated < tthere is no possibility of such
alleged "noms" having been "established" as legal des objectively
defining Respondent's obligations under the Mandate, by the United
Nations organs in question, i.e., the Trusteeshjp Council and the General
Assembly.
The above considerations, therefore, dispose of any possibility of Appli-
cants' so-called "decisive major premise" being supported by purely
legal considerations, whereby ethnic differentiation in the sphere of
IV, pp.441-442.
* Ibid.. p.44r
Vide sec.A.para. 7. andsec.B, para. 1,supra.
Vide sec.B. supra, especially conclusion in para. 38 thereof.
Yide sec. E, Chap.III, parasIand 2,supra.
Ih'd., p442.
Yide para. 8.supra.
Vide sec.E.Chap. III, para.2,supra.8 SOUTH WEST AFRICA
Government and Citizenship would $er se constitute a violation of
Kespondent's obligations under the Mandate. It remains to consider
whether the premise is supported by factual considerations in the light of
the general duty imposed by Article z, paragraph 2, of the Mandate.
XI. As Respondent has also indicated l,it iç possiblethat Applicants
rnay, in speaking of the "norms" alleged to have been "established by
the United Nations" 2, have intended to use the word "norms" not in
the strict sense of binding legal rules 3-or not onEyin that sense-but
as mealiing, or including, what may more properly be called "~tandards"~,
i.e.,practices, theories or policies of government applied or propagated
by others but not in themselves legaily binding on Kespondent. If so,
Applicants' reference to the "norms" would constitute an attempt to
justify or support their "major premise" on a factual basis, viz., that in
order to comply with the obligation to promote well-being and progress
to the utrnost in the sphere of Government and Citizenship, the method
to be employed is that of non-separation and attempted integration, and
that, accordingly, the method of differentiation and separate dcvelop-
ment is to be rejected.
Respondent has already demonstrated that, in so far as this may be
what Applicants set out to establish, their attempt has failed lamentably,
i~zterdia, for the following reasons:
(u) the alieged standards of non-separation and attempted integration
were not even uniformly applied in regard to trust territories,
partitions having been ayproved, by the self-same United Xations
organs, in the cases of Ruanda-Urundi and the British Cameroons 5;
(6) in regard to cases where the approach was one of non-separation
and attempted integration, Applicants have not evcn attempted
to show that relevant circumstances in South West Africa are
identical or closely analogous =;
(c) inost important of all, results of efforts to force togetlier ethnic
groups and peoples which prefer to retain their separate identities,
have proved so disastrous, not only in a numbcr of newly indepen-
dent African territories generally, but also in the case of some of
the very trust territories spoken of by Applicants, that Respondent
can surely not be blamed for dcclining to apply such "standards"
in South \L'estAfrica, let alone be accuçed of bad faith in so doing 7.
12. Apart from isolated~points of criticism-to be dealt with in due
course-conceming particular aspects of Respondent's policy in the
sphere under consideration, the above constitutes the only material
and argument offered by Applicants, in the whole of their chapter on
Government and Citizenship, in attempted çubstantiation of their so- .
called "decisive major premise".
What is of particular significance isthat Applicants have fniledentirely
to establish that Kespondent, in deciding upon a policy of differentiated
development of the various ethnic groups toward separate self-realiza-
l Sec. E,'Chap. III, para. 3. sïpra.
* IV. p.qq Iand para. IO,supra.
Videsec. C,para. 34, supra.
' Videsec.E, Chap. III,especially paras3 and 13-24.
Ibid., para. 13, infra.
Ibid., para. 3, supra.
' Ibid.. paras13-24,infra. REJOINDER OF SOUTH AFRICA 9
tions in prcference to attempted integration, has been actuated by bad
faith, in tlie sense of an improper motive to oppress the Natives deliber-
ately for the benefit of the Whitepopulation. In fact, Applicants can hardly
be said to have made a serious attempt to furnish proof, in the sphere of
Government and Citizenship, of such a proposition. This applies not oniy
to the contents of the chapter in the Reply headed "Governrnent and
Citizenship" l,arid of Annex 7 pertaining thereto 2,but indeed also to al1
discusçion of the political aspects of Respondent's policies as offered in
regard to general policy earlier in the Reply 3,including the attack there
made on the so-called "System of 'HomeIands' or 'Territorial Apart-
heid' " 4.It is true that, in tliese earlier portions,certain broad andsweep-
ing allegations, involving bad faith in the abovc sense, are made But,
as has been shown " Applicants have failed to provide any acceptable
proof or substantiation of these extravagailcies, or to correlnte them with
the indisputable facts regarding the projected development of self-
governing nations in the various homelands. In dealing ,shortly thereafter,
with the "System of 'Homelands' " itself, Applicants base their attack,
firstly, on the premise that such etlinic group differentiation is $er se
iilegal 7,and, secondly, on the propositions that such homelands would be
neither politically nor economically viable 8.Although in thelatter regard
offering some purported criticism regarding the meritç of the "systern",
and regarding the alleged manner of its constitution in South Africa-
rnatters which have been fully dealt with 9-Applicants here also signally
fail to establish bad faith on Respondent's part 9. Also the Annexes
(Nos. I to 4) with which Applicants associate themselves in this regard,
do not in any way succeed in providing the proof in respect of which
Applicants themselves have failed 9.
13. From the above it is clear that Applicants have, in respect of
Government and Citizenship, totally failed to establish any case in la~v
against Respondent. Due to failure of al1alleged "legal norms", properly
so-called, the only possible cause of action for Applicants could be bad
faith in the above sensc, as has been shown ID,and thisthey have signally
failed to establish.
Indeed, the Keply exhibits vanous indications tliat AppIicants may
' IV*PP. 439-450,
Ibid. pp. 451-457.
Vide,e.g.,ibid., pp. 272-277.
+Ibid., pp. 312-326.
5 Vide,e.g., ibid.p. 272, mhere "political apartheid" issaid to be one of the
"aspects of life" in respect which "Respondent's policy and practice...isdirected
toward the prirnary end of assuring an adequate 'Xative' labour supply...".etc.-
being the central allegationinthe Reply whereby bad faith is imputed to Respon-
dent. At p. 273 Applicants still refer to "political apavtheid" as involving "[dlenial
of suffrage and restriction of 'non-imiteto the most liinited iorms of participation
in govemment"-exactly as if they have never heard of the Odcndaal Commission's
report and Respondent's reaction thereto.The latter remark applies also to their
summary at p. 274 to theeffect that "under apartheid, the accident obirthimposes
a mandatory life sentence to discriminationrepression and humiliation".
Sec. E, Chap. V, supva.
' IV, p. 318 (para. marked (A)).
* Ibid. (para. marked (B)).
Vide sec.E, Chap. V,supra.
ID Vide Part III,Sec. C,supra.1O SOUTH WEST AFRICA
realize their failure in this respect. Keference rnay, inter alia,be made to
the following :
(a) Speaking of the "System of 'Homelands' ", Applicantç çay that
"if Respondent's good faith were, by itself, an issue in these pro-
ceedings", then certain points made by them l".. .would in itself
raisea serioersquestion of Respondent's malafides" 2.1t willbe noted
that they do not suggest that the have succeeded in establishing
that such "serious question" is to ge answered in the affirmative.
(b) In the whole of the chapter on Government and Citizenship 3,
Applicants do not even make any pertinent allegation which,
either explicitly orin its purport, directly attnbutes bad faith or an
improper motive to Respondent in respect of its policy in the
political sphere. The nearest they come to this is in a quotation
of, and in a reference to, statements rnade elsewhere. In their intro-
duction to the chapter 4,they quote, without comment, the charge as
originally formulated in the Mernorials 5.And they further Say that
"b]u.st as Respondent's policies in respect of education in the
Territory, as shown above, are grounded upon educational apart-
heid, so its policies in respect of government and citizenship are
g~ounded upon political a$nrtlzeid"5. Having regard to statements
made earlier in the Reply regarding educational and political
apartheid ', this may be regarded as an indirect allegation of mala
fides-but it docsnot testify to much confidence in the acceptability
thereof. For the test, when Applicants still speak, e.g., of "Res-
pondent's refusa1 . . . to grant to the indigenous peoples of South
iVest Africa rights of suffrage and participation in government"
such statements are qualified, either expressly or by clear implica-
tion, with reference to the "decisive major premise" of "non-
separation" and attempted integration: in the instance just cited,
the qualification is express, viz.. "within the framework of the
Territorial Government" Failing this prernise, and adopting
Respondent's approach, there dl, of course, be no "Temtorial
Government" in South M'est Africa, and nobody willbe deprived
of participation therein.
(c) In keeping with what is stated in sub-paragraph (b), it is note-
worthy that Applicants' "Conclusions", at the end of the chapter
on Government and Citizençhip 9,are confined to the averment that
".. . Respondent has failed in any degree to promote the well-
being and social progress of the inhabitants ..." 9. The further
averment in the hlemorials, viz.: "To the contrary, the Mandatory
has pursued a systematic and active program which prevents the
possibility of progress by the 'Native' population towards self-
respect, responsibility or skill in any aspect of citizenship or govern-
Which have al1been dealt with: vide sec. E, ChaV, supva.
IV,p. 317. (Italicadded, savefor "mala fides".)
Ibid., pp439-450.
Ibid., p439.
5 Vide para.1.supra.
IV, p.440.
Vide, e.g.ihid., pp272 and 273.
Ibid., p444.
Ibid., p450. REJOINDER OF SOUTH -4FRICA II
ment, whetherTerritorial or local ortribal" ',isnow totally omitted.
Although, as mentioned above =, this passage from the Memorials
is quoted in the introduction to the chapter on Government and
Citizenship 3, the averment is not even formaliy reaffirmcd in the
"Conclusions".
The chapter on Government and Citizenship on the whole
therefore seems to indicate an acknowledgemcnt on Applicants'
part that they have failed, in the political sphere, to e:tablish any
case on the basis of mala fides or improper motives, and that,
failing their "major premise", Le., the alleged "legal norms", their
claim is unfounded.
14. Having regard to what has just been stated, and to the necessary
correlation between policy regarding Government and Citjzenship and
policy in all the other spheres raised in Applicants' cornplaints +,it mut
be abinitiounlikely that Applicants can succeed in establishing mala fides
or improper motives inrespect of any of the other spheres. This matter is,
however, further dealt with below in the relevant sections of this
Rejoinder 5.
Secondly, due to the fact that Applicants, in regard to Government and
Citizenship, rely solely on their so-called "decisive major premjse" ;that
they themselves Say that "... al1 other premises, arguments and con-
clusions are incidental to, and denve from, this central premise" 6;
and that Respondent has demonstrated that the premise is unfounded,
in fact and in law 7,it seemsunnecessary to deal at any length with Appli-
cants' further and more detailed statements in the chapter of the Reply
under consideration. On analysis, such statements are indeed found to be
entireIy incidental to, and to emanate frorn, the said prernise. Neverthe-
less, with a view to maintenance of a proper perspective in regard Io the
factualsituation, Respondent deals briefly with the said allegations in the
further portions of this section.
III. Suffrageand Participation in Territorial Governrnent
15. Applicants react to RespondentJs exposition reIating to the above
aspects in the Counter-Memorial by stating:
"Respondent thus ignores the major point and begs the central
issue: full rights of franchise and citizenship are accorded only
persons classifiedas membersof the 'White population group' .. ,
and they Say further, with regard to Respondent's pIans for future
development :
"Respondent, accordingly, projects the institution of temtorial
apartheid, in which the large majority ofthe inhabitants permanently
will be denied the right to vote for representatives to the central
governing authority or to participate therein 9."
l 1, p.143.
Vide sub-para. (b). supra.
IV, p. 439.
+ Vide para. 7. supra.
' Secs. G to1,infra.
' IV, p.440.
Vide paras. IOand 11,supra.
' Ibid..p. 444.12 SOUTH !\'ES TFRICA
Respondent submits that both the abovc statements "ignore the major
point" in liespondent's expositions. They are both related to, and are
',non-separation"anand attemptede on,integration, which has already been
dealt with fully. On the rejection of such premise and upon irnplementa-
tion of Respondent's intentions, there will be no "central governing
autliority" in the Territory, and everybody will be able to enjoy "full
rights of franchise and citizenship" in the homeland of his people.
6. ~rno&st Applicantç' remainingisolated points of criticisi iç the
following argument adduced by thern:
"Thehoilow and inhumane nature of such a premise [viz., that in
regard to the indigenous groups, the process of adaptation to
modern conditions was foreseen as one that would necessarily Iiave
to be slow,] is obvious; every individual member of an indigenous
group, however gifted, is ordained, by reason of the circurnstances
of his birth, to be 'slow' in 'the process of adaptation to modern
conditions' 2."
It is a laoseqztituto infer, from a statement of thc fact that the process of
adaptation of the indigenous groups to modern conditions would bc slow,
that every individual member of such groups is ordained to be "slow" in
the process of adaptation. Naturally certain individuals show a greater
aptitude in this regard than others. It is conceded that at some stages of
group development, more gifted or developed individuals mayto a certain
extent be limited by the stage of development of their group. However,
such individuals, in Respondent's esperience, constitute a very srnaii
minority of the total membership of the indigenous groups. Moreover,
they have, as at the present stage of progress in regard to the policy of
separate development, almost unlimited opportunities, apart from
responsibility, to employ their talents of leadership in the separate
development of their peopies and their homelands. The large measure of
responsible leadership which can be exercised by the more advanced
members of the indigenous groups, within the framework of a policy of
separate development, is illustrated by the recommendations of the
Odcndaal Cornnlission, referred to above 3. The slight limitations that
may be suffered by a small numbcr of more developed members of the
indigenous groups during transitional stages of development, have to be
weighed in the context of the merits and dements to be considered in
making a choice between a policy of attempted integration on the one
hand, and a policy of separate developrnent on the other hand.
Consequently, when Applicants make the cornplaint that Respondent's
policies so retard individual members of the Native groups that after
40 years of Mandatory adrninistration-
". . . no single member of a 'non-White group' has been found with
the adaptability to exercise the franchise in respect of members of
the Temtorial legislature. None has been found capable of taking
part in the Territorial Government at the political level4",
they attribute to Respondent a contention which it does not advance.
Vide para.12,supra.
IV,p, 440.
Vide para. 3, supra.
' IV,PP- 440-441. REJOINDER OF SOUTH AFRICA I3
Natives, individually and collectively, are excluded from participation in
the institutions of the White group, as Respondent has demonstrated l,
for the basic reason that on a proper weighing of al1the circumstances, the
policy of separate development is, in Respondent's view, to be preferred
to a policy of attempted integration. Applicants, in making such
complaints, are once more, by implication, relying ori their "decisive
major premise" of "non-separation", which has been demonstrated to be
without substance.
17. Applicanis further Say:
"Nor does it sufficeto afford vicarious representation through such
a device as the attendance of the 'White' Secretary for South West
Africa at the Executive Committee composed of four 'Whites' elected
by the 'all-IVhite' Territorial Assembly, 'whenever matters of policy
or administration concerning non-Whites were considered by the
Esecutive Cornmittee' 2."
It ni11be recollected that since19j5 the administration of Native Affairs
was transferred to Respondent's Minister of Native Affairs (now the
Minister of Bantu Administration and Development) and that the field
of activity of the Executive Committee in respect of matters concerning
Natives was limited. Respondent submits that the arrangements rnen-
tioned by Applicants were at the time and in the circumstances satis-
factory transitional measures of administration, whichwere, moreover, in
conforrnity with arrangements in general use in otlter African territones
at the time '. Respondent concedes that such arrangements have become
inappropriate with the progress of development, and has fulIy dealt with
its future plans for development, which \vil1abrogate such transitional
rneasures.
IS. Applicants' unsuccessfd attempt to deny the relevance of policies
followed in other countries 5 has been dealt with elsewhere in this
Rejoinder 6.Sirnilarly, Applicants' reference to policies pursued in trust
temtories has been disposed of 7.
IV. Government within the Native Tribesand
Native Reserves
19. In the Memorialç Applicants contended that in the administration
of the Native reserves al1significant authority is confined to Europeans.
They asserted that-
"[tlhe only semblance of participation by the 'Native' population
is to be found in the rudimentary functions of the 'Native' headmen
and the 'Native' members of the Native Keserve Boards in regard
to the Native Reserves within the Police Zone, and in the elements
of traditional tribal administration under tribal laws and customs
still permitted to the 'Natives' in the Native Reserves outside the
l Sec.E, supua.
= IV, PP 442-443.
Vide III, pI13.
' II,p.433.
= IV, p.444.
Vide sec.E, Chap. III andalso para.II,supra.
' Vade sec.E, Chap.III, supra. SOUTH WEST AFRlCd
14
Police Zone. .. even this shadowy participation is kept subject to
compIete, comprehensive and pervasive control by 'Europeans' l."
20. In the Counter-Mernorial Respondent dernonstrated that the
Native inhabitants of the reserves, far from being entrusted only with
"rudimentary functions" and "shadowy participationJ', indeed took a
significant part in the government and administration of their reserves.
A full exposition was given of the functions of Native authorities in the
reserves andthe nature of their participation in the governmental sphere2.
In regard to the northern territones, Respondent pointed out that the
Native inhabitants to al1 intents and purposes governed themselves
through their chiefs and headmen according to their own laws and
customs 3.It was also shown that Native courts had full jurisdiction over
members of their own tribes except in respect of capital and other serious
crimes 4.
As regards the reserves in the Police Zone, Respondent showed that for
each reserve headmen, elected by the residents at a representative meet-
ing, were appointed to control the reserve under the supervision of the
superintendent. Furthemore, for every reserve a Reserve Board had been
constituted ivhich consisted of the Bantu Affairs Commissioner or the
superintendent ofthe resen7e,the duly appointed headmen and not more
than six elected adult male Natives. This Board, apart from assisting in
the administration of the trust fund of the reserve, assisted the super-
intendent -enerally in the development of the reserve s.
Zr. In their Reply Applicants commence the section headed "Govern-
ment within the 'Native' Tnbes and 'Native' Reserves" by repeating
iflsissimisverbisthe charge formulated in the Mernorials 7.From the sup-
porting discussion contained in the sections of the IXepIyunder considera-
tion, it appears that Applicants, while no longer emphasizing the alleged
"shadowy participation" of Native authorities in the government and
administration of their reserves, raise the following objections to the
system of administration which has been developed by Respondent in
respect of the Native reserves:
(a) that this system does not "provide an acceptable substitute for
rights of franchise" 8;
(6) that Native chiefs and headmen "are appointed by, paid by,
answerable to, and rernovable by, Respondent" 6;
(c) that the Native inhabitants of the Temtory, who are in sorne re-
spects subject to the Adrninistrator's authority, "have no voice or
vote in respect of his selection or the manner of exercise of his
powerç" 9 ;
(d) that the Natives "have no effective control" over the expenditure
of funds from the various trust funds Io; and
'1, p.143-
111,pp. 114-130.
3 Ibid., p. 118.
4 Ibid., pp.116,119and 120.
5 Ibid.p. 128.
6 IV,p. 448.
7 Vide para. 19,supva.
IV,P. 442.
'0 Ibid.pp. 443 and 449. REJOINDER OF SOUTH AFRICA I5
(e) that "poIicy making with regard to reserve development is entirely
in the hands of 'EuropeansJ ''l.
Before dealing with some particular aspects of Applicants' objections,
Respondent makes the folIowing general observations.
22. It will be seen that Applicants' objections are directed at the ad-
mitted facts, firstly, that the inhabitants of the reserves do not participate
in a central government for the whole Territory. and secondly, that
Respondent through its representatives, at present still exercises control
over the indigenous governmental institutions in the reserves.
As regards the first aspect, Respondent has already shown * that
Applicants' so-called "decisive major premise" to the effect that there
should be no differentiation between the various population groups and
that they should al1 be integrated into "a single tenitonal unit". with
universal adult suffrage, is unfounded. It is consequently unnecessary
to add anything to what Respondent has already stated in that regard.
As regards the second aspect, it is obvious that Applicants cannot
possibly contend that no such control should be exercised, since that
would be tantamount to an abdication on Respondent's part of its duties
and prerogatives as Trustee and Guardian. The gravamen of Applicants'
objections must therefore be that the said control is too tight, and that
the inhabitants of the reserves are consequently not afforded sufficient
participation in the government and administration of their own affairs.
Sufficiency is, of course,a matter of degree, and it is difficult to see how
Applicants can contend that the subject-matter of this complaint does
not fa11essentially within the Respondent's discretionary sphere, where
"differences of opinion could arise" 3,or how they can advance it as a
matter in respect of ~vhich"the violation of the duty to promote .. .is
beyond argument" 3.
The extent to which a dependent people should be allowed to manage
its own affairs in the governmental sphere must necessarily depend on a
nurnber of factors, and especially on the standard of general development
reached by such a people. In Respondent's view the degree of develop-
ment reached by theinhabitants of the reserves in the Territory was inthe
past not such that any substantial increase in powers of self-government
was warranted. This view was based on facts which were set out in the
Counter-Mernorial. So, for example, Respondent pointed to the grave
difficultieswhich were experienced by officialçin getting headmen in the
northern temtones to exercise authority and to take the lead and show
initiative in their respective areas 4;to the efforts required to persuade
chiefs to adopt more just and democratic forms of govemment, including
the use of elders and headmen as counsellors 5;to the problems involved
in exercising control over, and preventing clashes between, the various
tribes livingin alarge and wild area such as the Kaokoveld 6;and to the fact
that in the reserves in the Police Zone tribal lifeand institutions, which
had broken down completely during the German regime, had to be built
w, P.449.
Videparas, 10-12, supra.
1, p. 104.
' 111,p.115.
Ibid..pp.115, 119 and 120.
* Ibid.p,p. 121-124.16 SOUTH WEST AFRICA
up anew l.If regard is further had to the fact that at the inception of the
Mandate the indigenous inhabitants of the Territory were almost without
exception illiterate, it is obvious that decades had to pass before the
inhabitants of the reserves would be ripe for the greater responsibilities
of, e.g.,tlie more advanced type of self-government recently institutcd in
the Transkei 2.
Applicants do not attempt to controvcrt, or even to discuss, the cxposi-
tion in the Counter-Mernorial; yet they suggest that Respondent should
have provided for a greater meaçure of self-government in respect of the
rescrves, without indicating whp, or to what estent, Respondent should
have done so.
23. In the Counter-hlemorial liespondent stated that it contemplated
an evolutionary growth of the traditional institutions of the various
groups in a manner which would permit each group to develop towards
self-determination, \vithout, in the process, preventing self-determination
by others. It was also pointed out that the success of Bantu authorities
in South Africa had suggested that a similar system miglit fruitfully be
applied in the Territory, and that this matter formed part of the topics
then under consideration by the Odendaal Commission 3.
The recommendations of this Commission regarding political institu-
tions in the proposed homelands have been dealt with above 4.As lias
been shown, these include the institution for each of the Native groups,
other than the Bushrnen and the Tswana, of a Legislative Council con-
sisting of non-elected traditional leaders as well as members elected by
the group concerned. The esecutive power of the Legislative Council
is to be vested in an Executive Cominittce, the membership of which \vil1
differ from group to group. It is clear that the implementation of these
recommendations, which have been accepted in broaci principle by
Respondent, will involve the transler of wide lcgislative and executive
powcrs to the aforesaid Councils and Cornmittees, subject, of course, to
temporary further controi by Respondent.
In view of the essence of Applicants' complaints, referred to abovc 5,
one would have thought that they would have welcomed the recommen-
dations of the Odendaal Commission. Instead, Applicants Say that
Kespondent's present policies "would be aggravated and rendered even
more repugnant to [Art. 2, para. z, of the Mandate] by the policies
projected in the Report of the Odendaal Commission" 6.
It is indeed not easy to understand what steps Applicants would have
Respondent take in order to grant to the inhabitants of reserves a greater
degree of participation in the government and administration of their
own areas, and thereby remove the grounds of Appiicants' objections-
Save in so far as the said objections are intended to depend entirely on
the contention that the Territory is to be treated as a single territorial
unit, in the gavernment of which al1 inhabitants are to participate on
' 111,p. 125.
Vide 11,p. 480.
III. p.131.
+ Vide para, 3, supra.
Vi& para. 22,supra.
IV.p. 444. REJOINDER OF SOUTH AFRICA I7
a basis of universal adult suffrage, a contention which has aiready been
disposed of l.
24. ASregards Applicants' first objection referred to above 2, Respo~i-
dent is in full agreement lvith Applicants that its system of indirect
rule with regard to the inhabitants of the reserveç doeç not "provide
an acceptable substitute for rights of franchise", if it is taken for granted
that these inhabitants can profitably exercise such rights. It is precisely
because Respondent believes that the indigenous groups in the reserves
have now reached a sufficient degree of development, that it has accepted
in principIe the above-mentioned recommenclations which envisage,
intea rlia,the election of a number of members of the proposed Legislative
Councils by the groups concerned. Applicants' reactio~i iç to recoil in
horror from the vcry notion advocated by them, for the sole reason,
apparently, that the proposed form of giving effect thereto \vil1 not
bring about Native domination of the whole Territory. Necdless to Say,
they do not thereby establish any dereliction of duty on Respondent's
part.
25. It should be observed that Applicants, by referring to the "details
of arrangements concerning the 'indigenous population groups' in South
1'st Africa" set forth in the Counter-JIemorial, and by stating that
such arrangements are envisaged as 'channels of communication' for
the purposes of providing a 'link' with such groups and maintaining
'close contact' with them" 3, create a misleading impression of the
functions of the indigenous political institutions in the Territory.
Although it is true that Respondent stated tliat it had built up certain
channels of cornmunication-notably the office of Chief Rantu Affairs
Commissioner andits staff-to enable Respondent to be fully acquainted
at al1times with the desires of each group, it was at the same time made
clear that Respondent's representatives for the most part acted purely
in an ndvisory capacity 4.Although the Native authoritiesin the reserves
have not enjoyed direct legislative powers in the past, Kespondent bas
been able to give effect in most cases to the wishes of these duly consti-
tuted authorities,exactly by reason of the links which have been estab-
Iished between itself and the indigenous groups.
26. In connection with their assertion that the Native chiefs and head-
men in the reserves "are appointed by, paid by, answerable to, and
removable by, Respondent" 2, Applicants state that-
"[i]t isnot surprising . . . that Respondent describes eighty-one
chiefs, headmen and tribal councillors as 'officiais'whom 'Respon-
dent employs' ".
In the Counter-Memonal Respondent used the word "official" in its
ordinary dictionary meaning, viz.,"holding office, employed in public
capacity" 6. In the same sense the Administrator of the Territory, Who
also exercises wide powers in respect of the IVhite inhabitants, is an
l Vide paras. 10-12, supra.
Vide para. 21,supra.
IV,P. 442.
* III. pI13.
' IV,p. 443.
Fowler, A. W. and Fowler,F. G. (Eds.), Tlie Conc0.rjovdDictionaryofCuwenl
Englésh,Fourth Edition (1956) ,. 822,S.V."official". 18 SOUTH WEST AFRICA
"official" who is "appointed by, paid by, ançwerable to, and removable
by Reçpondent".
27. It should be observed that the chiefs and headmen in Ovamboland,
the Okavango Territory and the Kaokoveld are notpaid by liespondent.
And, as regards the appointment of chiefs and headmen in the northern
territories, Reçpondent pointed out in the Counter-hlemorial that when
a vacancy occurs, the tribe concerned decides for itself who is to be its
nominee. After arriving at a decision it informs the authorities of its
choice and requeçtç approval thereof. Such approval is a mere formality
and, as far as isknown, no such tribal requeçt has ever been refused.
28. Applicants' third objection l, viz., that the Native inhabitantç of
the Territory, who are subject to the Administrator's authority, "have
no voice or vote in respect of his selection or the manner of exercise of
his powerç" =, is rather difficultto fathom. The Administrator, who is
Respondent's representative in the Territory, exercises wide powers in
respect of al1the inhabitants of the Territory, and neithcr the Europeanç
nor the non-Whites have any Say in respect of his appointment or the
exercise of his powers. To allow the inhabitants of the Territory to
dictate to Respondent who should be its representative in the Territory
and exercise powers in its name, would again be tantamount to an
abdication on Respondent's part of its duties and prerogatives as trustee
and guardian.
29. With reference to the expenditure of money from the various trust
funds which have been established for the Native groups, Applicants
allege that "the indigenous inhabitants have no effective control over
such expenditures since the funds must be 'expended as directed by the
Administrator (now the Minister of Bantu Administration and Develop-
ment)' "
In the '~ounter-~emorial Kespondent pointed out that the tribal
Ieaders were regularly consulted as regards the manner in which the
money in the trust funds should be spent, and that their suggestions
were normally given effect to 4.The purpose of the trust funds is pri-
marily to provide a procedure which will ensure that the moneys credited
to the fundç will be properly adminiçtered and expended upon objects
which are in the interest of the tnbe and calculated to promote its
. welfare. It is for this reason that annual estimates are prepared by the
tribe in consultation with the Bantu Affairs Comrnissioner and his
technical officers; that thetnbe is assisted in the planning of the services
it wishes to undertake, and is guided in the application of rnethods
necessary for the proper control of expenditure from its funds: The
tribe has complete freedom of action in respect of the administration of
its funds, and the Minister's direction is in effect and in practice but
a forma1 approval of a document in which the services and the arnounts
to be expended, accepted as they have been by the tnbe, are set out.
The functions of the Minister and of the officials of his department are,
therefore, in their practical application purely advisory and designed
to assist the tribes in carrying out their functions and in controlling
1 III, p. 116.
' IV,p. 449.
Ibid., and vide para21.supra.
+ I11,pp. 117,Irg, 124and 127. REJOIXDER OF SOUTH AFRICA I9
and expending their funds in a business-like manner and in accordance
lvith sound accounting principles.
30. Applicants' last objection, viz., that "policy making with regard
to reserve development is entirely in the hands of 'Europeans' " l,
pertains to the reserves in the Police Zone Responde~itdoes not deny
that it has in the past exercised direct control over policy making in
regard to these reserves, but it shodd be observed that the members
of the Reserve Boards have been given every opportunity to assist in
this aspect of government. The portion of paragraph 127 of Book V of
the Counter-MemoRal quoted by Applicants in the Keply bears out
this, ratherthan the contrary, which issuggested byApplicants. It shodd
be made clear that the Europeans who exercise the said control are
not the White inhabitants of the Temtory, but Respondent's rep-
resentatives.
V. GeneralAdministration(Civil Service)
31. In the MernorialsApplicants sought to create the impression that
Respondent had by design prevented Natives from articipating in the
CivilService of the Territory beyond "the lowest an least skilled cate-
gones" 4. Thus Applicants alluded to the "practice of 'job-resemation' "
in the Service +,and furthemore alleged that-
"[a]t the administrative levels of the Govemment of the Territory,
in the Public Service, the participation of 'Natives' is minimal.
With few exceptions, 'Natives' are confined to the Iowest levels of
employment, involving neither skill nor responsibility 5."
In their summary of the situation in the Territory with respect to partici-
pation in, inte ria, the Civil Service, Applicants charged Respondent
with having-
"... pursued a systematicand active program which prevmt[ed] the
possibility ofprogress bythe 'Native'population toward self-respect,
responsibility or skillin any aspect ofcitizenship orgovernment ...6".
The only evidence adduced by Applicants in support of their alle-
gations was information, extracted from the 1946-1954 budgets, in
respect of positions held at the time by Natives in six departments of
the Service '.
32. In the Counter-MernorialRespondent pointed out that Applicants,
by the selection of only the said six departments, did not present a true
picture of the CivilService as a ~vhole Afull ex osition was accordingly
given by Respondent of the extent to which Ratives participated in
other branches such as the police force, the nursing profession, the
teaching profession, the prisons service. the Department of Infomiation
and the administration of Native Affairs 9.Respondent further stated
Vide para.21,supra.
* IV,p. 449
Ibàd.p. 450.
' Ibid., p. 142.
Ibid.p. 143. (Italics added.)
' Ibid., pp. 136-137,
III, pp. 164-165.
I&id., pp. 147-155,20 SOUTH WEST AFRICA
that the limitation by Applicants of the period of the extracts to tht:
years 1946to 1934detracted from the tm position in the rg6os, since
Respondent's long-term policy of education and training of the Native
peoples resulted in more and more Natives qualifying for and obtaining
responsible posts each year even in those departments of the Service
selected by Applicants l.
33. In explaining its general policy with regard to the Civil Service,
Respondent pointed out that, in view of the differences between the
various population groups and their past history, it had not been prac-
ticable to treat the inhabitants ofthe Territory as one integrated nation
for administrative purposes. Respondent consequently considered it to
be in the best interests of the various groups to treat each as a separate
entity for the said purposes, as far as this was practicable 2. Not only
did this policy have the effect of giving preference to mernbers of a
particular group when it came to appointrnents to posts designed to
serve that group, but it also served to minimize racial or group prejudice
and friction 3.
LVfiilstconceding that there were as yet few Natives in the higher
posts in the Service, Respondent made it clear that this was due to the
serious lack of adequately qualified Native candidates for employment
in these posts, and not to a deliberate policy of repression '.
-
34. Respondent's exposition of its policies and practjces regarding the
Civil Service further covered, inter alia,early attempts, reported to the
League of Nations, to introduce Natives intothe Service 5,positive steps
taken by Respondent, such as in-training and the lowering of entrance
qualifications, to ençure greater participation of Natives in the admin-
istrative sphere 6; the problems experiencedin other countries in Africain
connection with the "Africanization" of the Public Service ', and Kes-
pondent's declarcd policy of making senior posts, designed to serve any
particular Native group, available to Natives of that group as and when
they achieved the necessary qualifications '. Save for the few respects
indicated hereunder, this exposition is ignored by Applicants.
35. In the Reply Applicants apparently no longer contend that Res-
pondent pursues a policy aimed at the absolute exclusion of Xatives
from any but "the lowest levels of employment" in the Civil Service.
On analysis, thcir contentions appear to be, firstly, that "Respondent's
policies of educational apartheid" are the direct cause of the lack of
Natives with suitable qualifications for the higher positions in the Service,
and, secondly, that Respondent's policy of progressively introducing
Native officialçto senior positions in those areas and departments de-
signedto serve the ethnic group ofwhichthe officia1concerned isa member,
is "a mere corollary of the basic policy of apartheid" Io,and therefore,
1III, p.165.
*Ibid.p,.141.
Ibid.,p. 142.
Ibid.,p. 164.
Ibid. pp. 146-147.
Ibid.. pp. 142and157.
'Ibid., pp. 155-163.
1, p.142.
IV, p.445.
luIbid., p.446. KEJOINDER OF SOUTH AFRICA 21
presumably, in conflict with Applicants' newly formulated "major
premise" of non-differentiation and attempted integration l.
Thus, in regard to Kespondent's explanation of the fact that there are
as yet relatively few Katives in the higher posts in the Service, Applicants
allege that tl-iiscontention if true, is-
"... merely a self-indictment of a course of administration which,
during a period of more than forty years, has failed to produce
numbers of persons qualified to undertake administrative, profes-
sional and technical employrnent in government. Analysis of
Kespondent's policies of educational apartheid explains the result 2."
In another section of this Part of the Rejoinder, Respondent will deal
fully with similar assertions regarding its educational programme, and
will show that its policies in the field of education were designed, inter
dia, to ensure increased participation of rnembers of al1 the groups,
including the Native group, in al1 aspects of administration as well as
in the economic life of the Territory 3. It is conscquently unnecessary
to deal with the above allegation in the present context.
36. Applicants further allege that Respondent's policies-
"... stand in sharp contrast to the view of the Trusteeship Council
of the United Nations that education of indigenous inhabitants 'to
fill responsible posts in th[ej administration' should be carried out
so as to enable such inhabitants to have a 'progressively important
share in the conduct of their own affairs andtkose ofthe Territory
asa whole' 2".
The phrases quoted by AppIicants in the above passage are contained
in a report of the Trusteeship Council pertaining to a particular Territory,
viz., Ruanda-Urundi. In essence, the Council recommended that the
Administering Authority should "provide increased facilities for training
indigenous inhabitants to fill responsible posts inthe administration" 4.
37. In so far asthe observations of the Council may have been intended
to relate toa major premise of territorial integrity, thishas been disposed
of by Respondent above 5.Apart from this aspect, Respondent has in fact
sought to provide just such "increased facilities" for the training of
Natives for responsible positions in the Civil Service of the Territory.
Apart from the fact that Respondent has increased the facilities for
education and vocational training of the indigenous peoples of South
West Africa, the forms of in-service training on which Respondent relies
have had the effect of attracting more and more Native candidates to
the various branches of the Service, and have thereby given to the
Native people an ever-increasing share in the administration of the
Territory 6.
38. It should be observed that Applicants create a misleading im-
pression of the aims and effect of Respondent's policy to treat, as far as
is practicable, each group as a separate entity for administrative purposes.
Vide para. 8,supra.
= IV, p. 445.
Videsec.G, infra.
IV, p. 455where the full passage is quoted by Applicants.
Videparas. IO and II, supra.
fi111,p. 157.22 SOUTH WEST AFRICA
Thus Applicants state that-
"... it is Respondent's policy affirmatively to exclude 'non-Whites'
from senior ranks of the Civil Service, irrespective of qualification.
This is a reflection, and is in implernentation, of Respondent's
policy of regarding higher levels of government and administration
as 'political institutions devised and intended solely for the White
population group' l."
In the Counter-MernorialRespondent stated, with teference to Appli-
cants' allegations that only White perçons are aiiowed to vote at an
election of members of the Legislative Assembly, and that Natives are
excluded by la~vfrom serving as such members, that "these allegations
concern[ed] only political institutions devised and intended solely for
the White population group" 2.This statement was not, as Applicants
suggest by referring thereto in the present context l, intended to signify
that the Civil Semce of the Temtory as a whole or "higher levels" of
employment therein, were devised solely for Europeans, and could not
be read as being so intended. Indeed. Respondent made it perfectly clear
that its policy envisaged the advancement of Natives to senior positions
in the Service in those areas and departments designed ta serve the
Native groups j.
39. If Applicants assume that there are no senior positions in the Civil
Service in the above-mentioned areaç and departments, the assumption
is clearly wrong. In the Comter-Memorial Respondent pointed out that
senior White officialshad in the past been employed in Native areas in
order to guide and assist the Native groups towardç modification and
adaptation of their traditional systemç of government to meet the exi-
genciesof a modern world. At the same tirne, however, Respondent made
it clear that the roleofsuch officialswaspurely of a transitionalcharacter,
andthat it was hoped that it would be possibleto dispense progressively
with these officialsin the administration ofNative areas, untilthey were
replaced altogether by members of the groups concerned.
40, Inherent in the recommendations of the Odendaal Commissionis
the notion that each homeland isto haveits ownpublic servicecomprising
members of the group concerned, ïvho will eventually be able to occupy
positions comparable to the highest categories in the present CivilService
ofthe Territory 5.On the practical sidethe Commissionhas recommended
the institution of an administrative centre for each group with çuch ad-
ministrative officesand accommodation as may be necessary 6, and the
arrangement of courses in management and administration for Natives
employed in the Service 7.
In viewof what has been stated above, Respondent submits that there
=IV,p. 445.
111.p. 132.
3 Ibid.p. 164.
+ Ibid., p. 141.
Vida R.P. 1zjrg64p,. 61 (para.2111,where the Commission "considers it tbe
of the utmost importance that the non-White3 should constantly, and tothe highest
possibb degvee .e guided towards self-help...and full responsibility in the process
of developing their own homelands in every field. (Italics added.) Vide also para.
3 If), supra.
Ibid.. p. 61.
Ibid.. p259. REJOINDER OF SOUTH APRICA 23
isno substance in Applicants' conclusion that "... Respondent has
failed in any degree to promote the well-being and social progress of
the inhabitants of the Territory .. .",with regard to the GeneralAdmin-
istration of South West Africal.
VI. LocaiJGovernment
41. In the Memonals Applicants charged Respondent with having
"alrnost entirely" excluded the Native population from "participation or
even any semblance of participation" in the government of the estab-
lished local units within the Temtory 2.
Applicants alleged in this regard that "the limited advisory role of the
Native Advisory Boards" constituted the "sole faint approximation of
any kind of participation" of Natives in local government, which
participation was subject to "the firm control of the 'white'localauthori-
ties andthe Adrninistrator" (nowthe Minister of Bantu Administration
and Development).
42. The charge formulated in the Mernorials isrepeated ifisissimis
verbis in the section of the Reply under consideration 3.From an analysis
of the supporting material offeredby Applicants, it would appear, how-
ever, that they now rest their case on two separate contentions, viz :.
(a) that Natives should be allowed to participate in the existing local
govemment institutions on the same footing as Europeans, i.e., to
coin a phrase, "within the framework of a single[urban] unit" ',and
(6)that, even on the assurnption that Native urban communities are to
be treated separately from the White inhabitants of the towns,
Respondent has discriminated unfairly against such communities
by refusing to allow them some forrn of local government, and by
entnisting to White local urban authorities powers "which have a
major impact upon the welfare" of the Natives living bviihinurban
areas 5.
These contentions will be dealt with separately in the succeeding
paragraphs.
43. As regards the first contention, Applicants allege that-
"[tlhe refusal to permit the indigenous inhabitants ... to particifiate
in local government, constitutes a failure 'to promote to the utmost
the development of the preponderant part of the population of
the Temtory' in regard to political advancement. It is submitted
that Respondent has substantially conceded the validity of the
premises underlying the foregoing contention 3." (Italics added and
footnote omitted.)
In support ofthis allegation Applicants proceedto enurnerate anumber
of facts which, according to them, Respondent does not dispute 3.
44. Although it is in broad substance tme that the said facts are not
in issue, Respondent finds it difficult to understand how this can be
regarded as a concessionon its part ofthe validity ofApplicants'premises.
The very kst fact enurnerated by Applicants, namely that "the popula-
l IV,p. 450.
* 1,p.142.
Cf."withinthe framework ofa single territorunit": IV, p441.
Vbid., p. 447.24 SOUTH WEST AFRICA
tion of [urban areas] includes a significant number of non-White
inhabitants" ',çeems to form the basis of their argument, inasmuch as
they regard every urban area asan indivisible unit comprising White and
non-White inhabitants, who should consequently partake in common in
the local government of such area. The true position, however, is that
every urban area in the Temtory comprises separate geographical
portions inhabited by different population groups.
45. In the Counter-Memorial Respondent pointed out that at the
inception of the Mandate Natives were living in a largely unorganized
and haphazard manner on the outskirts of White towns. It was conse-
quently a primary concern of Respondent to see to it that the White
municipal authorities played their part in providing these peri-urban
communities with proper housing and attendant facilitieç such as roads,
water, lighting, sanitation, etc.-facilitieswliich the Natives concerned
couId hardly have establiçhcd if left to fend for themselves.
Kespondent also pointed out thatthe various Native groups preferred
to live apart from the Europeans and from each other, and to have their
own separate schools, clubs, churches, etc. In the light of these prefer-
ences, and of the state of affairs prevailing when the Mandate was as-
sumed, it was onIy natural for Respondent to act in accordance with this
tendency in the provision of pro er housing and municipal facilities for
the various Native groups 9 In fiespondent9s view it appeared to be in
the general interest of the population that this tendency should be re-
spected and given effect to, as was done by means ofProclamation No. 34
of 1924(S.W.A.),which was later superseded by Proclamation No. 56of
1951 (S.W.A.) t.These measures provided for the setting aside of separate
urban residential areas for Natives, which not only çerved to facilitate the
administration of urban communities, but aiso afforded a familiar com-
munity life to those Natives who came into the general unfamiliar White
urban areas. So, too, homogeneouscommunities, with their own artisans,
tradesmen, government servants, etc., could be encouraged to develop
in such residential areas 3.
46. The position then is that the urban areas of the Temtory have
never fomed integrated units, but, on the contras-, have always been
divided into White and non-15Jhitesections. It was consequently only
realistic to provide for separate forms oflocalgovernment for respectively
the White and non-White inhabitants of urban areas. As far as the
European inhabitants were concerned, Respondent could shortly after
the inception ofthe hlandate allow them participation in modern forms
of local government, viz., municipal councils and village management
boards. In the case of the native groups, however, it was only after the
gaining of a basic degree of knowledge of the organization of urban and
peri-urban societies that they could be introduced to some const~tive
role in the local government of their own residential areas. Aswaspointed
out in the Counter-Memorial, the intermediate stage was sought to be
bridged by a system of Advisory Boards, which were intended, interdia,
as a training ground for wider responsibilities 5.
'IV, p.446.
III, p. 170.
Ibid., p. 180.
' Iba'd.,p. 175.
III, pp. 171 and 181-182. REJOINDER OF SOUTH AFRICA 25
47. In the Counter-l\femorial Respondent also explained that at the
inception of the Mandate most of the towns and villages existing today
had already been established, and a form of localgovernment had already
been instituted. Respondent further pointed out that these towns and
villages had been founded by the early European pioneers as areas for
their own communal habitation, and were never intended for the com-
munal settlement of any of the indigenous inhabitants of the Territory l.
48. With regard to this explanation, Applicants state that-
"[tJhe indefensible nature of the policy implicit in the exclusion of
'non-Whites' from agencies of local government is compounded,
rather than justified, by Respondent's assertion that towns and
villages of the Territory 'were never intended for the communal
settlement of any of the indigenous inhabitants ... and indeed
such towns were something forcign and unknown to the Native
population' ".
Respondent fails to understand how its observation regarding circum-
stances which existed as facts at the inception of the Mandate, can be
said to conipound the "indefensible nature" of its policy of providing
separate forms of local government for the White and non-White inhabi-
tants of urban areas 2.As already explained, the state of affairs prevaihng
in and around urban areas when the Mandate was assumed, was one of
the reasons that influenced Respondent inproviding for the establishment
of separate Native residential areas 3.Apart from their bare statement,
quoted above, Applicantsdo not even attempt to show that these reasons
are unsound or why Respondent should have adopted a policy of ad-
ministering the White and non-White sections of the towns and cities of
the Temtory as integrated units. Instead Applicants merely allege that-
"... Respondent has not justified, and cannot justify, exclusion
from local government of perçons solelyon the basis oftheir member-
ship in a 'group', rvithout regard to individual qualification ",
and that-
"Respondent misdescribes this policy as a 'system of indirect rule'...
The notion of 'indirect nile', however defined, has nothing in
common with the systematic allotment of status, rights, privilege?
and burdens on the basis of group or race. Apartheidis sui generis'.
49. It isclear, therefore, that Applicants' condemnation of Respon-
dent's policy with regard to local govemment is based on their "major
premise" that in a11 spheres of government differentiation is irnpennis-
sible, and that the Territory as such, as well as the urban areas in the
Territory, should be governed and adrninistered as integrated units.
Respondent has aIready dealt fdly with this premise, and since no
independent argument or factuai information is adduced in suppo?
thereof in the section of the Reply at present under consideration, lt 1s
unnecessary to add anything to whathas alreadybeen stated by Respon-
dent in this regard
III, p. 168.
IV,p. 446.
Vide IIIp. 180and para.45,supra.
vide,P.paras.10-12,supra.26 SOUTH WEST AFRICA
50. With regard to their second contention l,Applicants merelyenu-
merate anumber of powersoflocalurban authorities "which have a major
impact on the welfareof al1the inhabitants subject to their jurisdiction",
with a view to showingthat the statement in the Counter-Mernorialthat
Respondent has looked upon the administration and control of Native
Affairs in the Territory as its own responsibility 2, does not "justify
exclusion of 'non-Whites' from localgovernment" (italics added).
It is obvious that Applicants fail or refuse to appreciate the aims of
Respondent's policies with regard to local government. While it is trne
that Natives are not allowed to participate in the local government units
which have been designed for the White group, Respondent made it
perfectly clear in the Counter-hlemonal that it has sought systematicaIly
to guide developments so that the indigenouç inhabitants may be fitly
includedin the local government of their own urban residential areas +.
Respondent explained that it envisaged the replacement ofthe system of
Native Advisory Boards, which had served as a training ground for
wider responsibilities during the intermediate stage of the development
of the urban Native communities, by a system similar to that of Urban
Bantu Councils in South Africa 5. And the Odendaal Commission has
indeedmadea recommendation to this effect 6,which,when impIemented,
wiI1ensure to the Native inhabitants of urban areas wide legislative and
executive powers in respect of their own areas.
gr. In their Reply Applicants completely ignore Respondent's exposi-
tion in the Counter-Memorial regarding such a system for South West
Africa and also the Odendaal Commission's recommendation in that
regard. Yet Applicants bluntly allege that it is Respondent's policy to
exclatdeNatives from local government.
52. As regards the powers whichWhite urban authonties rnay exercise
in regard to Native urban areas, Respondent pointed out in the Counter-
Memonal that considerations of practical expediency had led Respon-
dent to delegate someof its powersof management and administration of
Native af£airsin urban areas to the urban local authorities, thereby in a
sense constituting such authorities Respondent's agents in this regard.
At the same time, however, Respondent made it ciear that it had reserved
to itself certain powers whereby strict control can be exercised over the
activities of these authorities 7.
Applicants do not deny that Respondent exercises control over the
mariner in which urban local authorities exercise the powers enumerated
in the Reply. Indeed, they admit that these powers are "subject to
varying degrees of control on the part of higher authonty" 8. Applicants'
objection, therefore, seems to be directed at the very fact that such
powers have been delegated, albeit with reservations, to urban local
authorities.
Until suchtime as the degreeof development ofthe Native inhabitants
lVide para.42, supra.
* UI, p. 173.
+ III, p. 168.
Ibid.p..188.
Vide para.3 (g). supra.
III, p. 185.
8 IV, p.448. REJOINDER OF SOUTH AFRICA 27
of urban areas wodd justify sorne other arrangement, the powers of
management and administration of Native affairs obviously had to be
exercised by some or other White agency. In Respondent's view these
powers could best be entrusted to the urban local authorities concerned,
which had intirnate knowledge of local conditions. Respondent conse-
quentIy fails to see how any objection can be raised to the delegation,
witli rese~ation of control, of the said powers to the municipa1councils
and village management boards of the Territory.
53. Finally, since Applicants' incomplete rendering of the powers
provided for by section 17 (1)of Proclamation No. 56of 1951 (S.W.A.)
creates a misleadingimpression *,Respondent deems itdesirable to point
out that any fine recovered in a case in which an urban IocaIauthority
acts açprosecutor, must be paid into the Native revenue account, and be
utiüzed for the benefit of the Rative residents of the urban area con-
cerned 3.
54. In the resdt there is no substance in Applicants' allegation that
"Respondent has failed in any degreeto promote the well-beingand social
progress of the inhabitants of the "Terntory" in respect of local govern-
ment '.
VII. Conclusion
55. Respondent submits that in the crucially important sphere of
Govemment and Citizenship, Applicants have entirely failed to substan-
tiate their charges, either asoriginally formulated in the Memorials or
as now advanced in the Reply. In particular Applicants have failed to
establish that Respondent's poIicy of separate development violates
Article z, paragraph 2, of the Mandate, whether by reason of any norrn
alleged to be contained in the said paragraph, orby reason of an alleged
motive of deliberate oppressionofthe Native inhabitants ofthe Territory,
or for any other reason.
XXX,Prp.118.o56 of1951,sec. 17(1)in The Laws ofSouth WestAfrica rg-jr, Vol.
IV,p.448(parae .).
' Proc. No. 56of1951, sec.17(2)in The Laws ofSwlh West Africa xgjr,Vol.
XXX. p. 118.
+ IV,p.450. Section G
Education
CHAPTER 1
INTRODUCTION
I. Part I of Chapter IV B.3.c. of the Reply dealswith education, and is
described by Applicants asan "analysis" ofthe "measures ofimplementa-
tion" of Respondent's educational policies l.The subject-matter of the
said part is deaIt with by Applicants under the following three heads:
A) General Policy 2;
B) Nature of Education in the Territory ;
IC) Extent of Education in the Territory '.
Thereafter folloïvsan Annex, headed "Racial Separation In Education In
Dependent Territories, As Viewed By The United Nations" 5.
2. The followingchapters contain Respondent's reply to the aforesaid
sections (A), (B)and (C),as uiellasto the said Annex.
3. In common with Applicants' case generally regarding alleged
violation of Article2,paragraph 2,of the Mandate, their case concerning
education exhihits in the Reply a major shifting of ground as compared
with the hlemorials.
In this instance also the original cornplaiwas founded on alleged im-
proper motives on Respondent's part regarding the Natives. In sum it was
said that Respondent was, "by deliberate policy and practice... restrict-
[ing] and shapfing] the education of the young so as to perpetuate the
denial of possibilities for self-improvement and the relegation to a statu
of irnposed inferiority to which the 'Native' population [was] now sub-
ject" 7.In the Counter-Mernorial8 Respondent on this basis dealt fully
with ali aspects of the charge, and has here abo been met in the Reply
with reliance upon the newly fonnulated so-caiied legal norm of "non-dis-
cnmination or non-separation", rvhichApplicants now seek to introduce
as a new cause of action 9.
Respondent has already demonstrated that no such norm is contained
in Article 2 of the Mandate or is otherwise binding on Respondent 'O.
Indeed, if there were such a norm, Respondent would be guilty of a
violation of its obligations under Article 2 of the Mandate inasmuch
as it admittedly differentiates between persons on thebasis of member-
1Vide headingat IV, p. 362.
IV, pp. 362-370.
3Ibid., pp. 370-386.
Ibid., pp. 386-397.
Ibid., pp. 398-403.
6 Videsec.A,paras.1-15,supra.
'1,pp.159-160.
8 IVidesec.A,paras.7-10,supra.(paras.-4)
Videsec.B. supra. REJOINDER OF SOUTH AFRICA 29
ship in a group, and Applicants' lengthy demonstration of the alleged
effects of Respondent's policy would have been entirely unnecessary, Save
to substantiate their charge of malafides on the part of Respondent in
regard to the Native population-which charge is referred to hereinafter.
4. First, however, Respondent may point out that Applicants have
also in a fher respect, apparently as a corollary of attempted intro-
duction of the alleged "nom", changed their ground in the Reply. This
charge concerns their attitude regardingpopulation groups other than the
Natives, especially the Coloured and Baster groups and it is also in
keeping with the shift of ground regarding their case generally l.
Although Applicants in the Memorialsdrew attention to the fact that
the educationalsystem in South West Africa isorganizedin three separate
divisions, in the sense that separate facilities are "rnaintained for
'Europeans', 'Natives' and 'Coloured Persons' " =, and although, in
dealing with the factual situation, they made vanous allegations to the
effect that there was a dispanty between the educational opportunities
and facilities provided, on the one hand, for Europeans, and, on the other
hand, for non-Europeans (i,e., Native and Coloured perçons) 3, their
complaint in regard to Respondent's educational policies and practices
was concernedsolely with the allegedoppression of the Native inhabitants
of the Territory: the Coloured or Baster groups were not mentioned at
a11 4. Neither were they mentioned in Applicants' Legal Conclusions
regarding education 5.
5. In the Counter-Mernorial Respondent drew attention to this feature
of the Memorials 6.Applicants have responded in the Reply by now
alleging that their complaint concerns al1 the population groups of the
Territory. Thuç they Say with respect to education that-
"[i)n view of the fact that Applicants' submissions have not distin-
guished between the 'European', 'Coloured',and 'Native' groups in
the Territory, and since Applicants view Respondent's policies of
'Coloured' and 'European' educatian aç sharing the essential evils
of 'educational a$arthid', as dramatized in its most severe and
unwho1esome form in Respondent's 'Native' education policy, ~t
will not be necessary to deal with the 'Coloured' policies pu se
except insofar as they are intenvoven with the policy in respect of
'Natives' ".
Respondent has already dernonstrated-in its submission conclusively
-that Applicants, in formulating their submissions in the Memorials
regarding alleged violations of Article 2 of the Mandate, did in fact
distinguish between the different population groups and that the com-
plaint then made by them involved only Respondent's treatment of the
l Vide sec. A, paras.11-15,supra.
1,pp. 152-153.
162)Vconcerning coursesofainstruction;p. 134 (para.166) concerning school oppor-
tunities;p. 155 (paras. 169-170) concerning trainingof nurses and p. 157(paras.
178-179) concerning higher education.
+ Vide 1, pp. 159-161.
' Ibid., pp. 165-166.
III, p.342 (para.6 (b)).
' IV, Pp 363-364.30 SOUTH WEST AFRICA
Native group l.This general exposition of Applicants' caseas originaily
presented in the Mernorialsand as sought to be extended in the Reply,
applies to their complaints regarding al1 aspects of government, in-
cluding education.
In so far as Applicantç' above contention is intended to rest purely
on the alieged norm of "non-discrimination or non-separation", it falls
together wth Respondent's demonstration of non-application of any
such nom 3.In so far asit may be intended to be included in the factual
aspects of Applicants' cornplaint, it is further referred to below 4.
6. Applicants do not rest their case solelyon their new cause of action,
based on the so-called legal norm of "non-discrimination or non-
separation", but, as has been shown 5,they continue to rely on their
original charge of a deliberate pracess of unfair discrimination ngainst
the Native inhabitants of the Territory. Thus, in regard to education, the
allegation of unfair discrimination against the Natives is repeated with
reference to specificpolicies and practices. The followingserve as exam-
ples of allegations made in this connection :
(a) that "Respondent in effect concedes[the] evil of its filan" relative
to Native education 6;(Italicsadded.)
(b) that Respondent's policy "thwart[s]the social progress of 'Natives'
by içolating them from each other, and from the modem world.. ."7;
(Italics added.)
(c) that "such policieshave as their urfioseand inevitableconsquence,
restriction of the 'Native' inha t.tants of the Temtory to their
isolated, pre-industrial, tribal groupç . . .8; (Italics added.)
(d) that "[tlhe 'Natives'have thus been delegntedth duty of firumotion
of lheir own social firogresswhich, in the Alandate, was entnisted
to Respondent .. ."9; (Italics added.)
(e) that the alleged discrepancy between the expenditure on Native
education and European education "is a per se indication that
Respondent has, from the inception of the Mandate, neglected the
'Nativ pop'ulafim, to the advantageofthe 'European'fiopzllation" Io;
(1talics added.)
(f) that "circulanties exist in every aspect of the education of 'Nafives'
in the Territory. Such patterns rest upon the same assumptions,
and move towards a cmmm objective ... al1 of these aspects
relate to, and are informed by, the essentialdesignand assu?nptiolas
of apartheid" ll.(Italics added.)
7. As was the case in the Memorials, allegations in the Reply of the
kind aforementioned, viz., ofoppressiveand unfair conducton the part of
Respondent, are limited to the Native inhabitants of the Territory,
l Videsec. A,paras. 11-15,supra.
2 Vide para.4,supra.
a Vide para. 3. supra.
' Videpara. 7, infra.
Vide sec.A,paras.9-10, supra.
IV, p. 377.
Ibid., p. 378.
a Ibid.,p.380.
Ibid., p. 393.
l1Ibid., p. 397. REJOINDER OF SOUTH AFRICA 3*
and no independent charge of çuch a nature is made in regard to the
Coloured population group. In fact, Applicants disavow an intention of
makingsuch a charge when, in contrast to thestatement made earlier in
the Reply to the effect that Respondent's policy and practice is "directed
toward the primary end of assuring an adequate 'Native' labour supply
in the Territory" l, they aver that in the case of the " 'Coloured'per-
sons .. .no çyllabus is required for their instruction as manual labourers,
as in the case of the 'Natives' " 2.They even Saythat "[tlhe education of *
'Coloured' children 'has been promoted in prilzciple to equality with
European education' " '.
They do, however, state :
"Respondent's policy of educational apartheidwith respect to the
children of 'Native' perçons within the Territory inevitably distorts
the socialperspective and political and moral outlook of the children
of 'Coloured' or 'European' inhabitants. As such, the 'Native'
education policy is, in itself, a violation of Respondent's obligation
to promote to the utrnost the material and moral well-being andthe
social progress of al1of theinhabitants of the Temtory +."
Applicants do not Say whether their contention is that the aiieged
adverse effects of Respondent's policy are dueto the mere fact of differen-
tiation between the population groups in the Territory, or to the further
element which is alleged to pervade Respondent's policy with regard to
the Natives, viz., unfair discrimination and oppression. Furthemore,
Applicants tender no evidence to substantiate the statement that "the
social perspective and political and moral outlook" of the children of the
Coloured or European inhabitants is in fact distorted, whether by apart-
heid or at all. There is alço nothing to show that if any such distortion
should in fact exiçt, it would be the result of any of Respondent's
policies, and not of an outlook arising from factual conditions afiecting
the various population groups, such as different stages of development,
different moral and social standards, different habits of thonght, etc.,
which exist quite independently of any governmental policy.
Applicants' contention in this regard is also basically unsound inas-
much asit rests on a false premise, namely that Respondent's policy of
separate development is designed for the "benefit and privilege" of
certain sections of the community only. Rcspondent has always con-
tended, and has demonstrated 6, that its policy iç designed to benefit
the population of the Temitory as a whole. This is so in al1 aspects of
government, including the education of the various population groups 7.
The whole idea that there are certain groups-Ewopean and Coloured-
"whose benefit and privilege are purported to be senred" by the policy
of aparflwid 5,is foreign to the basic principles of the said policy. And the
application of this idea in formulating an argument that Respondent's
policy of educational apartlteid with respect to Native children has a
' IV, p.272.
Ibid., p. 363.
4 Ibid.p,.364.2.
Ibid. p.258.
U, pp. 457-488 and sec.E, suprcz.
III, pp.353-406.32 SOUTH WEST AFRICA
detrimental effect on European and Coloured children. suffers lrom the
same basic defect.
Respondent has not denied that in its practical effect the policy of
separate deveiopment has certain disadvantages. nor that in its implemen-
tation at its present stage of evolution the various population groupsmay,
in certain respects, expenence inequalities-in particular respects, some
groups more so than others. This is so,however, by reason of the different
circumstances of the vanouspopulation groups and not because of any
intent or design to create or maintain benefits and privileges for, or to
discriminate unfairly against, certain groups, or, as Applicants allcge, to
oppress deliberately a particutar group, viz., the Native group. Further-
more, Respondent is not aware of the existence of any exceptional
measure of distortion of "social perspective and political and moral
outlook" on the part of members of any population group. To the
extent that any such distortion might exist at all, the matter shouid be
considered in the light of the ultimate ah of Respondent's poiicy of
separate development, which is the creation of separate, independent
and self-respecting communities which ni11be less inclined to such pre-
judices, apprehensions and outlooks as might manifest themselves in
inter-group relations at the present transitionalstage of development, and
which will, in Kcspondent's submission, be free from the more serious
prejudices, frictions and struggles which are bound to arise under any
policy of attempted integration of the different population groups.
8. The real issue at present, however, is not whether Respondent's
policy has certain disadvantages. It concerns the question whether, seen
as a whole and in their practical effect, the advantages of the system for
al1theinhabitants outwcigh, or are likely to outweigh, the disadvantages
that are or rnay be suffered in the implementation of the system by the
various population groups. This question is,of course, not prescnted to
the Court with a view to possible substitution of its opinion for that of the
hiandatory, but as part ofthe inquiry into the issue of good or bad faith l.
For this purpose objective evaluation, through weighing of advantages
and disadvantages, 1srelevant only in so lar as the result might indicate
whether or not a governmental authority, having an honest approach to
the problems of the Temtory, codd consider such policies and measures
suitable for promoting to the utrnost the well-being and progress of aii
the inhabitants of the Temtoy =.
9. As will appear from the various chapters below, in which Respon-
dent deals with Applicants' allegations regarding particular educational
policiesand practices, Applicants have not succeeded in establishing any
charge ofimproper motives on the part of Respondenttowards the Native
inhabitants of the Territory and their education.
In regard to the Coloured group Applicants Say that, inasmuch as they
view "Respondent's policies of 'Coloured' and 'European' cducation as
sharing the essential evilsof 'educational aparthid', as dramatizcd in its
most severe and unwholesome form in Respondent's 'Native' education
policy, it will notbe necessary to deal aith the 'Coloured' policies fier se
except in so far as they are intenvoven with the policy in respect of
'Natives' " 3.
Vidc sec.C, paras20-39.supra.
Ibid.para. 39,sup*a.
IV,p. 364. REJOINDER OF SOUTH AFRlCA 33
In the circumstances it wiiibe unnecessary for Respondent to give a
full and systernatic account of education of the Coloured group, and, as
in the Counter-Mernorial ',Respondent will in this Rejoinder deal with
the education of Coloured persons only for the purpose of answering
speciîïc points or allegations made by Applicants with regard thereto,
or for purposes of explanation or clarity, or thc like.
IO. Before dealing with. Applicants' allegations regarding specific
educationalpolicies and practices,Respondentdraws attention to a further
matter raised by Applicants in the introductory portion of the Reply
dealing with education, viz. :
". .. Respondent's frequent references to practices in other African
States, including those of Applicants, are wholly irrelevant to the
present proceedings, inasmuch as there is no other African State
subject to Mandate, nor any other State, anywhere in the world,
which practices the policy of afiartlreid ".
Earlier in this Rejoinder Respondent dealt generally with the above
contention andillustrated why references to other countries, including the
Applicant States, are relevant for certain purposes '.In addition to what
has been stated there, liespondent points to the foIlowing considerations
which apply specihcally to the educational sphere.
Respondent's contention is that particular conditions and circumstan-
ces in South West Africa create, as they do elsewhere in Africa, peculiar
problems and difficulties which hamper or retard educational advance-
ment, and, in an evaluation of Respondent's achievements in the
educational field, conditions and practices in other States 14th com-
parable conditions and problems are highly relevant. For example, ifvast
distances and low density of population hamper the development of
education in other countries in Africa, it is logical to expect similar con-
ditions in South West Aftica to retard development s. If school attendance
in other African coiintries is adversely affected by attitudes which seem
to be common amongst people who have no tradition of modern educa-
tion, it is only logicnl to espect that similar attitudes in South WestAfrica
will have a like influence % If an attendance figure is reached in South
West Africa which compares favourably with that reached in territories
more or less similrtrly circumstanced, such result can fairly be taken
to reflect favourably on Respondent's efforts to extend education ?.
If it issound educational policy in an African State to use textbooks
which "illuminate the familiar environment of pupils and reflect their
cultural history" and which are "more relevant to African life and
culture" 9than those used in European schools, such policy cannot be-
corne unsound merely because itis applied to Native (orAfncan) education
in a mandated territory, or in a country where apartheid is applied. If
Africans in an African State consider it a matter of pride, and a matter of
111,p. 342.
IV, p. 36.1.
Sec. A,paras. 21-24,
Videin thisregard II, p. 3 and III, pp. 342-343.
' III, p. 4TI.
Ibid., pp. 444-446.nd407-4 IO.
Ibid.,p.379.
* Ibid.,p.378.34 SOUTH WEST AFRICA
cultural importance, to study African languages and to establiçh an
African language study institute for the purpose l,the establishment of a
Bureau for Native Languagcs in South West Africa for similar purposes
cannot be wrong because of the status of the Tenitory. And it is surely
reIevant to point out that it has elsewhere been recognized that "lan-
guage bamer(s)" and "very large differences in the children's ages,
curricula, and cultural backgrounds" make the teaching of suchchildren
"in the same schools and classes .. .impracticable".
In the circumtances Respondent repeats its submission that the
references made in the Counter-Mernorial to conditions and practices
in other temtories are valid for the purposes intended to be served
thereby.
1rn, p. 362.
aIbid., p. 361.
Ibid.. p. 382. CHAPTER II
GENERALPOLICY
A. Introductory
1. This chapter is devoted to a treatment of the subject-matter of
section (A), of Chapter IV B.3.c.I of the Reply l, in which Applicants
discuss what they term "General Policy" under three heads, viz.,
"Introduction" 2,
"General Policy" 3;and
"Categorization" '.
In chapter 1 above Respondent, in analysing legal aspects of Appli-
cants' case regarding education, also dealt with certain broad allegations
made by Applicants concerning educational policy generally as it affects
the different population groups of the Temtory.
In the following paragraphs Respondent deals witli specificallegations
made by Applicants under the above-mentioned three heads concerning
particular practices and measures applied in implementation of its edu-
cational policies. For convenience the subject-matter will be divided
into two parts, headed respectively "General Policy" and "Categoriza-
tion".
B. Applicants' Aliegations regardingGeneral Policy
2. In their "Introduction" to this part of the Reply Applicants make
certain allegations of which the effect is that apartheid, as it affects the
different population groups in its application in the educational sphere,
is "severe" in varying degrees, and that it is, furtherrnore, intended to
have that effect. Thus they speak of the Native education policy as mani-
festing "educational apartheid" 5in its "most severe and unwholesome
form" *, andthey seek to demonstrate this by referring to the application
of pnnciples of "Dantu education" to Native education in the Temtory,
and, more particularly, to the use of special syllabuses in Native schools,
and to the practice of mother-tongue instruction in such schools. In the
case of education of the Coloured people, on the other hand, Applicants,
while noting that there isalso "institutional apartheid" in sofar as they
are concerned, allege that "[tlhe education of 'Coloured' children, 'has
been promoted in princi9le to equality with European education' " 7.
In this regard they allege, by reference to a statement madeby the South
IVest Africa Cornmittee, that courses, syllabuses and examinations for
1 IV, pp. 362-370.
Ibid.p,p. 362-364.
Ibid., pp. 364-367.
Ibid.p,p. 367-370-
5 Ibid.,p.364.
Ibid..p.363.
Ibid., p.362,36 SOUTH WEST AFRICA
Colouredschool children are the same as those for European children, and
that stepsare taken to ensure the maintenance of similar standards in the
schoolsof these twogroups lAt the same time, however, Applicants point
to differences between European and Coloured education with reference
to differing measures concerning compulsory education and ages of hst
admission to school, and they draw the conclusion, as expressed in the
words of the Committee on South West Africa, that-
"... Coloured education is devoted to the fundamental aims of
keeping the Cobweds as a group apart, superior to the Natives but
inferior to the Europeans l".
3. Respondent denies that it is part of its poLicyin education, or in
any other aspect ofgovernment, to treat the various population groups on
the basis of any aileged inferiority or superiorityon the part of any of the
groups. In this regard Respondent refers to what has already been stated
in this regard, viz.,that its policy of separate development is not based
on a concept of inferiority or supenority, but merely on the fact of differ-
ences bettveen the vanous population groups 2.Nor is there any question
of a forcible keeping apart of the different population groups, for, quite
apart from the various considerations which make separate educational
facilities advisable from an educational point of view 3, there is the fact,
as already mentioned by Respondent 4, that the different population
groups prefer that their children be taught in schools of their own.
It is true that in the educational sphere, as in other çpheres, the Col-
ouredpopulation occupy a position between that of the European and of
the indigenous groups, but this is not so by reason of policy directed to
achieve this end. 1t isthe natural result of the fact that the Coloured group
has reached a stage of development above that of the indigenous groups,
butstillbelow that attained by the European group. This consideration,
asweiiasothers whichdistinguish the CoIouredfromthe various iiidigenous
groups, e.g., difierences in language and culture, lies at the root of the
differentiation between the Coloured and indigenous groups in education.
Since practically dl the Cobured people of the Territory have Afrikaans
as their home language, it is only natural that they should be instructed
through the medium ofthat language. Colouredchildren therefore receive
instruction in their mother tongue, as Native children do, and there is
consequently no substance in the point which Applicants seek to make
when they Say that " 'Coloured' perçons have no tribal tongue for
'mother-tongue instruction' " 5. .
Likewise, differences in levels ofdeve1oprnent.in culture, social systems
etc., account for the fact that syllabuses used in Coloured schools differ
from those used in Kative schools.
Respondent will deal later with specificalIegations made by Applicants
regarding such matters as syiiabuses, mother-tongue education and
compulsoryeducation. Atthisstage Respondent ismerely concerned with
demonstrating-as it has,in its submission, demonstrated-that there is
no substance in Applicants' allegation that Coloured education is de-
l IV, p. 362.
II.p.471.
III, pp353-406.
Ibid. pp. 367 and 376.
' IV,P. 363 HEJOINDER OF SOUTB.AFFUCA 37
voted to the aim of "keeping the Coloureds asa group apart, superior to
the Natives but inferior to the Europeans" l.
4. After referring to what they cd the "asserted objectives of Respon-
dent's policy of apartheid" 2, Applicants make certain allegations con-
cerning Kespondent's "General Policy" in regard to Native education.
Most of these allegationsdeal with the alleged "intention of Respondent's
'Native' education policy" '.
Applicants refer solely to the system of Bantu education as introduced
in South Africa pursuant to the Bantu Education Act (Act No. 47 of
1953). This appears clearly from their general treatment of the matter,
and from their references to statements which deal specifically with the
said Act and the system of education introduced by it. These statements
are, for the most part, containcd in two speeches made by Dr. H. F.
Verwoerd. The first speech was made in the South African House of
Assernbly on 17 September 1953 when the Bsntu Education Bili was
read for the second time 5,and the second in the Senate on 7 June 1954,
when the hlinister made a statement in regard to Bantu education
policy 6.
Kespondent proposes to deal first with the basic considerations and
airns of the system of education introduced by the Bantu Education
Act, and will do so by referring mainIy to the two aforementioned
speeches by Dr. Venvoerd. Thereafter the allegations macle by Applicants
will be dealt with.
5. In his policy speech in the Senate in June 1954 7,Dr. Venvoerd
dealt with the generul aims of the Bantu Education Act after he had
discussed certain shortcomings of the then existing system. He said:
"The generai aims of thc Bantu Education Act are to remove the
abovementioned defects by transforming education for Natives into
Bantu education; by transforming a service which only benefits a .
section of the Bantu population and consequently results in aliena-
tion and division in the community, into a general service which
wiU help in the building up of the Bantu community 8."
On another occasion, also in the Senate, Dr. Verwoerd again stressed
the fact that the Government's Bantu education policy involved a new
approach and aimed at a neur ideal, viz., that of building up a Bantu
l IV,p. 362.
Applicants' reference to III, 527 is brief and incomplete. As regards the
deveIopment and aims of Respondent's policy of separate development. vide II,
PP. 457-483.
IV,ep.365.itIe to the section.
U.ofS.A.. Parl. Dcb., Housc Assernbly. Val. 83 (195C.ols. 3575-3590-
Ibid. Senaie, Vol. II (1954)~Col2595-2622.
Other statements referred to by Applicants which deal with the Act and Bantu
education policy are by the International Commission of Juri(IV, pp. 364-3651
and Lord Hailey (ibid.p.366). There isalsa reference to the Eiselen Commission
(videIII, p.364)whose report and recommendations preceded the passing of the
-4ct.
' Vide para. 4supra.
U. of S.A.. Parl. Dcb., Senate, Vol. II (rg54), 2599. The transformation
referredto inthis quotation, and how it would beeffected, isreferredto in para. 9.
infra. .38 SOUTH WEST AFRICA
community l.He indicated that Bantu education was part of a general
plan for the development and upliftment of the Bantu, and stated that
Bantu leaders and Bantu schools had an important role to fil1in the
progress of the cornmunity. The approach to the task of community
development, he said,
". ..is governed by the idea that the development of a community
can actually be encouraged from outside but can only take place
from within, thatit is a process of growth which in the main always
rests upon inherent growing power. That means that there can be
no mention of progress unless the bearers of the progress are found
within the community itself =."
The role of the school was referred to by him in the following terms:
"The influence of the school can and should be two-fold. There is
firstly the moulding of the individual child according to aptitude
and talent, and secondly there is the moulding of the under-de-
veloped community by means of the school. On the one hand by the
ploughing back of the good products to fertilize the community,
a long tenn benefit, therefore, and on the other hand, a benefit
which is immediately obtained, or can be obtained by making the
parents and the Bantu authorities school-conscious and schoob
responsible and vice versa by also making the teacher school-
conscious and responsible to the community 3."
Dr. Verwoerd also stated that the idea that there Couldbe Bantu comrnu-
nity development, and civilization, without disowning everything that
was Bantu, was to most of the Bantu anovel one. He said in this regard:
"They (the Bantu) thought that there were only two alternatives,
narnely,to shake offeverything that was Bantu and to assimilate
as much as possible of the western civilization and of the EngIish
language as they were able, or to remain Bantu and uncivilized.
That you may remain a Bantu, that your Bantu language can
become a medium to civilization, and that you and your whole
community togethcr with you in this manner can achieve far quicker
a higher spiritual, social and economic level of living, isfor them a
brand new and almost unbelievable thought 4."
6. The Eiselen Commission, it may be pointed out in this connection,
advocated a system of education which would, apart from its importance
to the individuaI, play a vital role in the general development of the
Bantu. The Commission stated in its report:
"It is evident, therefore, that Bantu development and Bantu
education must be largely synonymous terms. Education is more
than a matter of schooling; indeed, in the education of a society
to make a trernendous cultural leap such as the South African
Bantu are called upon to make, the schooling of children, though of
the utmost importance, must be regarded as only a part of a larger
process. School education, if it is to be CO-ordinated and in har-
mony with social development, must be seen as one of the many
= Ibid., COI4528.Dcb., Senate,Vol. II(1955)~Col. 4531.
Ibid., Coi4529.
Ibid., Col4530. SOUTH WEST AFRICA
veloprnent as something of its own and-in this way guarantees
the continuity thereof l ".
(d) Because the sdiools did not form part of the community service,
"... education was not built up on comrnunity requirernents
and in the first place was not directed towards the promotion
of community interests. The attempts of the provincial Depart-
ments of Education to direct itin that direction u-ere only
partly succesdul 2."
In elaborating the point made in (d) above, Dr. Verwoerd said that
Native education under the then existing system showed poor results,
firstly, because cun-icula were unsatisfactory, being too European in
character, and, secondly, because the schools had little holdng power,
He stated:
"In the niain, education is provided which aims at getting pupils
through examinations which up to Standard V and up to Junior
Certificate and at the Senior Certificate standard is practically
identical with European schools. The result isthe weak grip of the
school and the unsatisfactory achievements of the great majority
of pupils. Nearly half the pupils are in the sub-standards, ten per
cent reach Standard II, 34 per cent reach Standard VI, only a half
per cent reach Junior Certificate and a very few Matriculation. In
evaluating these figures, it must further be borne in mind that the
majority who pass just pass these examinations 2."
Poor results, according toDr. Verwoerd, were obtained also'because of
wrong teaching methods. He said that many teachers who had been
taught in English liad an "irresistibIe desire" 3,perhaps because of their
inability "to diffcrentiateideas from the related terminology" 3,to convey
knowledge to pupils in the same words in which such knowledge had been
imparted to them. The result was that-
". .. the Bantu pupil could not . . . receive a thorough grasp of
reading matter in the natural way through his mother tongue . . ,
As was to be expected, the progress of the pupils was seriously
hampered and those who reached the goal, mostly did so on the
basis of superficial knowledge supplemented by a11enviable ability
to rernember terms and definitions. They could couple richness
U. ofS.A.,Pari. Deb., op.cil.Cols.2597-2598. The word inbrackets is wrongly
printed as Basuto in Hansard. In regarto some of the points made in paragraphs
(a)-[c) above, reference rnabe made top. 129 (para. 752) of U.G.53-1951 which
reads as fo1lou.s:
"Your Commission considers that the four most important criticisrns of the
present systems are:
(e) Bantu education is not an integral part of a planof socioeconomic
development;
(b) Bantu education in itself has no organic u;it is split into a bewildering
number of diflerent agencies and is not planned;
(6) Bantu education is conducted without the active participation of the
Bantu as a people. either locaily or on a wider basis;
(d) Bantu education is financsd insuch s way that it achievesa minimum
of educational effect on the Bantu community and planning is made
virtually impossible."
Ibid.,Col.2598.
Ibid.. Col2610. REJOIKRER OF SOUTH AFRICA 4I
of vocabulary with a lack of knowledge and education in the true
sense "
8. Education provided in the aforementioned forrn, Dr. Verwoerd
stated, "must stand isolaled from the life of the Uantu society" and did
not uplift the community. It served, at most, to create a small class of
educated or semi-educated persons who considered themselves elevated
above their own people and who sought to enter the ranks of the Euro-
peans, only to become dissatisfied and frustrated when they found that
the Europeans were not prepared to admit them to their society. In this
regard he elaborated as foiiows:
"It prepares them not for life within the community which would
gradudiy be uplifted by it, but for a life outside the community and
for situations which in fact do not exist. In other words the com-
munity has not benefited from this to such an extent that because
of the general progress of its sons and daughters who have won
prett y examination certificates it could absorb them in a suitable
manner. A considerable number of those who were trained in this
way were taken up again in the education machine which created
a cycle of its own and of the evils in isolation of the Bantu corn-
munity. In this way Native education served to create a class of
educated and semi-educated persons without corresponding national
development. This is the class which has learned that it is above
its own people and feels that its spiritual, economic and political
home is amoiig the civilized community of South Africa, namely
the Europcans, and feels frustrated that their wishes have not been
cornplied with 3."
The same point was also made in other parts of Dr. Venvoerd's speech.
After stating that "segregation" had been "accepted as the country's
policy from thc beginning" ', he said i
"The curriculum (to a certain extent) and the teaching methods,
by ignoring the segregation [or] apartheid policy, could not offer
preparation for service within the Bantu comrnunity. By simply
blindly producing pupils who were trained in Eriropean ideas the
idle hope was created that they could occupy positions inthe Euro-
pean community in spite of the country's poficy which has been
mentioned. This is tvhat ismeant by the unhealthy creation of
white-colIar ideals and the creation ofwide-spread frustration arnong
the so-caIled educated Natives 5."
And also:
"The Bantu must be guided to serve his own comrnunity in aU
respects. There is no place for him in the European community
above the Ievel of certain formsof labour. Within his own comrnunity
l U. ofS.A.,Parl. Deb.op. citCol.2610.In R.P. No.22/1963 ,t is stated La. that
"every examiner and Tnspector of Bantu Educationcould confirm the view that-
"[wlhere the Bantu child is . .confronted with strange facts in a strange
language it ishardly surprising that downright memorisation remained the
only way out". (Sec.E. p. 18 (para. 7 (d).)
* U. ofS.A.. Parl. Deb., Senate. VoXI (1g54) C,ol26~0.
Ibid.C,ols.2610-261I.
* Ibid.,Col.2597.
Ibid., Cols2598-2599.The word in brackets is wrongly printed as "of" in the
otücial text.42 SOUTH WEST AFRICA
however all doors are open. For that reason it is of no avail for
hun to receive a training which has as its aim absorption in the
European community while he cannot and will not be absorbed
there. Up tiii now he has been subjected to a school system which
drew hirn away frorn his own community and practically misled him
by showing him the green pastures of the European but still did
not allow hirn to graze there l."
Dr. Verwoerd had made the sarne point in his aforementioned 1953
speech in Parliament. Hestated that in the past education had not only
fded to strengthen Bantu communal life, but had, on the contrary,
actually undermined cornmunity Lifeanddevelopment; that it had di-
vorced individu& £romtbeircomrnunities, and made them feel that they
wereelevated above their own people 2.
Very much the same view was expreççed bythe Eiselen Commissionin
the foilowing terms:
"The content of education and the methods employed have had
harmful effects on the community in certain respects. The parents
are frequently estranged from the school. In many respects the
schools, especiaiiy secondary and high schools, have joined in
creating a modem and extremely undesirable phenornenon, viz.
that group of people who break away too rapidly from the views
and habits of their own people and sometimes act against their own
people. Such a stray minority is readily formed where two cultures
are in close contact. The individuai lives in the midst of his own
community, but is not of the community; he is an outcast among
his own people and can fbd no anchorage with the people of the
other culture. He does not contribute to building up his own people
and is of no significance in the other culture3. '
g. After he had deait with the general aims of the Bantu Education
Act as outlined above, Dr. Verwoerd referred to methods to be employed
in order to give effect to the reforms conternplated. He mentioned four
measures, viz.,
(a) "... the control of the education system is taken out of the hands
of the provinces and placed in the hands of the Department of
Native AfEairsso that a uniform education policy in accordance
with the broad poiicy of the country can be introduced so that
education csn be CO-ordinatedwith other services and so that the
CO-operation of the Bantu can be organized ";
(b) "... the local controi of the schools under the supervision of the
State is entrusted to Bantu bodies which must now learn to perform
a service for the community as a whole ... The mission school is
replaced by the community school4 ";
(c) "... the control of schoois xvhich do not serve local communities
but whole areas, that is, institutions for advanced education and
especiaily for the training of teachers, must be controlled by the
Department itself 4 ";
1 U. of S.A., Parl. Dcb.. ScnaVol. II (rg54)C,ols. 2618-2619.
U. ofS.A., Psrl. Dcb.. HousojAssenebly,Vol.83 (r953}, Col. 3577.
U.G. 53-1951, p. 128(para. 743).
4 W. ofS.A., Parl. Dtb., SerraVol.II (rg54), Col2599. REJOINDER OF SOUTH AFRICA 43
(dJ "... it willbe arrangedthat the Bantuthemselves will carry an in-
creasing amount of the cost of expanding their education services.
The principle of a Native DeveIopment Account is re-established in
practice by the creation of a Bantu Education Account l".
IO. Descnbing existing Native schoolçgenerally as "schoolçwithin the
Bantu society, but not of the society" 2,Dr, Verwoerdstated in his afore-
mentioned speech of 1954 that it was the intention "to transform them
into real Bantu community schools" 2,To effect suc11a transformation,
he said, Bantu education would have to comply with the following
requirements :
"Firstly, (a) every Bantu taxpayer must have an equal right for
his children to the fundamental education facilities which can be
provided from the available funds. This is education in Sub (a)
and (b) and probably up to Standard II, therefore in reading
writing and arithmetic throu h mother tongue education, as weIlas
knowledge of English and A !rikaans and the cardinal principles of
the Christian religion. (b) The money which iscontributed by the
European and the Bantu taxpayer must be used to the greatest
possible advantage for the greatest possible number.
Secoladly, (a) the Bantu pupil must get knowledge, training and
an attitude in school which will be useful and advantageous to him
and at the same timc benefit his community. (b) *Thesubject matter
must be put to him in such a way that he can understand it easily
andmakeit his ownso that he can benefit and serve his community
in a natural way. (c) The school education must also equip him
to meet the demands which the economic life in South Africa will
make on him.
Thirdly, the Bantu teacher must be utilized as an active factor
in this process of deveiopment of the Bantu community to serve his
community and build it up andlearn not to feelabove hiscommunity
so that he wants to becomeintegrated into the life of the European
community and becornes frustrated and rebellious when this does
not happen and he tries to make his comrnunity dissatisfied because
of such misdirected and &en ambitions 3."
II. In deaIing with the practical steps which would be taken to carry
out the aforesaid requirements, Dr. Verwoerdmade the followingpoints:
(a) The primary school curriculum would consist of two complete
courses, viz., the lower or fundamental course, and the higher
course +.
Dr. Verwoerd said in this regard:
"Education in the lowest classes is seriously affected by what
is described as the Standard VI mentality of the teachers.
This means that the education is conducted asif every pupil
~villfinish the whole primary course. In practice, as a result,
just the opposite has happened. As the figures sho%va ,pproxi-
mately 34 per cent. of the pupils fmish the primary course. In
l W. ofS.A., Part. Dcb., cit.Cols.2599-2600.
Ibid., Co2606.
Ibid.Cols2.606-2607(.rtalics added.)
4 Ibid.C,ol. 2608.Vide alsU.G.53-rg51,pp. 121-122 (paras686and688). SOUTH WEST AFRICA
other words, the hold of the schoolson the pupiIs leaves much
to be deçired l."
(b) Curricula in the fundamental stage would not go further than to
teach pupils-
"... to read, write and do arithmetic through the rnother
tongue rnedium, and begin to learn Afrikaans and English
with religious education and singing 2".
Dr. Verwoerd pointed out in this regard that the requirement of
mother-tongue instruction up till at least Standard 11 was not a
new one, but that it had iargely been ignored in the pst 3,and,
also, that the syllabuses, for the lowest classes would not difier
fundamentally from those then prescribed in the various provinces,
but not always used in practice +.
(c) After stûting that the curriculum of the schools envisaged a system
of education which, starting with the circumstances of the com-
munity, airned at meeting the requirements of the community
and which would be "carried by the mother tongue of the pupils" *,
Dr. Verwoerd said :
"The economic structure of [South Africa] of course results in
the Natives in large numbers having to earn their living in the
service of Europeans. For that reason it is essential that Bantu
students should receive instruction in both official languages
from the beginning so that they can already in the lower
primary school develop an ability to speak and understand
them '."
Dr. Verwoerd explained that his remarks, as summarized in this para-
graph, were concerned largely with "the basic lower primarqr school
course" which would soon be "introduced everywhere" 5. Hestated that
urgent attention would also be given to certain changes in the "higher
grades'! of education 6,and indicated that there would be an expansion
of school faciljties for Bantu children. He pointed out in this regard
that expenditure on Bantu education, incIuding school feeding, during
the then current year amounted to £8,5oo,ooo,and thnt expenditure per
capitaof the population was higher than in the case of "any othei Native
community in Africa" 7.
12. Having in the preceding paragraphs given an outline of the general
aimsof Respondent's Bantu education policy in South Africa, Respon-
dent now proceeds to deal in this and the succeeding paragraphs with
specific allegations made by Applicants.
In discussing Respondent's general education policy Applicants make
the following allegation: "Education in South Africa and in South West
Ahca is geared to the objectives of Respondent's general policy of
apartheid "
' U.of S.A.. Purl. Dsb.. Senate, Vol. II (19.ols.2608-z609.
Ibid., Col. 2609videalsoCol.261 1,where handicraft is also rnentioned.
.Ibid., Col. 261.2610.
5 Ibid., Cols2611-2612.
Ibid. Col.2612.
' Ibid.,Col. 2Go7.
IV, p.364. REJOINDEROF SOUTH AFRICA 45
This statement is true asfa as it goes. Respondent has aiready stated
that its educational policy conforms to its general policy of separate
development in that separate educational facilities are,as far as is practi-
cabie, provided for the various population groups. In this sense Res-
pondent's educational policy relative to the Native population, like its
policy relative to aiithe groups, forms an integral part of state policy.
It has already been explailied that Respondent's policy of separate
development is based on the fact that there are material differences
between the various population groups, and that the policy is directed
at the development of the said groups into independent, self-respecting
communities. 1t is therefore misleading to refer only to Respondent 's
" 'Native' educatiola#olicy" as having "corne to form an integral part
of state policy".
13. In other respects, too, Applicants make degations, or refer to
statements made by others, whch misrepresent Respondent 's policy
and intentions. Thus, they state :
"The asserted objcctives of Respondent's policy of apartheid are
that the various 'non-European' groups be separated in every
possible way from the 'European' group and from each other, that
such 'non-European' groups 'develop' in their own manner and at
their own rate to form their own institutions and communities, and
that such groups eventuslly 'have self-government. .. ''"
Respondent points out that in the above passage Applicants have used
two expressions extracted from the Counter-Nemorial, viz., "develop"
and "seIf-government", which they have mingled with assertions of their
own in order to render a distorted version of the objectives of Respon-
dent's policy. Znthis manner they create the impression that Respondent
en/orcesseparation on the non-European groups in "every possible way".
This is, of course,not the case. As Respondent has explained, it recogntres
the differencesbetween the various population groups and their desires to
be treated as separate communities, to which desires Respondent gives
effect as far as is practicable. There is accordingly no question of the
groups being kept apart in order that they may "form their own ...
communities". Their existence as separate communities has at al1times
been a fact. Applicants' statement in question, by the use of the words
" 'develop' intheir own mariner and at their own rate", also creates the
impression that there is neglect on the part of Respondent in that it
allegedly leaves the non-European groups to deveIop on their own
without encouragement, advice or assistance from Respondent. There 1s
no truth in such a suggestion. Throughout the Counter-Mernorial proof
is given of the efforts made by Respondent to promote the well-being,
progress and development of al1the inhabitants of the Territory. Tndeed,
in the very section of the Counter-Mernorial from which Applicants have
extracted the words "have self-government" Respondent explained,
with reference to developments in South Africa, that-
"[ijn the process of advancement towards this gml. m5zsures hive
been and are conçtantly being taken to develop the Bzntu areas, .
and it is Respondent's belief that the Bantu thern;elvej shalild play
an active part in this development. In this pr0cej.çof development
Respondent, through its Departments of Bantu Administration and
l IV, p. 364. (Italics sdded.)46 SOUTH WEST AFRICA
- Bantu Education, employs and trains Bantu who can contribute
to the development of their areas and to the advancement of their
own people l."
The same approach isfollowedby Respondent in promoting the progres
ofthe Nativegroups in South West Afnca in allspheresof administration,
including education. In testimony thereof Respondent need only refer
to the findings of the Odendaal Commission with regard to present
conditions in the Territory, and to Respondent's acceptance ofthe recorn-
mendations of the Commission, which recomrnendations are aimed at
further and accelerated progress of the non-European groups in the
Territory, especially the Natives.
14. Applicants rely on a statement of the International Commissionof
Jurists to the effect that the Bantu Education Act and subsequent Acts
pertaining to education-
"... are necessary to complement the African reserve, group areas
and pas law legislation which aim at separate and restricted
development of the non-white only to the labour level required by
the Europeanç 2".
It is hardly necessary for Respondent to Saythat this contention of the
Commission is without substance. None of the legislative mesures
referred to by the Commission isaimed at "restricted development of the
non-white", or has that effect. The faciiities provided, and opportunities
created, for the educationai advancement of the non-\\%te groups, and
the level of advancement already attained by many of thern, refute
the suggestion of the Commission. Indeed, as has been demonstrated
above 3,the very object of the Bantu Education Act isto build up sound,
self-respecting Bantu communities in which there will be no limit to the
level to whick members of such communities would be able to aspire in
both the educational and economicspheres.
15. Applicants Say :
"The basic assumption of apartheid, which therefore constitutes a
fortiori a basic premise of 'Native' education policy, is that there is
an unbridgeable gulf between the population 'groups' 2."
In rnaking thisstatement, Applicants refer to three sub-paragraphs in
Respondent's Coiinter-Memorial *which dealt with certain aspects of
policy relevant to a particular issue raised in Applicants' hlemorials 5.
Elsewhere in the Counter-Memorial Respondent dealt in detail with the
circumstances and considerations goveming its system of separate
education forthe different population groups ofSouth West Africa.These
expositions, when read asa whole and in their context, do not in the
lest support the "unbndgeable gulf" contention.
Applicants proceed to Say that the Commissionon Native Education
(the Eiselen Commission) whose recommendations resulted in the
Bantu Education Act, found in its report that:
"The Bantu child comes to school with a basic physical and
111 ,.527.
IV,p. 365.
Videparas. 5-6,supra.
IbPd., footnot2,beinga referencto III, p. 527 (paras. (b)-(d)).
6 Vide III,p. 353-37a 2nd 376-382. REJOlNDER OF SOUTH AFRICA 47
psychologicalendowment which differs,sofarasyour Commissioners
have been able to determine from evidence set before them, so
slightly, if at all, from that of the European child that no special
provision has to be made in educational theory or basic aims l."
AppLicantsJsuggestion seems to be that, in the light of this view of the
commission, there is no ground for differentiation in the caseof education
for children of the Native and European groups. Applicants, however,
neglect to sa that, whilst the Commission thought that no special
provision hadrto be made in "educational theory or basic aims". it
nevertheless thought that there were various factors which affected the
content and methodsof the Bantu child's early instruction. The Comrnis-
sion stated-to cite the rest of the paragraph in the report from which
Applicants quote:
"The now universaily accepted principle of Ieading the child in
his education from the known and familiar to the unknown and the
unfarniliar has to be applied equally in the case of the Bantu child
as with children of any other socialgroup. But educational practice
must recognize that it has to deal with a Bantu child, i.e., a child
trained and conditioned in Rantu culture, endowedwith a knowledge
ofa Bantu language and imbued ivith values, interests and behaviour
patterns learned at the knee of a Bantu mother. These facts must
dictate to a very large extent the content and methods of his early
education =."
Dr. Verwoerd dealt with the same matter in his 1953 speech in Parlia-
ment when he said, intea rlia:
"... your teaching should begin where alieducation should begin,
namely with the known facts or common knowledge. The common
knowledge of the white child is different from that of the Bantu
child. Everybody who has had anything to do with intelligence
tests knows that when you try to apply an intelligence test based
on the common knowledge of children of a certain community, the
test cm be a complete failure and give entirely wrong re-lts ln
respect of children not falling within the same group of common
knowledge. If the contents of that intelligence test is based on the
knowledge of an urban child, you cannot appIy that same test to
the rural child. He possessesa different fund of common knowledge.
The same applies to education. It istherefore also correct to Say
that Bantu education must of necessity be different, because it has
as its starting point other sources and other kinds of knowledge.
One should therefore not confuse fundamental principles of educa-
tion which may be similar for aii people, with the practical form
~vhichpositively differsfor different people'."
16. In illustration of what Applicants describe as the "intention of
Respondent's 'Native' education policy" or "basic policy", Applicants
cite short extracts from the speeches by Dr. Verwoerd in the South
African Parliament which have been refe.red to above
IV,p. 365,footnote 5.
2 U.G. 53-1951, p. rjr(para. 773).
Videpara. 4.supra.
Vide paras4.u5 and7-11,srtpra.senbly,Vol. 83 (1953)C.ol3585.48 SOUTH WEST AFRICA
Applicants use these extracts and comment thereon out of context in
an attempt to eçtablish a charge that Respondent's Native education
policy is inçpired by improper motives towards theUantu of South Africa
and, by necessary implication, also towards the Native inhabitants of
South West Africa.
Respondent submits that if due regard is had to the full text of the
speeches from which Applicants have extracted the passages quoted by
them, the said speeches do not establish what Applicants seek to prove.
Indeed, a proper reading of these speeches will show that Respondent's
policy ofseparate development, andits educational policy aç implemented
in the Bantu Education Act, do not aim at unfair discrimination against
any population group, Native, Coloured or European, but are directed
to the very opposite end, namely to bring about a situation in which,
by a system of separate development, unlimited opportunities in the
educational and in a11other spheres will be possible for al1sections of the
community. In this way Respondent aims at seeking a solution to the
problem that besets countries like South Africa and bouth West Africa
which are populated by heterogeneous communities standing at different
levels of developrnent, posseçsing different languages, cultures and cus-
toms, and desiring to prcserve their separate identities. In these circum-
stances Respondent regards it as in the best interests of the Native groups
that education should be provided for them in separate institutions where
due consideration can be given to their specific culture, outlook and as-
pirations.
It will be observed that although Applicants speak of the "intention"
of Respondent's educational policy, they make no reference to its primary
aims of strengthening and building up healthy, self-respecting and
self-governing Bantu communities. For Applicants the "intention" lies
in the fact that the policyoes not contemplate an attempt at the creation
of one single and integrated society in which al1individuals have identical
rights. This they regard as baçically wrong, and it iç for this very reason
that they seek to establish irnproper motives on Respondent's part. As
will be-shown in the next succeeding paragraphs, their attempts in this
regard are singularly without succeçs.
17. Referring to the aforementioned speech made by Dr. Verwoerd
on 7 June 1954 n which he stated, interakia,that "[tlhere is no place for
the [Native] in the European community above the level of certain foms
of labour. Within his own community however a11doors are open to
him", Applicants say: "Any concept of 'equality' of the 'Native' andthe
'European' is, therefore, antithetical to this basic prernise l."
Since Respondent's policy does not aim at creating inequalities as
between the European and Native population groups, but at providing
separate facilities which, inasmuch as they are intended to serve the
different interests of the various groirps, are not identical al1respects,
but arenevertheless in principle of the same nature, Applicants' cornplaint
can arise solelyfrom thefact that thereisa separation between the groups.
Applicants are, however, not content to rest their charge on this basis
only, but proceed with an attempt to establish malafideson Respondent's
part. Thus they say, with reference to another statement made by Dr.
Verwoerd, that-
"Respondent apparently hopes to avoid this 'frustration' [ofthe
Natives], in part,by creating a utilitarian scheme of education for REJOIKDER OF SOUM AFRiCA 49
the 'Natives' in the Territory which will train them to continue
serving the 'White' groupwithout 'frustration', on the one hand, and
to tend to their own problems in their own 'areas' by themselves, on
the other l."
In support of this statement they cite another passage from a speech of
Dr. Verwoerd in which he said, inter alia:
"Uptil now [the Native] has been subjected to a school system
which drew hirn away from hisown comrnuiiity, and practicaily
misled hirn by showing hirn thegreenpastures of theEuropean butstill
did not nllow him to graze therel."
From a proper reading of Dr. Venvoerd's speech it wiU be seen that it
was precisely because of the limitations which prevented the Natives
from being absorbed inand progressing withiri the European community,
that Respondent's policy aimed at providing, and educating them for,
opportunities of advancement within their own comrnunities.
Applicants advance nothing which can serve to support their con-
tention that Respondent's policy is directed at training the Natives to
"continue scrving the 'White' group". It is purely a figment of their
imagination. Indeed, a total lack of evidence to support their allegation
leads them to omit from another passage quoted by them from a speech of
Dr. Verwoerd, a vital part which contradicts the very charge made by
them. There they quote Dr. Venvoerd as having said that Native edu-
cation is planned so that-
"[it] will be suitable for those who will becorne the industrial
workers in the country and also that education can be suitable for
those who have to stand on their own feet in the reserves and who
will have to conserve their soi1 and develop their agricultural
activities. . 2".
In this speech Dr. Verwoerd stated that the control of Native education
would be transferrcd from the four provinces to a single department of
State so as to ensure, inter alia, uniform education policy, but that the
principle of uniformity would not preclude efficient decentralization or
diversified education to meet various circumstances. Even in a uniform
policy, he said, eclucation could be made suitable for various classes of
men of the future: not only industrial and agricultural workers, but also
farmers in the reserves, and professional men. \Vhat Applicants con-
veniently omitted from the passage quoted by them are the following
words, which concluded the passage :
". ..that education can also take into account the requirements of
those who will becorne the rural and agricultural workers, and itcan
alsokeep in mind thosewho woulddevel@ to the higherprofessions
mealzs of which they will be able to servelheir own conzmernity '".
(Italics added.)
Respondent submits that the conclusion which Applicants seek to draw
from their incornpletc quotation of part of Dr. Verwoerd's speech does
not merit further consideration.
18. Another part of a speech of Dr. Verwoerd quoted by Applicants,
which, if read out of context, createsawrong impression, is the followrng:
l IV.p.366.
U. ofS.A.. Parl. Dtb., HotofcAsssmbly, Vol. 83 (1953C.ol3580.5O SOUTH WEST AFRICA
"1 just want to rernind hon. members that if the Native in South
Africa to-day in any kind of school in existence is being taught to
ex#ectthathe m.1 ive hisad~ltlifeundera policy ofquai riglats,heis
~aking B bigmistake l."
This passa eis described by Applicants as the "most conciseillumination
of Respon d ent's basic policy"l.
This singlepassage, read out of context, doesnot illuminate, but rather
creates a wrong impressionof Respondent's policy. The rernark made by
Dr. Verwoerdrelated to the aspect of the poiicyof separate development
which envisages the most appropriate and beneficial advancement po-
tential of the Native as lying not in attempts at creating an integrated
society, but in the development and progreçs of a heterogeneous society
in which, while there is denied to the Native equal rights in European
areas, there is reserved to hm rights of priority in his own areas. Dr,
Verwoerd'sremark applies mutatis mutandisto the position of the Euro-
pean in the Native areas. In its proper perspective, therefore, this state-
ment also doesnot in any way serve to establish improper motives on the
part of Respondent.
rg. Applicants also profess tohd support for their abovementioned
charge regarding the intention of Native education in a paragraph in the
report of the Eiseien Commission.Applicants Say:
"The Eiselen Commission, in discussing the plan with regard to
language instruction, expressed the view that instruction should
proceed so that 'the Bantu child will be able to find his way in
European communities; to follow oral or written instructions; altd to
carry on a simple conversatioltwitk Europeans abortt his work altd
othersubjectsofcomwtonilderest' '."
Applicants seern to suggest that the EiseIen Commission held the
view-and, &O, that Respondentshares that view-that Native children
need be taught no more English or Afrikaans at school than wodd be
sufficientto makethem capable ofunderstanding instructions given them
as employeesof European masters.
The Eiselen Commission,however, did not, to the knowledge of Re-
spondent, either Say, or intend, anything of the kind. The Commission,
well aware of the fact that many Native pupils leave school during the
first four-or even two-years of schooling2, and, alço, aware, of the
contradictory views held by educationists asto the wisdom ofteaching a
foreign language to children in primary schools felt that in South
Africa economic considerations made it necessary in the interests of the
Native children to teach them EngLishandlor Afnkaans at an early stage.
The Commissionstated in this regard:
"Your Commission wishes to emphasize, however. that economic
considerations make it absolutely necessary that the Bantu child
should obtain a knowledgeofoneorboth ofthe officia1languageswe
he is stiii at school, The Bantu population is indeed so alive to ths
that they consider it the main object of the child's schooling =."
l IV,p. 367.(Italics added by Applicants.)
U.G. 53-1951, p. 134 (para. 796)~
1.e.a language other than the child's mother tongue.
U.G. 53-1951, p. 146 (para922).
' Ibid. (para923). REJOINDER OF SOUTH AFRlCA 5I
From the paragraphof the Commission'sreport referred to by Applicants,
it appears clearly that the Commission dealt only with the minimum of
English or Afrikaans which should be taught to those pupils who do not
proceed beyond the lower primary standards. It doesnot refer tolanguage
instruction above the level of the lower prirnary course. The said para-
graph reads as foliowç:
"Wealso wish to point out that witnesses, particuIarly the Bântu,
laid great stress on the need to teach both ohcial la~lguages.We are
therefore ofthe opinion that provisionshould be made forinstruction
in both these languages even in the lower primary school, and this
should be done in such a way that the Bantu child wiii be able to
find his way in European comrnunities; to foliow oral or written
instructions; and to carry on a simple conversation with Europeans
about his work and other subjects of comrnon interestl."
Dr. Verwoerd, in one of the speeches from which Applicants have
extracted certain passages, alsoreferred to the fact that alow percentage
of Native pupils completed the lower primary standards =,and that the
economic structure of South Africa was such that many Natives earn
their living in the service of Europeans. "For that reason", he said,
"... it is essential that Rantu students should receive instruction in
both officiailanguages from the beginning so that they can already
in the Iower primary school develop an ability to speak and under-
stand them 3".
20. Applicants also cite excerpts from the work of Lord Hailey, An
Ajrican Sccrvey,in which he states that the-
"... advocates of the principle of separatism clearly hold that the
gulf between the European and the Bantu is sodeep that it would be
unprofitable, even if it were not politically inadvisable, to attempt to
bridge it4".
Another passage cited by Applicants from this work is to the effect that
the passage of tlie Bantu Education Act-
"... amounted to a decision that education on European lineçwould
be no good to an African in the sphere whidi he was now destined to
fi& and it might even be dangerous, as encouraging him to trespass
into that occupied by the European5".
Save in one respect Respondent is not in disagreernent with the light
in which Lord Hailey views the objects of the Act. The respect in which
there is disagreernent is the view which he expresses as to the "sphere
which [the Native] was now destined to fd". As will be clear from the
statementç of policy referred to above 6, the object of the Actwas not to
divert the Native from a sphere which he was formerly either allowed or
"destined" to fiIl intoa new sphere. The legisiature recognized the
limitations which in fact existed for the Native within the areas of the
European community and for that very reason sought to create oppr-
tunities for him within his own cornrnunity-hence the aim of adapting
U.G. 53-1951,p. 146(para. 924).
U. ofS.A.,Parl. Deb.Senate,Vol. II (rg54C,ols2598 and 2609.
IV,p.365.l. 2611.
Ibid., p. 366.
Vide paras.5elsep.,stspra.52 SOUTH JVEST AFRICA
the educational system to conform with the broader objects of the policy
of separate development, in which the Native groups are intended to
develop as separate and self-reçpecting communities to ultimate self-
realization.
21. Finally Applicants refer to a statement allegedly made by Re-
spondent's Minister of Bantu Education in the course of a speech made
on zz August 1959 l,and they contrast this statement with a passage in
Book VI1 of Respondent 'sCounter-Mernorial 2. The aliegation made by
Applicants is that tlie Minister, in contrast with the "benevolent form
of expression" * used in the Counter-hlemorial, made a "more forthright
admission" in the words ascribed to him. Yreciselywhat the hlinister is
alleged to have admitted is not stated by Applicants. The suggestion
seems to be, judging by the words which Applicants italicize 4 and by
what they dege in the Reply l,that the hiinister made it plain thatit has
been, and is, Respondent's intention "to ensiire the paramountcy of the
white man inSouth Africa", and not to allomthe Bantu to hll any but the
lowliest occupations.
The factistliat the Ministerdid not say, or intend to convey, any such
thing.
Respondent wishes to point outthe followingin regard tothe statement
attributed to the hlinister of Bantu Education and the speech made by
hirn on the aforementioned date:
(a) The staternent quoted by Applicants is,on the face of it, a çummary
of what is supposed to have been said.
(b) The speech in question was not, as is alleged by Applicants, broad-
cast by the South African Broadcasting Corporation, either at the
tirne alleged or at all; nor did the Corporationfurnish the text of the
statement to Dr. Xuma, who is alleged to have quoted it in a paper
read by him 5.
(c) The statement quoted by Applicants is an incomplete and diçtorted
sumrnary ofwhat the Rlinisteractuaiiy said. The hlinister did notsay
that every law conceming the Natives wliich had been passed by the
Government had been passed with the object of protecting the
Whiteman. Such astatement would have been ndiculous, and untrue.
Nor did the Minister Saythat every such law was intended-or that
l IV, p. 367.
2 III, 1)529 (para.20 (h)). Respondent in this paragraph made the point that
its policy of separate development involves advantagcs for the educated and more
advanced members of the Bantu groups, and that because this policy isin a stage of
transition from an earlier position of "Mliite guardianship and leadership in every
sphere of a partially integratceconomy to equality of opportunity for memberç of
the non-White groups in the form of leadership in largely separated, thoughally
interdependent cconornies of theiomn groups", Respondent has "found it best, as
a matter of practical policyto respect the unwillingness of members of the White
goup to serve in positions of subservience to members of the Bantu groups, but at
the same time to create compensatory opportunitics for higher employnent of
members of the 1st-mentioned groups through acceleration, as far as practicable,
of the development of their own homelands and economies".
3 As will be indicated below, Respondent denies that the Minister used the words
ascribed to him.
Viz., "to ensure the paramountcy of the white man in South Africa".
IV,p. 367. footnote 3. REJOIXDER OF SOUTH AFRICA 53
the Govemment intended-to ensure the paramountcy of the White
man in South Africa. Such a statement, if madewithout qualification
lirniting it to the parts of South Africa intended to be "white",
would have been in conflict with what Respondent's Prime Rlinister
had stated only three months previously, viz. :
"1 Say that if it is within the power of the Bantu and if the
territories in which he naw lives can develop to fuii indepen-
dence, it will develop in that way l."
"Therefore to talk about partition and subdivision as being a
distasteful pattern is utterly nonsensical, because in terms of
both policies there wiil be Black areas, and in terms of the
policy of apartheid the IVhite man will at least control his own
area, whatever the difficulties might be and however hard it
might be. He at least haç the opportunity to save himself
which under the other circumstances of a multi-racially
controiled state he wili not have =."
(d):The Minister of Bantu Education made the point that peaceful and
friendly relations could best be ensured by having separate areas
for Whites and Bantu, and that the development of the Bantu in a
unitary state, or under a policy of partnership with the Whites,
heId greater dangers for the latter than the cleveloprnent of the
Bantu in their own areas. Political power, the Minister said, would
have to be given to the Bantu, but it would be given to them in their
own areas, and not in South Africa's existing Parliament.
(el The Minister also said that education would in future play an
important part iii relations between the FVhitesand the Bantu. For
that reason, and to prevent wrong developments, the Government
had decided to assume control of Native education. The &finister
then dealt with these aspects of Rantu education on substantialiy
the same lines (although much more briefly) as Dr. Verwoerd had
done in his speech in the Senate in 1954 3.He said, inted ria,that
the Bantu should be equipped to serve their own people; that
educated Bantu should strive to develop their own comrnunities;
and that education in the past had often wrongly led the Bantu to
believe that they could fil1jobs in the White economy when, in fact,
such jobs were not available to them.
In the premises it is clear that this speech of the Minister of Bantu
Education does not support Applicants' contention.
C. Categorization
22. Applicants' allcgations in this section of the Reply may be sum-
marized as follows:
(a) that Respondent's policy is one which has regard to "groups", and
considers individualç only as rnembers of groups ;
(6) that the "policy of differentiation . .. is rigidified by its ready
suitability for the developmcnt of the policy outlined" thereafter 4,
by which is apparently meant a policy of allegcd oppression of the
l Tbid., Col. 6223.cb.,House ofAssembly, Vol.IOI (1959)C .ol6221.
Vide paras. 5cl seqsupra.
' IV,p. 370.54 SOUTH WEST AFKICA
Natives; and that it "enables Respondent to adopt differentiated
policies of expenditure" l.
Respondent wiii deal with AppLicantç' specific allegations in the order
aforestated.
23. Applicants say that "[t]hroughout itç Counter-Memorial, ~eç-
pondent expresses its policy in terms of 'groups' " 2,and that a "rigid
tendency to categorize by group designation is the recurrent theme of the
metaphysics of a urtheid" 3.
As has been s gown in the Counter-Memorial, Kespondent's policy in
South West Africa is one of separate development of the various popula-
tion groups which constitute the total population of the Territory. The
reasons forthis policy have been dealt with before +,and it is not intended
to do so again. It will be sufficient to repeat that the population of the
Territory has never been a homogeneous one, but, on the contrary, is
composed of several distinct racial and cultural groups; that inregard
to education-
". ..it isRespondent's finn belief that it would be failing in its duty
under the Mandate if it were to abolish its present system ofseparate
schools for the respective groups and to substitute for it schools
which will be open to al1the groups. Not only would such a system
lead to dissatisfaction and group friction, but it would also resuIt
in tlie neglect of the needs of al1the groups and in irreparable harm
to the Territory as a whole 5",
and that it is Respondent's conviction that its policy of separate develop-
ment is best able to avoid or reduce to a minimum al1undesirable aspects
and manifestations of group reactions, çuch as unfair discrimination,
domination of one group by another, and the like 6.
Respondent belicves, in other u70rds, that it will be inadvisable to
attempt to establish an integrated, or single, society in which group con-
siderations will be absent, or count for nothing: a society, in other words,
which \vil1 knorv only "indiv-iduals", and not "groups", or "members
of groups".
The aforegoing does not mean, as Applicants altege, that Respondent
has regard to individualsonly as members of groups 3,or that Respondent
"does not atte~npt to provide for the 'particular needs' of individzcals
comprisingthe groups" 1.On the contracy, the separate development of
the groups will, it is Respondent's conviction, provide for the individual
members thereof the best possible opportunities for self-realization, what-
ever the Ievel such individuals may be capable of achieving. As has been
seen, thiç isoneof the most important objectives of the policy. Applicants
<,se their allegations on Respondent's use of words like "group",
groups", "members of groups", etc., in cases where, as will appear from
an analysis of thestatements referred to by them, liespondent dealt with
the differences between the various population groups, or with the reasons
underlying its policy for differentiating between the groups. It was, of
' IV, P. 370..
2 Ibid., pp. 367-368. Applicants' referetothe Counter-Mernorial arehowever,
inthe present content. limited to BooVI1 thereof.
3Ibid.p,. 368.
+ VideII, pp.404-488
111.p. 382.
Ibid., p528 REJOINDER OF SOUTH AFRICA 55
course, only natural that Respondent, in dealing with its policy in the
Counter-BIemorial, should frequently have used words like "groups",
"members" of groupç, "children" of groups, etc. On occasion it also used
the word "group", or "groups", to signify the individual members com-
posing a particular group or groups '.IVhen regard is had to the context
in which these words are uçed in the Counter-Mernorial, they cannot, by
themselves, justify allegations of the kind referred to above. Nor can it
be said that Respondent, in using such expressions in the context stated,
formulated its "concept of the role of the individual inhuman society" 2.
In the following paragraphç Respondent deals with the specific alie-
gationsmade by Applicants in this regard.
24. Applicants say that nowhere in the Counter-Rlemorial isthere "a
sign of an individual being considered other than as a member of a
group" 3,and they refer "eçpecially" to certain pages ofBook VI1of the
Counter-Riemorial where Rcspondent dealt briefly with social and econo-
mic conditions, past and present, in South Africa, and with certain basic
considerations which contribute towards the motivation of Kespondent's
policy of the separate development of the European and Bantu popu-
lation groups of the country 5. Respondent pointed out, inter dia, that
there "has, throughout South Africa's history, been social separation
between the White and Bantu groups; that the members of each group
prefer to associate with members of their own group; and that certain
kindç of close contact between members of the two groups, particulady
in the more intimate spheres, tend to create friction" 6, and stated its
conviction that a policy of separate development of the groups was,
both in South Africa and South West Africa, best able to avoid or reduce
to a minimum al1undeçirable aspects and manifestations of group reac-
tions '. Respondent, in other words, stressed that there had, as a fact,
always been separate societies in South Africa, and expressed the view
that attempts to create an integrated, or single, society \rrouIdcreate
cornpetition and conflict, to the detriment of al1 concerned. This, in
Respondent's submission, is no justification for saying that Respondent
bas regard to individuals only as members of groups.
In thiç same regard Applicants refer, in a footnote, to a bnef passage in
the report of the Odendaal Commissionreading as foliows:
"The moral and economic principles of a modern economic system
are different from those of traditional groups urhere the groupand
not the iatdivld~alisthe focal point
It isnot clear what point Applicants seek to makc inthiç regard, particu-
larly since the passage quoted seems to be contrasted with the pages
of the Counter-Mernorial mentioned in the same footnote. The intention
may be to convey that the Commission's ascription of certain "moral
l Vide passage quoted at IV,p. 370 ending with the italicizewords "highest
level they can attain".
3 Ibid.,p. 368.
Ibid., infootnote 3.
111,pp.527-530.
&id., P.527.
Ibid.. p. 529.
IV, p. 368,footnote3,refemng to R.P. No. 12/1964, p. 427 (para.1431).
Vide the "Cf." in footnote 3 at IV, p. 363.56 SOUTH WEST AFRICA
and economic principles" to traditional groups is an unwarranted "cate-
.gorization", or that there is no justification for saying that in the case of
traditional groups "the group and not the individual is the focal pointv-
or, perhaps, something else; Kespondent does not knoiv.Be this asit may,
it is Kespondent's submission that there is adequate authority for the
view expressed by the Commission.
The relevant paragraph in the Commission's report reads as follows:
"The moral and economic principles of amodern economic systern
are different from those oftraditionalgroups where the groufiand not
the individual is the focal point. The modern economic system and
the traditional system are therefore not comparable or readily
reconcilable. Their probIems are different,their human values and
motivations are difîerent. Consequently there has to be a differen-
tiated polic-, since-
'to assume, as is sometirnes done, that one may proceed from a
strictly economic analysis of the development problem to a
prescription of a program for development without careful
attention to the social-cultural environment within which this
program will have to be undertaken is to proceed in ignorance
towards almost certain disillusionment and possibly outright
disaster' l."(Footnoteomitted.)
This is followed by a paragraph lvhich begins as follou~s:
"Whilc in the case of the Whites the primary problem is one of
furthcr technological development, in the case of the traditional
non-\Vhite it is one of socio-cultural transformation providing
increasingly for the adoption and spontaneousapplication of modern
production methods and aims. Socio-cultural changes are inevitably
painfill and take place slowly . ..2"
The aforementioned views of the Commission are supported by other
authorities.
Thus, in a recent United Nations publication theconcept of community
in traditional African society is referred tas follows:
"Traditional Africa ischaracterized by a social organization in
which the individual lives, acts and bvorksas a rnember of the group
to which he belongs, whether this group be the family orthe village.
Al1 soci:il, moral and cconomic life in the traditional society is
permcated by this Community structure, wliich governs man's
reaction. 111his civil status,the methods of production, his rights as
a landowner, the sharing of consumer goods, the individual is
dependent iipon the other members of the community. ln exchange
for this subordination, however, he gains a solidarity which affords
him relative security. The efforts of the productive unit, confined
to the family or the village, are limited to providing its domestic
needs; the unit is enclosed within an economy of subsistence 3."
And \fTestermann wrote as follow of the prevalehce of the idea of com-
munity in African societies:
1 R.P. No. 1211964p,.427(para. 1431) The quotation is £rom Buchanan, N. S.
andEilis, H.S.,Appronches ioE~onomic Devebpment (1958). p. S6.
Ibid., p427 (para. 1432).
U.N. DOG.E/CN. 141171, Econumic Bzklbtin JovAlrica. Vol. IINo. 2 (June REJOINDER OF SOUTH AFRICA 57
"African society is characterized by the prevalence of the idea of
cornmunity. The individual recedes before the group. The ~vholeof
existence from birth to death is organically embodied ina series of
associations, and life appears to have its full value only in these close
ties. Though there is in them a well-ordered gradation between
persons who command and who obey, yet the prevailing feeling is
that of equality ... Thegroup imposes dutjes on the individual, but
it also grants privileges; it takes from its members much of their
persona1 responsibility and offersthem itsprotection . ..Membership
in a communal bond which involves fellowship with the CO-members
and connexion with the ancestors givesthe individual peace of mind
and a feeling of security. The introduction into a conscious partici-
pation in the communal life of the group, and a knowledge of the
mles of behaviour resulting from it, form an essential part of
education l."
A modern economist, Prof. A. O. Hirschman, has pointed to what
he describes as a '4group-focused image of change" in the case of the
traditional, communal type of society. He writes that even-
"[wlhen the idea of the possibility of economic progress is forcibly
impressed upon the consciousness of such a society, it will be inter-
preted to apply only to society as a whole. In other words, individuals
will think of economic change as something that mut affect equally
al1 members of the group with which they identify themselves 2",
and that this "group-focused image of change" is ". .. incompatible
with any large-çcale development aiming at a fundamental transfor-
mation and modernization of an economy" 3.
25. Applicants purport to find the "most extreme" example of Re-
spondent's alleged "tendency to categorize by group designation" in
the speech made by South Africa's Minister of Bantu Education on the
occasion of the introduction in the South African Parliament of the
Extension of University Education Bill in 1959 5.They quote a part of
the said speech, and Say that the Minister therein characterized "South
African tribes as 'national units' and 'national groups' " 4.
Applicants' allegations are not correct. The Minister did not charac-
terize South African "tribes" as "national units" or "national groups",
and in the passage quoted by Applicants he did not, as they suggest,
deal with such Bantu units or groups. The Minister, who spoke in Afri-
kaans, used the word "volkseenheid" to describe the European group,
the Coloured group, and various Bantu groups, or peoples. The word is
quite inappropriate to describe a tribe, and was not intended to refer to
tribes. There are, to cite an example, various Xhosa tribes in South Africa,
and all these tribes together constitute the Xhosa people, or such a
"national unit" or "national group" as the hlinister had in mind. There
are several such Bantu groups or peoples in South Africa. They are, and
Westermann, D.. The Africar?: To-dayand Tomorrow (rgqg),p. 65.
Hirschman, A. O., The Slrafegy ofEcmomic Developmenl(1960).p.12.
Ibid., p13.
+ IV, p. 368,
VideIII, pp.482-486, in regarto separate universities in South Africa.
The word "volk" means a "peopIe", whiIe "eenheid" means"unit". VideIII,
P. 484.58 SOUTH WEST AFRICA
have for a long time been, separate groups which are conscious of, and
desirous of maintaining, their separate identities, and in Reçpondent's
submission the recognition of such groups as peoples or embryo nations
isnot only realistic, but proper.
In the passage quoted by Applicants the Minister, as stated above, did
not deal onlywith Bantu "national units", but had in mind al1such units
in South Afnca, i.e., also the White, Coloured and Indian groups. This
is clear from the extracts from the speech quoted by Respondent l,and
also from words used by the Minister but not quoted in the Counter-
Memorial. The following, e.g., occurs in the Minister's speech shortly
after the first extract quoted by Applicants in the Reply =:
". .. it has been our experience that when Bantu students register at
universities which are really inteaded for othw national groups, the
needs of their own national communities are not taken into ac-
count .. .3".
Applicants say that as a result of the outlook reflected in the final
paragraph quoted by them "the social interchange and natural compe-
tition necessary for the realization of wider horizons is made impossible"
and that "Respondent's policy serves to harden the lines of demarcation
and to render static the elements of society" 5.
Respondent has already shown that all relevant factors were duly
considered and weighed when it was decided to establish separate univer-
sities inSouth Africa, and that Respondent believes that such universities
serve the best interests of al16.Respondent has also shown that its policy
of separate development is based, inderalia, on the fact that society in
South West Africa, as in South Africa, is not homogeneous, and that the
separate development of the various groups, or societies, constituting
the population, offers the best prospect of ensuring the peaceful develop-
ment and CO-existenceof al1 concerned '. In the circumstances Respon-
dent does not propose to deal specifically 4th Applicants' above-quoted
allegations, Save to Say that it does not understand the allegation that its
policy "serves to ... render staticthe elements of society". Ifthe con-
tention is that ils policy in providing for the separate development ofthe
population groups does not foster integration of such groups, then their
statement may be accepted as correct. If,however, the contention is that
the policy of separate development inhibits progress, then the allegaiion
is emphatically denied. As Respondent has explained, the aims of its
policy are precisely toprornote the progress of al1the populatio~l groups,
and particularly the Native groups, and proof has been given of the
achievements actually attained in this regard.
26. Applicantsalso Saythat-
"[a]striking indication of Respondent's attitude is revealed by the
factthat, throughout its Counter-Mernorial, Respondent attributes
' III, pp.483-484. Videparticularly the last paragraph in the sub-section at
P. 485.
IV, p. 368, footnot4.The words occur where the first dots appear.
U. of S.A.. Parl. Deb., House of Assembly. Vol. ro(rgsg),Col. 3264.(Italics
added.)
Ibid., pp. 368-369.
6 Vide III, pp. 477-489.
' 11, pp. 457fi. REJOINDER OF SOUTH AFRICA 59
to individuals qualities and characte~isticswhich may only properly
be assigned to groups l".
Respondent does not propose to enter into an argument with Applicants
as to how far one can (as Applicants do) properly assign "qualities and
characteristics" to "groups", Le., apart from the members constituting
the groups. It is also not clear to Respondent precisely what Applicants
intend to convey, for, apart from referring to one passage in the Counter-
Memorial, they have not attempted to prove the sweeping allegation that
it is a "fact" that Respondent has throughout its Counter-Mernorial
attributed to individuals "qualities and characteristics which may only
properly be assigned to groups". The said passage in the Counter-
Mernonal reads as follou7s:
"For the White group of South West Africa, which had the
advantage of the education tradition of Western civilization ex-
tending over centuries, there u*as IittIe difficulty in devising a
syllabus suitable to its needs 2."
Applicants Say in regard thereto that Respondent ascribes to " 'White'
children of school age, charactenstics which may onIy be properly attri-
buted, at all, to an entire culture seen in the perspective of hundreds of
vears" I.Their allegation is without substance. Respondent did not, and
&d not intend to, attribute "characteristics" to children of school age.
What Respondent intended to convey was that when provision had
initially to be made for the education of the children of the European
population of the Territory, it was comparativelyeasy to devise a syllabus
for them because they belonged to a group with a Western cultural
heritage. 'l'here can surely be no doubt that Western culture, or civili-
zation, plays a role inthe determination of syllabuses for the children of a
group which has a Western cultural heritage. In the case of the indigenous
groups, Respondent pointed out in the Counter-Mernorial that there
was no such tradition of Western education and, accordingly, there were
far more problems in devising a proper syllabus. Perhaps Respondent
can illustrate what was intended to be conveyed by making the following
respectful submiçsion, viz., that the Americans responsible for the
education of American children in Liberia will have little difficulty in
framing proper syllabuses and teaching materials for those children, but
that they will find it amatter of some difficulty to do the same in the case
of the indigenous chiIdren of the country, particularly if these is to be
cornpliance with the requirement that "[tJhroughout the textbooks the
African child studies should run the fabric of African life and culture" 5.
\Vithout substance, also, is Applicants' further allegation that "[wjhen
Respondent refers to individual human beings, it is in the large" l. In
order to çubstantiate this sweepingallegation, they refer to the following
sentence in the Counter-Mernorial: "The members of the White group
were derived entirely from peoples and communities regarded as bearers
of Western civilization 6."In this sentence, which occurç in a paragraph
l IV, p. 369.
III, p. 363.
Ibid.. pp. 363-364.
Ibid.p. 382.
Ibid., p380.
+3 Ibid., p.354.60 SOUTH WEST -4FRIC.4
dealing with the "Varying Stages of Advancement of the Different
Groups" l,Respondent spoke "in the large" because itreferred to al1the
members of the White population-and it used the word "The" (whicli
is omitted irom Applicants' quotation) before the words "members of the
White group" to make that clear.
In another passage quoted by Applicants from the Counter-Memorial
in this same connectiori 2, Respondcnt pointed out, while dealing with
ciifferencesin the social and economiclevels of development of the various
population groups at the inception of the Mandate, that in the case of the
"indigenous groups" there was an absence of a tradition of education
and also, because of their background and tradition-bound economies, an
absence of "those qualities and incentives which characterize a modern
economy and wllich make for the creation of economic opportunities and
potentialities". Respondent says that its speaking "in the large" in this
regard is whollj~justified in the light of circumstances as they existed at
the time, for,,if considerations of the kind mentioned did not apply to
every single member of the groups concerned, the exceptions must have
been very few.
In regard to the aforegoing Respondent says, furtherrnore, that it is
wrong to suggest that its policy of separate development of the various
groups has no regard to the abilities or needs of individuals comprising
such groups. Thus, e.g., when speaking of opportunities for advanced
employment or economic activity, as created by separate development,
regard is obviously had to individuals who may have special endowmentç.
27. Having alleged that Respotident "expresses its policy iri lerrns of
'groups' "3, and that it regards even South African tribes as "national
units" or "national groups" 3,Applicants make the surprising allegation
that Respondent's approach isone which-
". .. classifies alt 'Nativesor'Bantw'into one large homogeneozts mass,
without regard tothe fact that 'Natives' may and do differ extremely
der se,as do any other human beings 4". (ItaIics added, Save in the
case of inter se.)
The allegation regarding Respondent's alleged approach is in conflict
with Applicants' earlier allegations. It is also, of course, in conflict with
the true situation, for Respondent's policy of the separate development
of the Native, or Bantu, groups is based on the very fact that the Natives,
or Bantu, do not constitute a homogeneous society, and in fact makes
provision, in as far as is practicable, for their developrnent as separate
cornmunities. Applicants' further allegation that Respondent has no
regard to the fact that Natives differ among themselves, is not true.
Respondent appreciates that individuals of al1 groups differ amongst
thernselves, and says that its policy of separate development of the
different groups has regard to that fact.
28. In the same paragraph in which they allege that Respondent's
approach is to classify "al1 'Natives' or 'Bantu' into one large homo-
geneous mass", Applicants make the further allegation that "Respon-
dent's only acknowledgement in practice" of the different "levels and
III,p. 354,heading (a).
IV. p. 369, and wide III, p. 383.
IV, p.368.
Ibid.p. 369. REJOINDER OF SOUTH AFRICA 61
stages of development" of the various groups is ". . . to permit the
children of different 'Native'groups to be instructed in different 'mother
tongues' " l.
It is not appreciated how the use of the mother tongue as medium of
instruction can be said to be in recognition of the fact that the groups are
at different levels of development. Respondent stated in the Counter-
Mernorial that mother-tongue instruction was sound educational policy 2,
and that experts accepted "as axiomatiç, on psychologica.l, sociological
and educational grounds, that the best medium for teaching a child is
hiçmother tongue" 3.This aspect of Applicants' allegation is,however, of
little importance. What is important, in vietv of theattitude iaken upby
AppLicants elsewhere in their Reply, is that the allegation involves an
admission that Respondent's policy of mother-tongue instruction in fact
serves the differing needs of the children of the different Native groups.
Furthermore, the allegation that Respondent "permit[s]" the children of
the different Native groups to be taught through the medium of their own
language implies not only that Respondent iç doing something which it
ought to do, but also that it isacting inaccordance with the wishes of the
parents of the different Native groups.
Respondent points out that the attitude here displayed by Applicants
is in direct contrast ta what Applicants allege in regard to mother-
tongue instruction in another part of the Reply dealing witk education 4.
There they allege, inter alza, that mother-tongue instruction constitutes
"separation of 'Native' children by linguistic classification" 5; that it
renders the Native inhabitants of the Territory ever Iess "able to stand by
themselves . . ." 6,that it "ti~wart[s] the social progress of 'Natives' by
isolnting them from each other" 7,and that it "perpetuates, rather than
improves, existing deficiencies" 8.
As to Applicants' allegation that thcre is noacknowledgment in practice
by Respondent (save to "permit" the use of mother-tongue instruction)
of different levels and stages of development among the Native groups,
that "the Herero are lumped togethcr with the Dama, the Ovambo with
the Bushmen" l,etc., Respondent says that it is not true. Respondent in
fact, wherever practicable, differentiateç in various respects between
Herero, Nama, Dama, Bushmen, etc., not only because of different
stages of development, but because of the extensive differences between
them (of which level of development is only one)-which differences aIso
result in a desire on the part of the groups ta preserve their separate
identities. The provision ofseparate schooling facilities, including mother-
tongue instruction, is one example of such differentid treatment. Pro-
vision and protection of different homelands and reserve asn, of specific
forms of self-rule, are other instances. Such separate provision extends
also to housing in Native urban areas. Respondent points out, further-
more, that its policy of separate development aims at a situation which
l IV, p.369.
III, PP. 357 and 358-359.
Ibid.,p.377.
Vide IV, pp. 374-383.
Ibid.p,. 374.
fiIbid. ,. 375.
Ibid. p. 378.
Ibid., p.380.62 SOUTH WEST AFRICA
isthe direct opposite of any "lump[ing] together" ofdifferent population
groups l.
29. Applicants make the following further allegation: They Say that
Reçpondent avers that it iç foliowing a policy in the Territory-
". .. which accords the highest recognition to the identity and
cultural heritage of each of the Native groups, and that its policy
endeavours, as far as possible, to provide for the particular needs of
allthe groups 2'',
but they add that "Respondent nevertheless does not attempt to provide
for the 'particular needs' of individuals comerising the groups" 3.
The only "evidence" advanced by Applicants to support this allegation,
which is not true, is the rernainder of the paragraph in the Counter-
Mernorial from which the above-quoted passage is taken, and which
follows immediately thereon. It reads as follows:
"To achieve this object, every endeavour has been made to enable
the children of each of the groups to be educated separatelyin their
own language and by their own teachers. This in itself is a vast
undertaking but, in Respondent's view a necessary one. Syllabuses
have been designed to fit the cultural and historical background of
all the Native groups, and parent communities in these groups have
been given an activeshare in the education of their children. These
essential foundations having now been well-laid, the groups them-
selves arebeing afforded every opportunity to CO-operatein their oivn
development to the highest level they can attain 4."
This passage does not, in Respondent's subrnission, afford the slightest
justification for saying that Respondent "does not atternpt to provide for
the 'particular needs' of ilzdividuals comprisi7îgthe groups". Respondent
was dealing with the educational facilities provided for the children of
the different groups, and not with the position of the various individuals
within each group. No educational system can make provision for al1
the needs of every single individual it seeksto serve. The passage frorn the
Counter-Mernorial quoted above reveals clearly that Respondent caters
for the needs of the members of the groups by giving them their education
in their own language, through teachers who speak their language, and in
accordance with syllabuses which take account of the culture and histor-
ical backgrounds ofthe various groups and their members. The position is
the same in the case of all the population groups in the Territory, and
there is accordingly no justification for saying that Respondent "does
not attempt toprovide for the 'particular needs'of i?~dividun~ smprisi~zg
the groups".
Sirnilar considerations apply in regard to Applicants' allegation that
"[tlhe limit of the horizon for a 'Native' is, in fact, 'the highest level
Fis group] can attain', rather than the highest level hecan attain" 3. The
allegation is made a#rofos of Respondent's statement that "the groups
themselves are being afforded every opportunity to co-operate in their
own development to the highest level they can attain", but there was no
1 VideII, p.474.
IV,p. 370, with referento III,p.540.
IV,p. 370.
III, p.540. REJOINDER OF SOUTH AFRICA 63
intention on Respondent's part to distinguish between groups and the
members of groups, or to deal with any particular level of development
which any individual could attain. The intention was to convey that
measures had been taken which would enable Native groups (whichterm,
in the context, includes the members of such groups) to CO-operatein
their owi development to the highest level of which they were capable.
30. Applicants allege that "[tlhe policy of differentiation by the ex-
clusive arrangement of individuals into groups is rigidified by its ready
suitabiiity for the deveiopment of the policy outlined in Part (B) of this
Chapter" l.This means, if Respondent understands it correctly, that
Respondent classifiesthe population into groups so that it can develop a
policy of oppression relating to groups. The true position, as shown
before, is that Respondent's policy of differentiation is based on the fact
that the population is in fact composed of different groups, that there are
differences betw-eenthose groups, and that theçe facts are to be duly
recognized in formulating a policy best suited to the weli-being and
development of al1concerned.
Applicants allege, furthemore, that Respondent's policy, asdescribed
by them, "enables Respondent to adopt differentiated policiesofexpendi-
ture, always to the overwhelming disadvantage of the 'Native' groups" l.
They also Say, in this regard, that whilst they agree that "[clolour and
racial origin $6~ se do not determine the distribution of educational
facilities or differential expenditures on education in South West Africa"
the "[dlistribution of facilities and differential expenditures ... are, in
fact, determined by the weightgivevtby Respondent to colour and racial
origin" 2.As stated before, Respondent's policy is based on the existence
of different groups and of differencesbetween such groups. It isin no way
based on financialconsiderations. It isnot true to Say that "[dlistribution
of faciMiesand diflerential expenditures" are deterrnined by the "weight"
which Respondent giveç to "colour and racial origin". In its Counter-
Mernorial Respondent dealt at length with circumstanceç which have
affected the extension of educatjonal facilities in the case of the Xative
and European groups, and it is not intended to repeat what is there
stated. Respondent iikewise dealt with the question of differential
expenditures in the case of European and Xativeeducation, and with the
factors which play a part in that connection 3,and refers to what is there
stated.
IV,p. 370.
Ibid., p. 367.
III, pp. 382-390andpp.532-537. CHAPTER III
NATURE OF EDUCATION IN THE TERRITORY
A. General
r. ln this chapter Respondent deals with section (B) of Applicants'
chapter on education, being the section headed "Nature Of Education
In The Territory" l.This section consists of an introductory portion 2,
and three numbered sub-sections under the following titles:
"(1) Segregation by Race" ;
"(2) Separation by Tribe" +; and
"(3) Limitation of Objectives in Syllabus" 5.
2. ln their aforesaid introductory portion Applicants Say:
"If the coiiditions in 1920 were those of divided and underde-
veloped 'groups' in a difficult situation, as Kespondent isat pains to
point out, surely the conferral of the Ma~idate was intended to
remedy this situation 6",
and they theii proceed to sllege that, instead of remedying the position,
". .. Respondent's policies systematically foster and accentuate the
difierences between population 'groups' rather than the similarities
which suc11'groups' might have developed over forty-three years of
social, economic, and cultural CO-existence 6". .
Respondent's educational policy in South West Africa, Applicants saIr,
"segregates al1of the inhabitants bp race" 6,and "separntes the 'Native'
inhabitants by tribe" 6.The policy, they dso allege, "prepares the 'non-
European' inhabitants for a subordinate role in tlie social,economic, and
cultural life" of the Territory.
3. The aforementioned allegations, as developedin theabove-mentioned
sub-sections in ordcr to show, as they aliege, that "[sluch segregation,
separation, and limitation are al1in violation of theduty of Respondent
to 'promote . ..the material and moral well-being and the social propess
of the inhnbitants' of South West Africa" 7,will be dealt with below by
Respondent linder the headings "Segregation by Race", "Separation by
Tribe" and "Limitation of Objectives in Syllabus".
Before doing so, liowever, Respondent makes the following observa-
tions regarding Applicants' aforementioned broad averinents:
(a) In regard to Applicants' allegaiion that the Mandate intended that
conditions which existed in 1920 should be remedied, Respondent
is in agreement with the proposition that its duties involved the
irnprovement of the conditions of the "underdeveloped 'groups' ",
lIV, pp. 370-386.
Ibid., pp. 370-371.
Ibid.. pp. 371-374.
Ibid., pp. 374-383.
Ibid., pp 383-386.
Ibid., P. 370~
Ibid., p. 371. HEJOINDER OF SOUTH AFRICA 65
a duty which Respondent has, in its subrnission, performed to
the best of its ability. In so far, however, as Applicants suggest
that Respondent was obliged to "remedy this situation" by elim-
inating the differences between the various population groups
in an effort to integrate di the groups into a single community,
the suggestion is denied. As Respondent has already indicated,
the authors of the Mandate themselves recognized the diversity
which characterized the population of the Territory, and con-
templated that there would be differential treatment of the various
population groups '.
(b) It is denied that Respondent's policies in the Territory foster or
accentuate differenceç between the population groups. The truth
is that Respondent's policies have, interalia, by recognizing and
paying due heed to differences between racial and cultural groups
inhabiting the Territory, promoted the peaceful development and
CO-existenceof such groups. In regard to education, Respondent
has shown in its Countcr-Mernorial 2that sound principles underlie
its policy of providing separate facilities for the different popula-
tion groups.
(c) Respondent denies that its educational poIicy in the Territory
"prepares the 'non-European' inhabitants for a subordinate role
in the social. economic, and cultural Lifeof South iliest Africa" 3.
This broad and sweeping charge is also made by Applicants in
eariier portions of their Reply and has already been dealt with by
Respondent 5.
B. Segregationby Race
4. Applicants dege that Respondent's system fosters "racial and
tribal feelings"6,and they dispute Respondent's averment that a system
of mixed schooling would "lead to dissatisfaction and group frictio.. .
[and] result in the neglect of the needs of ali the groups and in irreparable
hm to the Territory" 6.They Say that Respondent, by maintaining its
present systern, "is inevitably setting the stage for more profound dis-
satisfaction and group friction than any yet rnanifested" 6.
Respondent does not ap reciate what precisely is intended to be
conveyed by this allegation.PV ilsit is clear that it involves a prediction
of dissatisfaction and friction to corne, it iç not apparent to what "dis-
satisfaction and group friction" Applicants refer as having occurred in
the past and which, according to their prediction, will become "more
profound" at some time in the future.
In support of their prediction of future dissatisfaction and group fric-
tion in South West Africa, Applicants rely on the following statement
made by a former Chief Justice of South Africa, Mr. Justice Centlivres,
in 1956,regarding separate univerçities in South Africa 6:
"AS faras the present writer isaware therewas neither in1948nor
Sec.B, parasI -15,supra.
= In> pp 353-382.
IV,pp.370-371.
Vxdesec.E, szq9raandChap. II, paras. 5 seq.,supra.
IV,p.371.66 SOUTH WEST AFRIGA
in any subsequent par any unpleasant relationship between
Europeans and non-Europeans in those universities which admitted
both Europeans and non-Europenns. In these raciaily mixed
institutions the relationship has always been satisfactory .. .On the
other hand experience has shown that when the policy of segregated
university institutions is applied, there is a very real possibility of
trouble ... l."
5. Respondent says the folIowing in regard to the above statement:
(a) The writer's reference to 1948is ~iodoubt to be explained by the
fact that the present Government came into power in that year.
The impression is created that it is only the present Government
which saw any reason for sepnration in university facilities. In
this regard Respondent points out that in 1945, when General
Smuts' United Party was in power, there was wide approval in
ParIiament of the view that the Government should consider the
adviçability of recommending the application of the principle of
segregation to institutions for higher education. In the course of a
debate in the House of Assembly Dr. Louis Basman, a member of
the United Party and-at that time also member of the Council of
the University of Cape Town, said, inter alin:
". . neither the European nor the non-European isvery happy
at the same university. The non-European does not feel at
home because he thinks he is treated with disrespect .. .and
the . . European feels awkward at the fact tllat he cannot
fraternise with the non-European .. .2"
(6) No mention is made by the writer of the fact that there was little
or no contact between Europeans and non-Europeans in those
spheres where friction would be most likely to arise, viz., in the
intimate, persona1 contact spheres. So, e.g., there was no mixed
sport, no mixed social gatherings such as dances, and no mixed
boarding facilities. Furthermore, by reason of the srnall numbers
of non-Europeans at the mixed universities 3,contact in any sphere
was at alltimes on a small scale.
(c) Mr. Justice Centlivres' views, it may be mentioned, are not sup-
ported by Dr. Moffat, a professor ai the University of Cape Town
for many years. He is reported to have said:
"The non-European students who are at present at some of
the Universities or collegeswhich are reallÿ European,are in the
university but not of it. They do not share in the univerçity life
to the full and therefore do not drink of the essenceof university
life which should have no dilution byreason of race or colour. It
seems to me that in South Africa, with itsdeclared policy of
segregation in so far as it can be obse~ed, the full life of univer-
sity life can be obtained by the non-European only in a uaiver-
sity fornon-Europeans. The collegeat Fort Hare isdoing this to
some extent and is developing a distinct university, if one rnay
judge frorn what lecturers there te11us. This could never corne
at a mixed college where the non-European will always be up
1IV, p. 371.
3 V'id111,pp.P482-483... HousofAssetnbly, Vol53 (1945)~Col. 5517. REJOINDER OF SOUTH AFRICA 67
against a colour bar, with the development of an inferiority
complex or a rebeilious resentment,neither ofwhichisconsistent
with the university outlook l."
(ci)There is no elaboration by Mr. Justice Centlivres of the cryptic
statement that "experience" has shown that "when the poiicy of
segregated university institutions is appiied, there is a very real
possibility of trouble".
No particulars are given of such alleged "experience". Mr.
Justice Centlivres' staternent (made in 1956) could not, with any
justification, have been made regarding experience in South Africa.
Furthermore, South Africa's experience of separate university
institutions since the passing of the Extension of University Edu-
cation Act in Ig5g in no way supports the "experience" referred
to by Mr. Justice Centlivres.
(e) Finally, Applicants mnke no attempt to show how the statement,
which concerns the Iimited field of mised universities in South
Africa, is relevant to the many cornplex conditions and considera-
tions which govern the schooling of the children of the different
population groups in South West Africa.
6. Applicants make the further statement that-
"Respondent's de juresegregation of schooI children by race and
by tribe could only be permissible if the segregation were accom-
plished de facto by applying a test of individual ability, not one of
race or 'group'
This statement does not make sense. It is logically impossible for "de
jure segregation . . by race and by tribe" to be "accomplished de
facto" on a basis of individual ability tests. However, in view of Appli-
cants' reference to separation on grounds of ability, Respondent points
out that the Counter-hlemorial ' clearly reveals that Respondent's system
of having separate schools for the children of the different population
groups is not baçed on tests of individual ability. It is accordingly not
appreciated why Applicants proceed to argue about the unlikelihood of
d "able" children being in the White group, and al1"slow" children in
the Bative or Coloured groups, etc.
Respondent denies that separntion "could only be permissible" ifbased
on ability tests. Indeed, one of the major disadvantages of mixed schools
would be that children of ail groups would be hampered as regards
educational development to the bcst of their respective abilitjes. The
circumstances and considerations which govern Respondent's system
have been dealt with in the Counter-Mernorial, andRespondent denies
that the system is in any way a violation of the termsor the spirit of the
Mandate.
Inthe same context Applicants refer again, in a footnote 5,to aportion
of a paragraph in the report of the Eiselen Commission dealing with the
In a Memorandum submitted to a Commission of Tnquiry into the training of
XIedicalStudents in South Africareferredtoby the Deputy hlinister of Education,
Arts and Science in the House of Assernbly on 8 April 19videU. ofS.A., ParE.
Dcb., Houseof Assembly, VolIOO (1959)C .ol. 3246.
Vide III, pp479-485 (paras. 30-36).
* III, pp. 353-382.
"V, p. 371, footnote 6.65 SOUTH WEST AFRICA
"basic physical and psychological endowment" of European and Bantu
children. As shown above l,Applicaiits do not mention that the Com-
mission found that cultural differences were so profound as to cal1for
differentiation in the education of European and Bantu children.
7. On the same subject Applicants also Say that "[slegregat'ion on
racial grounds has been condemned in al1civilized nations, at least since
World War II" *, and in this regard they refer to a passage in a lecture by
Professor C. W. de Kiewiet in whicli he said, in 1960, that the South
African law providing for separate universities runs counter to "... the
growing conviction in the modern world that the benefits of civilisation
must be made equally available to al1men regardIess of race or creed 3".
Amongst the benefits of civilization mentioned by Professor de Kiewiet
is education, In this regard Respondent says, as has already beeii ex-
plained, that its policy aims at making available adequate educational
facilities to aU thc inhabitants of the Territory, "regardless of race or
creed", but that, for sound reasons, it provides such facilities on a basis
of institutional differentiation between the various groups. Professor de
Kiewiet avoids the various considerations underlying Respondent's
policy of separate development,also in the educational field, and appears
to rest his cnticism on the foIlowingstatement, which Applicants do not
quote, viz. :
"It is an evasion to esplain that the access denied here at Cape
Town will be supplied somewliere else. The explanatiorl may be
honestly rncant, but it cannot be implemented 4.JJ
The record refuteç this allegntion. & haç been indicatited,provision
has been made for separate university facilities for the different popu-
lation groupsin South Africa 5.
8. In the same context Applicants Say further that "[sjegregation on
racialgrounds"-
"... is excluded, for example, from the educational policies of
Territories subject to Trusteeship Agreement under Chapter XII
of the United Nations Charter, or subject to reporting as Non-Self-
Governing Territories under Chapter XI 2".
In support of this allegation Applicants include in the documentation
ofthese ~roceedin~san Annex 5. headed "Racial Sevaration In Education
In ~e~êndent~erritories, ~sTiewed By The ~rhe Nations" 6. Res-
pondent will deal with this Annex in a separate chapter liereinalter '.
At this stage itis only necessary to answer certain specific alleg t' a ions
made by Applicants regarding the attitude of the Permanent Mandates
Commission and the League Council regarding Respondent's policy of
having seyarate schools in South West Africa for Europeari, Coloured
and Nativechildren.
Vide, Chap. II. para.15,supra.
' IV..A.-,72.
Ibid.. footnote1.
De Kiewiet. C. W.. Acadenric Freedoin: The Second T. B. Davie Jlemoria1
Lecture ~elivered atthéUniversity of Cape Town on 26 July ,960 (196i),p. 18.
III,pp. 476 and 486.
IVi Pp. 398-403.
Chap. V, infra. REJOINDER OF SOUTH AFRICA 69
In the Counter-Mernorial Respondent demonstrated that the Perma-
nent Mandates Commission and the Council of the League were at al1
times fully aware of Respondent's aforesaid policy l. Respondent also
pointed out that these bodies at no time suggested that its policy was not
in keeping with the terms of the Mandate, and Respondent made the
submission that these bodies, being fully aware of the "vast differences
between the various groups in their respective levels of civilization, their
traditions and cultural backgrounds", "appreciated and did not oppose
Respondent's view that the interests of the various groups could best be
served in separate schools" 2. Respondent also referred, in this regard, to
the attitude adopted by the Permanent Mandates Commission towards
Respondent's policy of mother-tongue education 3.
It was also demonstrated, by reference to the Minutes of the Perma-
nent Mandates Commission, that separate facilities for different popu-
lation groups also existed in other mandated territories during the life-
time of the League 4.
Applicants challenge Respondent's assertion that the Permanent
Mandates Commission knew and tacitly approved of its said policy 5.
They Say that Native education was, during the existence of the Com-
mission, "almost completely in the hands of the missions", and they
argue that-
". .. as a result, it can hardly he said that Respondent had, at that
time, a 'policy of kaving separate schools in South West Africa for
European, Coloured and Native children' which was susceptible of
tacit or express approval bythe Permanent Mandates Commission 'j".
There is no substance in Applicants' contention. At the risk of labour-
ing a point which, in Respondent's submissions is obvious from what is
said in the Counter-Memorial 7, Respondent adds the following to
illustrate that it was the policy from the outset to have separate schools
for European, Coloured and Native children :
(a) The Education Proclamation, 1921 8, made provision for the
establishment of schools for European children 9, and also for the
establishment of mission schools for non-European chddren la.
Such schools for non-European children had to be classified by
the Director of Education as mission schools for Coloured pupils,
l111,PP. 372-374.
Ibid. p. 374
Ibid.p,p. 359 and 374.
Ibid.,pp. 374-375.
IV, pp. 372-373. Applicants, allegedly to avoid the creation of a "misleading
impression" by Hespondent, say in footnote 2 at IV, p. 372that the "dates of the
P.M.C. material quoted by Respondent [are! 1923, 1928, 1939, 1928, and 1930,
respectively".Why there should be any danger of a "misleading impression" is not
clear. Respondent mentioned the dates in question. Furthermore, 1939 was. for
practical purposes, the final yeof the active existence of the Commission and the
League.
IV, p.373.
III,pp. 353 et seq.
PTOC. Eo. 55 of rg21 in The Laws of South West Africa 1915-1922, Vol.1, pp.
632-683 and vide III, p. 351.
Ibid.,secs.20-31, pp. 639-642.
'OIbid., secs105-112 ,p. 666-667.7O SOUTH WEST AFRICA
or as mission schoolsfor Native pupils, and had to be aided accor-
dingly I.
The proclamation prohibited any European child from attending
a non-European school,Savewith the consent ofthe Administrator =.
(bj 'KheEducation ProcIamation, 1926 " which superseded Proclama-
tron No. 55 of 1921,made provision for the establishment of schools
for European children 4, and for the establishment, recognition
and control of non-European schools 5. It empowered the Adiiiinis-
trator to estabiish government schools for Coloured pupils 6, and
gave permission to churches and missions to establish mission
schools for Coloured or Native pupils 7.Mission schools had to be
classified by the Director of Education as mission schooIs for
Coloured pupils, or as mission schoolsfor Native pupils
In 1934 the Administrator was empowered to establish govern-
ment schooIs for Native pupils 9,and the first government Native
schoolwas established in 1935 IO.
(c) Tlie foUowing are additional references to Respondent's annual
reports to the League, and to proceedings of the Permanent Man-
dates Commission :
(i) In 1931 mention was made of schools for Coloured pupils,
and of the fact that the syllabuses used in such schools were
different from thoçe used in Native schools ll.
(ii)fy 1933 12,and again in 1934 13it was reported that there were
separate schools" for Coloured children, and that the medium
of instruction in such schoolswas one of the officia1languages.
In the 1934 report it was stated that there were, in that year,
IO schools for Coloured children, with an enrolment of 565
pupils.
(iii) It was mentioned on more than one occasion in annual reports
that Coloured pupils were not allowed to attend European
schools 14; that Coloured pupilç were sometimes, hecause of
practical difficulties, obliged to attend Native schools 13;and
that the admission by missionaries of Native pupils to classes
which had been established for Coloured children led to protests
by Coloured parents 15.
Respondent therefore denies Applicants' allegations that "Respon-
Pvoc. No.55 of1921, sec.IIO (a).p.667.
* Ibid., sec106.p. 666.
' Proc. No.16of 1926 inThe Law O/South West rliric1926,VOI.V, pp.132-226.
Ibid.,secs. 29-36pp.r46-150.
' IIMd.,SeCs.122-133p,p. 19-+-19S.
Ibid.,sec.122,pp. 194-196.
Ibid., sec123.p. 196.
Ibid., sec131,p. 198.
Proc. No. IO of1934 in The Laws ofSouth lYest Africa1934.1'01.XIII, pp.
120-122.
'O III, p425.
IL U.G. 27-1931,p. 55.
12 U.G. 16-1933,p. r44.
'W.C. 527-1934p.. 29.
l5 U.G. 31-1937..p.338. REJOINDER OF SOUTH AFRICA 7I
dent's policy was, in fact, developed only after the Second World War",
and that "[ilt has never been reviewed, with Respondent's cooperation,
by an administrative supervisory or-an"- l.
9. Another example referred to by Applicants in support of the con-
tention that segregation on racial grounds has been condemned "in al1
civilized nations, at least since World War II", is given by them in the
follosving terms :
-
"Intensive efforts made in recent years in the United States to
bar racial segregation from public education through the medium
of judicial action are worthy of note in this connection 2."
In this regard they cite passages from the case of Brown v. Board of
Edacatiolz 2 in support of the proposition that "separate educational
facilities are inherentiy unequal".
This case is also referred to in other parts of the Reply and has already
been dealt with by Respondent elsewhere in this Rejoinder 3.
In this section of the Rejoinder Respondent comments as follows on
the decision in the said case and the reliance placed thereon by Applicants
in the present context :
(a) This case involved the interpretation and application of a part
of the 14th Amendment to the United States Constitution providing,
inter ah, that ". .. no State shall ... deny to any perçon within
itsjurisdiction the equal protection of the laws".
Applicants say that the Mandate is a "constitutional-type
document", that the obligations contained inArticle z thereof are
more affirmative and explicit than the "general injunction of the
'equal protection' clause of the Fourteenth Amendmcnt", and that
Respondent's policy of segregation in the educational system of
the Territory "is more affirmative, explicit and far-reaching than
was the racial bar struck down hy the Brown decision" 4.The
suggestion seems to be tliat this decision must, therefore, be determi-
native of Reçpondent's powers and duties under the Mandate.
Respondent rejects the suggestion. Save for certain specific pro-
visions 5,the Mandate contains no provisions limiting or prescribing
Respondent'spowers of legislation and administration 6.Respondent,
while subject to the general duty of promoting to the utmost the
material and moral well-being and the social progress of the in-
habitants of South West Africa, has a discretion as to the particular
methods it deems best to apply in order to carry out that duty. In
particular, the Mandate contains no provision which can pos~ibly~be
construed as requiring that there is to be a mechanical abstention
from differential treatment of the various population groups. On
the contrary, two provisions explicitly prescribed such differentia-
IV,p. 373. In regard tthe comment of the Special Cornmittee for South West
Africa (IV, p. 373, footnote 7) relative to Respondenalleged basic policy in the
educational field, reference may be made to what has already beenstated in Chap.
II, paras. 5 et sep., supua.
IV, p. 372.
Videsec. B, para.zg and sec. E, Chap. X.
IV,p. 373.
drticles 3-5 of the Mandate for GermanSouth-West Africa.
II, pp. 387-389, and sec, C, para20-21, supra. SOUTH WEST AFRICA
tion l.DiHerential treatment in general may well be, and in Respon-
dent's opinion is, best able to do justicto,and between, the different
population groups in South West Africa and their members 2.
(b) The Court's decision must be viewed in the contest in which it
was given, viz., that of present day American society. This is a
society in which the Negroes are, on the whole, one with their
White fellow citizens in culture and language, and where racial
origin constitutes the only difference betwecn thcm 3.It is note-
worthy that the Court at no time referred to any other factors-
such as language or culture-as possibly being of significance in
deciding the issue before it, which was formulated by the Court
as follows:
"Does segregation of children in public schools solely on the
basis of race, even though the physical facilities and other
'tangible' factors may be equal, deprive the children of the
minority group of equal educational opportunitieç? 4" (Italics
added.)
The Court was, in other words, concerncd with the question
whether the race factor itseIf-i.e., unaccompanied, and uncompli-
cated, by considerations such as culture and language-codd
justify segregation. And, also, with the question of the effect of
separation on Ncgroes in a situation where only their different
physical appearance distinguished them frorn their White fellow
citizcns. Furtliermore, no policy of development of the Negroes
as a sepnrate nation, in a territorial entity of their own, entered
into the question. Answers given tosuch questions in the Amencan
context will, it is obvious, not necessarily be vaIid in situations
ïvhere different circumstances apply, cg., in a triily heterogeneous
country like South \17est Africa, in respect of which it has been
shoïïln that there are various population groups which are intent
on maintaiiiing their separate identities, and bvhich differ from one
another not only in origin, but also in matters of culture and lan-
guage. Scparation between the said groups is effected not solely
on accouiit of diffcrence in race, but on nccount of al1the differences
wllich cliaracterize them. And the ultimate aim is separate nation-
hoods. In such totally different circumstances, where the different
population groups have never formed one community, are desirous
of mnintaiiiing their separate identities, and are, in iact, separate
communities developing into separate nations, the following
finding of the Court in the Browtt case cannot automatically be
applied to the situation :
"To separate [children] from others of simdar age and qualifi-
cations soIely because of their race generateç a feeling of in-
feriorityas to their status in the community that may affect
their hearts and minds in a way unlikely ever to be undone $."
l Article3 (concerning liquor) a4d(conccrning mititary training) of theMandate
forGerrnan South-West Africa.
Vide sec.15,supra.
Videsec. E, Chap. XI, supra.
* Brown v. Board of Educabion ofTopeka. 347 U.S. 493 in UvzitedStates Supveme
Court Reports, Lawyers' Edition, Boo98 (1954)p.. 880,
Brown v. noavd of Educalion ofTopeka, op. cil... 881. REJOINDER OF SOUTH AFRICA 73
(c) The Court stated that its finding as to the effect of segregation
and the resultant feeling of i~iferiority on thepart of Negro children
was "amply supported by modern autliority" l,and these authorities
are mentioned in a footnote (nurnbered (II))to the Opinion.
Respondent points out that scientists in the United States Iiave
seriously questioned the evidence on whicli the Court relied in
making its finding, even in the American context. So, e.g.,it has
been stated that the evidence of Professor Clark, which constituted
an important part of the Appellants' case, misled the Courts 2; and,
also, that the evidence which was put before the Court \vas un-
scientific and inconclusive, and that it did not justify the finding
made by the Court 3. Ithas been argued, furthemore, that whilst
scientific knowledge on the subject in issue is incornplete and in-
conclusive 4, "whatever evidence is available tends to support
racial separation in the schools ai Ieast throughout childhood and
adolescence" 5.It has also been stated that-
"[m]inority children of distinctive appearance can otily suffer
serious personality disabiIities as a consequence of congregation.
If the cvidence available tothe Court in Brown v. Board ofEduc.
demonstrates anything at all, it dcmonstrates that the perso-
nality impairments suffered by Negro children is (sic) lessin a
racially insulated environment than luith congregation-nt
Ieast during critical phases of personality formation 'j."
It would appear, therefore, that the Court's finding, in so iar as
it is based on or stated to be supported by modem science, is in
dispute amongst scientists in the United States. How the dispute
will ultimately be resolved amongst scientists is a matter for the
future.
In al1 the circumstances Respondent denies the implication that
the Brown case can in any çense be regarded as amounting to a
condemnation of Respondent's policies.
10. The Brown case is the subject of two Iurther staternents by Appli-
cants.
The first isthe folioiving:
"The reasoning ofthe United States Supreme Court is relevant as
a response to Respondent's query why 'the existence of similar [but
separate] institutions for Coloured and Native students should be
styled [by Applicants, in their hlemorials], "a reminder of opportuni-
ties denied" to non-European students .. .'The 'opportunities
denied' ... include the opportunity not to be segregated against
one's wishes, the opportunity to be a citizen ofequal standing with
l Brown v. Board of Educaibon of Topeka, opcit.,p. 881.
Van den Haag. E., "Social Science Tostimony in theDesegregation Cases-A
Reply to Professor Clark", VilLanouaLaw Revisw, Vol. 6 (1960), p69.
3 Ross and van den Haag,"The Fabric of Society" (rg57), quoted by Gregor,
A. J., "The Law. Social Science, and School Segregation: An Assessment", Western
Re+eGregor, A.iJ., "The Law.NSocial Science, and School Segregation:An Assess-
ment", Westcr>aReserve Law Review, Vol,14, No. 4 (Sep.1963), p.624.
Ibid., p626.
6 Ibid., p632,74 SOUTH WEST AFKICA
a 'European', and the opportunity to iive one's life freeIy in an open
societp l."(Footnotes omitted.)
This statement represents an attempt by Applicants to introduce an
argument on the fines of the so-called "intangible considerations" as
referred to in the Browncase. IVhnt the term "opportunities denied"
is now alleged to include, was not espressly stated in Applicants' hlemo-
rials,nor was it in any way irnplied. Tlie gist of Applicants' complaint
in their hlemorials was that the exclusion of non-European students from
certain South African universities had left them with fewer university
institutions whjch thejr could attend-institutions which were allegedly
of inferior quality and which could, furthermore, only be attended on
permission obtained from South African authorities 2.
The "intangible considerations" aspect is obviously a new one whicti
Applicants now seek to introduce into the case. Respondent says that
there is no substance in Applicants' argument. The advantages and
disadvantages of so-called open universities in the South African context
were duiy weighed before it was decided to establish separate higher
education facilities for non-European students 3, and it was considered
that such separation ~ould constitute a significant gain for the non-
European groups. Respondent says, furthermore, that as far as stu-
dents-European and non-Europcnn-from South \iTest Africa are
concerned, the ovemding consideration iç whether Respondent provides
them with sufficient facilitics of high quality for higher education. This,
Respondent submits, it does 4.
The second statement made by Applicants reads:
"A reflection of the proposition that separate facilities are in-
herently unequal was contained in the Report of the Eiselen Com-
mission, where it stated that :
'The Bantu have, for numerouç reasons, corne to feel that any
dioerentiatiofzin education wzzestto be [sic] theirdetriment. Much
evidence to this effect was given before this Commission, particu-
larly by Bantu teachers. Reference to previous commissions
shows that this attitude has persisted from early times ' 5."
Applicants assign to this extract from the Commission's report a
rneaning which it does not have, and whicli it was not intended to have.
Respondent points out in this regard:
(a) 'The extract does not refer to Respondent's system of having
separate schools for European and Native children, as Applicants
suggest l. It refers to differences in curricula, syllabuses and ex-
aminations 6.
(b) The Commission indicated that the attitude of the Bantu, as
perceived from evidence heard by it, had a largely economic moti-
vation 7. The Commission-othenvise than in the Brows case-
IV.p. 373.
a 1. p157.
III, pp. 482-486.
+ Ibid., pp476, 485-486.
IV!PP. 373-374.
V~de U.G. 53-1951. p. 43,paras.232-235.
vide heading toparas. 230-235and paras. 232 and 235of U.G. 53-1951,pp.
42-43. REJOINDER OF SOUTH AFRICA 75
did not deal with the question whether there was "detriment" in
fact; nor did it express any view as ta whether the "feeling" of
the Bantu was in any wayjustified.
(c) Applicants' approach, as stated before, involves the proposition
that equal treatment means the same treatrncnt. It entails, in the
case of South West Africa, that every population group should
be given exactly the same education as every other group, even if
it causes detriment from an educational point of view. This pro-
position liespondent cannot accept. There are cultural, linguistic and
econornic differences which show that equality is not necessarily
the same asidentity.
Ir. Applicants dege, furthemore, that "[tlhe practice of segregation
by race is, moreover, uneconomic" '.
This is a new allegation which was not made in the Memorials. Appli-
cants now Saythat the said "practice" produces duplication of adminis-
trative machinery and personnel, etc.,and that, since Native children are
restricted to facilities intended for Natives, they "go without schooling
in situations where thcre may be facilitiefor other 'groups', but inade-
quate facilities for 'Natives'" l.
In support of their allegation regarding duplication of machinery and
personnel, Applicants quote a passage from a book written and published
in South Africa by the so-called 1961 Education Panel 2. By quoting
r sissima verba from the Panel's report, entitled "Education for South
ffrica", without any qualification or explanation, Applicants convey the
impression that the passage was descriptive of thc position in South Africa.
But it is nothing of the kind. It iç a description of a system which is al-
kged to obtain in the Province of Quebec, Canada. The full passage
from which Applicants have extracted only a part, reads as follows:
"Two possible solutions have been tried and both warrant con-
sideration for South Africa. The one consists in separate educational
administrations for the separate groups, each administration itself
being centralized. This system lias been adopted in the Province of
Quebec, where there are separate Dircctors of Education for Catho-
lic and Protestant ediication, each witli a separate administration.
This system has found favour nowhere else as far as we know and
seems to us to suffer from several serious disadvantages. It under-
lines group differences to an extent that seem unfortunate in a
country where the different groups must CO-operate and it involves
' IV. p. 374.
2 Education forSouth Africa: The 1961 Education Panel. First Report (1963).
In the introductioto the report of the Panel it is stated that "the membership of the
Panel . . includes also psychologists. scientists. religious leaders, professional men
and business men . . .(p.xiv).Twenty-eight rnernbers subscribed to the report.
the Institute of Race Relati(uidseec. E, Chap.VI, para20,osupra). Several other
rnembers of the Panenelare members of political parties opposed to the present
Government in South Africa, or aretherwise known to be outspoken opponents of
the Government. Two well-known rnernbers.Mr. H. F. Oppenheimer and Prof. P.V.
Pistorius, are members of the Progressive Party (ibid., para. 15). The sympofhies
another prominent member, the Hon. A. van der S. Centlivres,alsolie with this
party (ibid.). Outspokenly anti-Governmenis another prominent rnember,hIr. Leo
Marquard. Another member, Mrs. U. M. Weiss, is a member of the opposition
United Party.7U SOUTH WEST AFRlCA
the duplication of al1 administrative personnel, and Iiinders the
pooling of experience even at a high level '."
Moreover, the said Panel did not, as Applicants appear to suggest,
advise any system of joint education. It recommended some form of
decentralization of the coritrol of education to smaii local authorities,
as is found in some Western European countries, in the belief that such a
system would contribute to the "amelioration of actual or potential
inter-group conflicts" and encourage "a far closer association between
the public and the school systems than existsin South Africa at present" 2.
Such an association, it believed, "would be in the true interests of national
unity, that is an identificationof the rnembers of aIlgroups of themseIves
not only with the group but also with the country as a whole" 2.
Furthermore, not only did the said Education Panel not advise joint
education, but it expressed itself against uniformity. Noting that South
Africa "has problems which are peculiar to itself arising out of its charac-
ter as a country of many racial, language and cultural groups" 3,it stated:
"One of the principal motives underlying education, which we
have not yet had occasion to mention, is the handing on from gen-
eration to generation of the distinctive culture of the group aç ex-
pressed in language, literature, traditions and custorns. In more
primitive cornmunities indeed, this is the only purpose ofeducation . ..
We do not wish to embark upon speculation asto the reasons for
the tremendous importance which human beings attach to their
group cultures, but it isan observed phenomenon universal in both
time and space, that the tenacity with which people defend their
culture against any form of attack iscomparable to that with which
they defend a dceply held religion, and indeed the two issues are
often inseparably linked. 'There are few cases in history where a
language or culture hns been successfully destroyed by persecution
or pressure by any means short of the massacre or physical expulsion
of the persecuted group. . .
This being so it must be accepted as a first principle, that no
effort will be made to destroy or impose modifications upon the
culture of any group in South Africa. The whole of history in South
Africa and in the world shows that an? such attempt would in all
probability fail, while it would create bitterness and strife in the
country so violent as to make mutual CO-operation between the
groups impossible and to interfere most seriously with prosperity
and progress +."
12. In regard to Applicants' aforementioned allegation that its system
is "uneconomic", Respondcnt concedes that ssystem of separate schools
for the different population groups must, from the nature of things, be
somewhat more uneconornical than a joint system of integrated schooIs
would be-that is, if such latter system were feasible. The question of
economy is,hoviever, only one of many factors which have to be consi-
dered, and, relevant as it may be, it cannot in the South West Africa
context outweigh the advantages of a system of separate facilities for the
Education forSouth Africaop. cil.p. 57.
Ibid., p. 58.
Ibid., 54.
Ibid.. pp54-55. REJOINDER OF SOUTH AFRICA 77
different population groups. Nor is it of nearly sufficient weight to justify
consideration of a system of mixed facilities, such as boarding facilities,
as issuggested by Applicants. This suggestion is completely unrealistic,
and runs counter to al1social traditions in the Territory. If the suggestion
is that, despite these considerations, an integrated system should ncver-
theless be enforced, Respondent is convinced not only that any such
course wiil fail, but that its attempted implementation will entai1 costs
far in excess of such extra. expenditure as rnay at present be involved in
maintaining separate educational facilities l.
13. It remains to deal briefly with an allegation made by Applicants
in a footnote on page 374 of the Reply = . hey Saythat "[als a result, inter
dia, of Respondent's segregation policies, 56.36 per cent. of the 'Native'
children in the Police Zone do not receive any education at all, whereas
99.66 percent. of the 'European' children attend school". This is agrossly
unfair statement which creates a totaliy distorted impression of the true
position, despite the use of the words inter alia.Applicants completely
ignore the many factors which have in the past affected, and still affect,
attendance figures in the case of Native pupils, not onlp in South West
Africa but throughout Africa, and tliey completely ignore the fact that
there has in South West Africa been a steady increase inthc pcrcentage
of Native children who attend schaol. Respondent's policy of separate
facilities is no more responsible for the fact that 56.36 per cent. of Native
children inthe Police Zone do not attend school thnn it is for the fact that
99.66 per cent. of Europea~i children attend çchool. It would be equally
wrong to Say that, because there is no system of separate facilities in
Liberia or Ethiopia, no more than 23 per cent. of children of school age
attend school in Liberia 3,and no more than 5 percent. in Ethiopia '.
C. Separationby Tribe
14. Applicants' treatment of what they style "Separation by Tribe"
appears, on analysis, to be an attack on Respondent's policy of mother-
tongue instruction in so far as it affects the Native population groups of
South West Africa. In order to avoidrepetition and to facilitate its answer
to various allegations made by Applicants, and also to remove in advance
at least some of the wrong and misleading impressions which Applicants
create in the Reply either by mis-statements or omissions of matcrial fücts,
Respondent proposes first of al1to repeat, very briefly,some of the main
points made by itin dealing with its policy of mother-tongue instruction.
Thereafter Respondent will deal with the various allegations made by
Applicants.
15. The following is a summary of statements made by Respondent
in the Counter-Rlemorial regarding mother-tongue instruction :
(a) Reçpondent stated th& the-multiplicity of languages spoken in
the Territory called for a policy of differentiation not only as be-
tween the White, Coloured and Native groups, ". . . but asfar as
Vide inthisregard sec. E,Chap.XT,para.32 for an indication of the immensity
of the expenditureentailed in enforcinç educationintegrationinthe U.S.A.
Footnote 3.
' III' p445.
+ Ibid.pp. 445-446.
IV,PP. 374-383. SOUTH WEST AFRICA
practicable, also as between the various Native groups" l, and
added that, quite apart from practical considerations,
"... sound educational policy required that separate schoois
be provided for the children of the various Native groups in
whch they could be taught in the vernacular by teachers of
their own group within their own social and domestic milieu 2".
In regard to the merits of a system of mother-tongue instruction,
Respondent said, inter alia :
"Experience has shown that pupds absorb much more when
instruction is given them in their home language, than when it
is done in a language not their own, and, also, that children who
are first taught to read and write in their own language gene-
rally learn a foreign language more easily and quickly than
others 3."
Reference waç also made to a publication issued by the United
Nations Economic and Social Council in 1956in which it is stated
that educational experts-
". .. accept as axiomatic, on psychological, sociological and
educational grounds, that the best medium for teaching a child
is his mother tongue. Consequently, they recommend that
every effort should be made to provide education inthe mother
tongue to as late a stage of education as possible 4."
(b) Respondent referred to the report of the 1958Commission of In-
quiry into Non-European Education in South West Africa, in
which was recornmended-
". .. the use of the vernacular as medium of instruction in the
sub-standards (i.e .he first two years' schooling), and asfar
as possible aIso in Standards 1 and II
It was indicated in this regard that the. said standards are very
important as far as the Natives are concerned, since so rnany of
thern leave school after only a few years. It was therefore stated
that the courses in these standards aimed at making-
"... the largest possible number of children of school-going age
literate in their mother tongue and at providing them, at the
same time, with a knowledge of Afrikaans and English $".
In making its aforesaid reco~nmendation, the said Commission
mentioned that it had considered recommending the introduction
of the home language as a medium of instruction in the higher
prirnary standards, but that it had decided against it because of
the as yet insufficient development of the Native languages as
"Iiterary and written languages", and because the "necessa?
subject terminology for higher classes" still had to be developed .
1 III, p356.
a Ibid V.ide also p362.
4 Ibid.. p. 377. Applicants make no mention of, and cornpletely ignore, thisand
other sirnilaexpressions ofopinion as to thevalue of mother-tongue instruction.
' Ibid.,p. 358.
6 Ibid., p361 and vide Repovt oth6 Commissiow ofInqus'vy into hro?a-European
Edtrcation in South WestAfrica,Part 1 (1g58)p,p. 115-116.(Unpublished.) REJOINDER OF SOUTH AFRICA 79
It is clear that the Commission considered the introduction of
the mother tongue as a medium of instruction in the higher pri-
mary classes as an aim, or ideal, to be achieved in future: hence,
anter alia, its recommendation to establish a Bureau for Native
Languages l.
And Respondent gave expression to an even more distant aim,
or ideal, when it stated in the Counter-Memorial:
"Tt is the ultimate aim that the vernacular be used as the
medium of instruction in aii standards. But this wiiitake time,
and wili only become possible when the various Native languages
have been sufficiently developed to be used as teaching lan-
guages in aUthe standards,and when sufficient Native teachers
with post-blatriculation qualifications become available for the
teaching of secondary classes =."
Reçpondent also indicated that the further development of the
Native languages would require the CO-operation of the Native
groups concerned. It stated that active steps were beii~gtaken by
the Administration to effect the further development of these
languages as teaching languages, and to prepare suitable school
books in each of them, and concluded:
"In the final result, however, it will be for the groups them-
selves to contribute to the development of their languages to
meet al educational needs 3."
This statement rneans, and waç intended to mean, that whilst
the Administration will, through the means of the Bureau for
Native Languages, take the initiative and make eirery effort to
develop the Native languages into vehicles for more advanced
education than is possible at present, the outcome of the scheme
for the development of these languages will, in the final result,
depend on the CO-operation of the people most closely concerned,
viz., the Native groups themselves, for it is only with their \vil-
ling CO-operation that it wiU be possible to develop the languages
to the point where they can be used to meet al1needs, Le., education
at al1 leveb. In some instances the final stages of development
may come about only after responsibility for education has been
taken over as part of self-government by the particular Native
group, as is already the case with the people of the Transkei in
the Republic of South Africa 4.
(c) In regard to the Commission's aforementioned recommendation
as to the use of the mother tongue as medium in the lower primary
standards, Respondent stated:
"The recornmendation as to mothcr-tongue instruction did
not constitute an innovation of prin~iple as far as Native edu-
cation in the Territory was concerned, but endorsed a policy
and aim which had for a long time been pursued by the Ad-
ministration, namely, that instruction in the lower standards
l IIIp. 361.
Ibid. The above-quoted passage, as wiIlnppearhereafter, the basia£ most
of Applicants' attsck on Respondentpolicy of mother-tongue instruction.
Vbbid., p416.
VideII, p. 480 (para. 38), and also p25,.infra. SOUTH WEST AFRICA
should, as far as possible, be in the pupil's home language l."
Respondent pointed out that, whilçt various practical difficulties
had hampered development progress had nevertheless been made
in carrying out this yolicy, and it mentioned the fact that-
''[tlhus far ~do&a, ~uan~ama, Kuangali, Werero, Nama and
Tswana have achieved the status of school languages, but,
because of insufficient development as yet, mother-tongue in-
struction is generdp not yet feasibie beyond the Standard II
level in these languages 3".
(d) It was indicated, furthermore, that Respondent's aforesaid policy '
of mother-tongue instruction "was in accord with the views held
by the Permanent Mandates Commission" 4, and Respondent
referred, by way of illustration, to a report by one of the memberç
of the Commission and to certain discussions in the Commission 5.
(e) Finaliy, Respondent mentioned that there are at present practical
difficulties in the way of teaching every child in the Territory
through the medium of Iiishome language. It was pointed out
that such difficulties existed especidy in certain parts of the
Police Zone, the position being generally much easier in the
northern territories where large areas are inhabited by people
speaking the same language 6.In this regard Respondent indicated
that every effort is nevertheless made ". .. to ensure that as many
pupils as possible are taught througli the medium of their own lan-
page by teachers of the same language group" 6,and that-
"[~v]herever circumstances allow it to be done, the vernacular
is used as the sole medium of instruction in the sub-standards,
and as the most important medium in Standards 1 and II.
During the third and fourth years (i.e., Standards 1 and II),
an official language isgradually introduced as medium 7."
In dealjng with mekures taken by the authorities in the Territory
to accommodate children of a particular language group in a
school or claçs of their own, Respondent pointed out that difficulties
which arise in areas which are inhabited by members of more than
one language group are often aileviated by the fact that pupils
and teachers know more than one Native language In the rare
III, p.359.Applicnnts, it will be indicatedin para. 17 below. wrongly state
that Respondent's policy is a recent one, and they cre:rte the misleading impression
that Respondent also regards it asa new policy: vide IV, p. 375 and footnoteI.
III, pp. 360 and 415-jrG.
3 Ibid., p. 416.
Ibid.,p. 359.
IbidA .pplicants create the misleading impressithat Respondent's contention
is that the Commission approved of mother-tangue instructionat al1 Ievels (i.e.,
including the secondary schoot): videIV, p. 375 This was never Respondent's
contention: secondary education for Native pupils was not in issue in the days of
the Commission. Applicants also say (somewhat half-heartedly: vide IV, p. 378)
that the Commission approved rather of the study of the vernacular than of its use
asa medium of instruction. Respondent will demonstrstehelow (vidpara. 20) thnt
it approved of the use of the rnother tongueas medium of instruction.
III, p. 360.
Ibid In the higher primarystandards (i.e., Standards III-VI) an officia1language
isat present the sole medium of instruction(ibid.).
Ibid. p, 362. REJOIWDER OF SOUTH AFRICA 81
case ïvhere no Native language can be used as medium, an official
language is used l.
16. As already stated, Applicants' treatment of what they term
"Separation by Tribe" appears, on analysis, to be an attack on Re-
spondent's policy of mother-tongue instruction in so far as it affects
Native education in the Territory. This attack rests mainly on the fol-
lowing contentions regarding Respondent's policy:
(a) it "thwart[s] the social progress of 'Natives' by isolating them
from each other, and from the modern world" 3;
(b) it is "impractical and unworkable" 3;
(c) the policy "as currently practised and as intended to be applied"
has "at leaçt four major defects" ;
(d) the "evils" 5of mother-tongue instruction "in primary and secon-
dary schooIs in South West Africa" are "compounded in South
Africa at the university level by the evils of 'Bantu education' in
diQerent'mother tongues' " =.
Respondent now deals with the allegations made by Applicants in
support of their charges as summarized in (a) to (d) above.
1. THE CHARG EHAT THE POLICY "THWART[ S]E SOCIAL PROGRESS
OP THE 'NATIVES "'
17. In the Counter-Memorial Respondent showed that its policy of
mother-tongue instruction is, at least as far as instruction in the lower
primary standards is concerned, an old one 6, and that it was, also, in
accord with the vieïvs of the Permanent Mandates Commission 7.
In the Reply Applicants adopt an approach which amounts to the
follo\~ng:
They say, firstly, that Respondent's policy, as applied in the Territory,
is a recent one 8;and, secondly, that Respondent's reference to a report
by Mme WickseIl, a member of the Permanent Mandates Commission,
does not support a policy of mother-tongue instruction "at al11eveis"-a
contention which was never advanced by Respondent-and that liespon-
dent's references in the Counter-&ternorial to the Minutes of the Com-
mission do not support a policy of mother-tongtle instruction "as recently
introduced into the Territory" Io.Then, thirdIy-perhaps because they
realize that they cannot substantiate these statements, or show that
Respondent's policy as applied at present is unsound-Applicants
III, p. 362.
IV, p.374.
Ibid., p.378.
Ibid.p,. 380.
Ibid.p.. 382.
III, p. 359 anvidepara. rg(6).slipva.
Ibid.and vide para.15 (dl,supra.
Videreference to "the syster...which Respondent has tried in South Africa
and hasnow applied in South \jTest Africa" (IV, pp374-375). andto "develop-
ments" which are alleged to have taken place "since the dissolution of the League
of Nations. . .(ibid., p. 380).
Vide IV, p. 378, and III, p. 359
leIV, p. 378.82 SOUTH WEST AFRICA
proceed to attack what they describe as "the central, and most objection-
able feature, of the whole plan of cducational apartheid" l,and which
appears to be something which is not yet in existence, but which is, at
thiç stage, nothing more than a distant airn, or ideal, viz., "the ulti-
mate aim that the vernacuiar be uçcd as the medium of instruction .in
aElstandards" =.
18. Applicants make no atternptto substantiate their above-mentioned
allegation that Respondent's policy of mother-tongue instruction as now
applied in the Territory is a new one, and they faiI to deal specifically
with the statement in the Counter-Mernorial, noted abovc j,to the effect
that the recommendation of the 1958 Commission of Inquiry into non-
European Education in South West Africa regarding the use of the ver-
qacular as medium of instruction in the sub-standards and, as far as '
possible, also in Standards 1 and II,"did not constitute an innovation of
principle . . . but endorsed a policy and aim which had for a long time
been pursued by the Administration".
Respondent repeats itsstatement that the policy asat present apphed
in the Territory is not a new one. WhiIst more concerted efforts have
admittedly been made in recent years to ensure that in practice as rnany
young pupilç as posçiblc are taught through the medium of their home
language, and, also, to irnpress upon teachers the value of such teaching,
such efforts in no way amount to the introduction of a new policy. At
present, too, there is more officia1 action than in the past to develop
some of the Native languagesthrough the agency of a Bureau for Native
Languages +, but this is, in essence, nothing more than an officially or-
ganized scheme to carry on and further a process of language develop-
ment which was begun years ago and which, as has been pointed out *,
resulted in certain languages being developed to a stage where tliey could
be used as school languages.
19. Applicants Say, ai was indicated above that, the report by 31me
Wicksell, a rnember of the Permanent Rlandates Commission, to which
Respondent referred in the Counter-Mernorial on the question of mother-
tongue instruction, "cannot be reduced to authority in support of tribal
vernacular instruction at al1levels" ?.
Respondent never referred to the report as an "authority" for mother-
tongueinstruction "at al1Ievels" Without going into any detail, it may
be mentioned that there was, in the days of the Mandates Commission,
IV, p.375.
Ibid. and vide III, p. 361.
Vide para. 15 (c), supra and UIp.359. In addition to what has already been
said in this regard, Respondentpoinout that in1929 South Africa's reprcsentative
hir. Smit, informed the Permanent Mandates Commission that the Territorcy ould
not obtain trained teachers fromSouth Airica because"the medium of instruction
in the schoolswas the home language of theupils" and "the Union natives had no
knowledge of the native languages of South EVestAfrica"(P.M.C. M,in.. XV, p.
73.) In 1935 it was stated in Respondent's annual report that "[tlhe principie of
mother-tongue instructionis adhered to in al1 the schools for native scho. . ."
(U.G. 26-1935. p. 41(para. 294)).
+III, p. 361.
Ibid.. p.416 and videpara. 15 (b)supra.
Vide para, 18,supra.
'IV, p.378
Vide III, pp. 359-360 and aiso para15 (d), footnote 5, supra. REJOINDER OF SOUTH AFRICA 83
no secondary education for Natives in the Territory and that the question
of medium of instruction did not anse in regard to such education. It
is significant, furthermore, that whilçt Applicants go to the length of
diçputing a contention which was never advanced by Respondent, they
remain silent asto what u7asactually stated inthe report on the question
in issue, viz., that African scliools were often handicapped by n multi-
plicity of languages, sometimes even to the point where it became
"necessary ... to carry on instruction in s foreign language ..." l.This
indicates clearly, in Kespondent's submission, that the çaid report
favoured the vietv that the instruction of the young should not be in a
"foreign language", except as a last resort.
20. In regard to Respondent's quotations from the Minutes of tlie
Permanent Mandates Commission =,Appiicants argue that they "stand,
rather, for a different and laudable objective, that of 'moresystemafic
instratctionin the mother tongue' " 3. Applicants say, if Respondent
understands them correctlÿ, that the quotations show that the Com-
mission approved of the study of the Native languageç, rather than of
their use as media of instruction-even in the lower standards. In sup-
port of this argument they refer to the fact that Lord Lugard, who, in
1934, congratulated the Administration on its "encouragement of the
mother tongue" 4, statcd in his book, published in 1922 ', that "[nlo
greater benefit" could be conferred on the African "than the teaching of
Englisli as a universal medium". According to Applicants the inferencc
must therefore be drawn that Lord Lugard merely commended en-
couragementgiven to the stzidof the Native languages. In lxespondent's
submission, howevcr, the passage quoted by Applicants from Lord
Lugard's book isinconclusive, çince it is not clear that he had in mind
the question of the medium of instruction to be used in schools when he
used the words quotcd by Applicants.
But this argument need not be prolonged. The real question must
obviouçly be not so much what the quotations cited by Respondent in
itç Counter-Nemonal indicate, but rather what the views of the Com-
mission in fact were. Thiç appears clearly, in Respondent's submission,
from certain Minutes of the Commission regarding education in another
mandated territory, viz., New Guinea. It is reported that in 1932 hllle
Dannevig stated that she-
".. . wished to remove any misunderstanding tvhich might subsist
after the discussion inthe Commission the previouç year concerning
the teaching of English to the smaller children. It must not be
understood that the Commission in any way recommended such
teaching. On the contras., the policy advocated by the Mandates
Cmmission iw al1mandated territories was that the smaller childrcn
should receiveinslntctiolz soleiy i?the nativelongue.Thai, she not.4,
was also the view of the missions. There seemed to be a difference
ofopinion among the missions on this point 6." (Italics added.)
' 111P. 359.
Ibid., pp. 359-360
3 IV, p. 378.
4 III, p. 360.
5 Vid8 IV, p. 378. footnote 5.
6 P.M.C.,Min., XXII,p.67.84 SOUTH WEST AFRICA
A reference to the proceedings of the Commission in the previous year
shows that the Chairman of the Commission indicated that the missions
were "opposed to English asthe lmguage of instruction" land that the
reason therefor possibly was that it "helped their work to teach in the
vernaculars" l.
In Kespondent's submission it is clear from the aforegoing, and from
what is çtated in the Counter-Mernorial in this regard, that the Perma-
nent Mandates Commission approved of the principle of mother-tongue
instruction, at least in the early standards.
21. In this and in the next succeeding paragraphs Kespondent deals
with Applicants' charge concerning the alleged "central, aiid most objec-
tionable feature, of the whole plan of educational apartheid", but, before
discussing the various specific allegations made by Applicants in this
connection, Respondent makes the following generaI observations:
(a) In their lliemorials Applicants made no mention whatsoever of
any feature or detail of Respondent's policy of mother-tongue
instruction. The policy as actually applied atpresent was, therefore,
apparently not considered objectionable. This is probably also
the reason why Applicants in the Reply launch their major attack
not so much on the policy as it is appIied at present as on what
is, to their knowledge, only an "ultimate aim" of the policy.
Respondent has already shown that achievement of this aim,
or ideal, depends, inter dia, on the development of the languages
concerned and on the CO-operation and efforts of the people con-
cerned.
(b) Educationists hold the view that if a Native language is sufficiently
well developed and possesses the necessary reading niaterial to
serve as a teaching language at al1 levels, no valid objection can,
on educational grounds, be taken toits use in al1standards. Respon-
dent has already shown that educationalexperts "recomrnend that
every effort should be made to provide educatiori in the mother
tongue to as late a stage of education as possible" ", and attention
is now furthesmore drawii to the following statements made by
Unesco expertsin the same connection:
"On educational grounds we recommend that the use of the
mother tongue be extended to as late a stage incducation as
possible=."
"We must here lay down as ageneral principle what must have
already been made apparent by our general approach to the
problem: that in order to ease the burden on the child, the
rnother tongue should be used as the medium of instruction as
far up the educational ladder as the conditions referred to on
page 50 permit (inother words that the transfer to a second
language, if necessary, should be deferred to as late a stage as
possible); and that authoritieç should do everything in their
power to creafethe conditions which will make for an ever-
increasing extension of schooling in the mother tongue, and
P.M.C.Mzn., SX,p.z$.
Vide III, p. 3and IV, p.375.
5 III, p416 and videalso para.15 (b), supra.
4Ibid., p. 377.
) Unesco, The Use of Vetnacular Langrtages ir. Education (rg5347-48. REJOINDER OF SOUTH AFRICA 85
make the transition from mother tongue to second language
as smooth and as psychologically harmless as possible l."
"If the mother tongue is adequate in al1 respects to serve as
the vehicle of university and higher technical education, it
shodd be soused 2."
(cl Respondent fully appreciates that since the Native languages of
the Temtory largely have local currency only 3, as thorough a
knowledge as possible of English-being a world language-is
necessary, and, because of its wide use in South West Africa and
South Africa, also of Afrikaans. It follows that educational authori-
ties in the Territory will at al1 times have to direct their attention
to maintaining properly balanced ianguage curricula, having regard
to the fact that whilst the mother tongue constitutes the best
vehicle of instruction from an educational point of view, a sound
knowledge of English and Afrikaans is, at thesame time, essential
for other purposes, inter alia,to facilitate access to world culture and
knowledge.
22. In referring to Respondent's "ultimate aim that the vernacular be
used as the medium of instruction in al1standards" and to efforts which
are being made to develop the Native languages of the Territory, Appli-
cants say-in two footnotes 5-that although German needs no such
development as is contemplated in the case of tlie Native languages, it 1s
nevertheless not Respondent's present policy, nor stated to be a future
aim, to give German pupils al1 their instruction in German. Applicants
do not çay what inference they draw from this fact. It is difficult to
conceive that they are in anÿ way concerned about the education given
to German pupils, and the suggestion would accordingly seem to be that
Respondent's policy of mother-tongue instruction in the case of the
Native groups is not bona fide intended ta serve the best interests ofthese
groups. If so, the suggestion is denied. As has been indicatcd in the
Counter-Memorial 6,certain political considerations have played a part
in the case of the German section of the population. It was indicated 6,
too, that certain changes were brought about in 1960 as a result. of
recommendations made by an Education Commiçsion, and the positlon
will no doubt be reviewed in future in the light of al1 relevant circum-
stances. It cannot therefore be assumed that the position in regard to
German pupils will rernain asit is at present.
23. Various statements made by Applicants amount to a cornplaint
regarding what they term the "artificial development" of the Native
languages, and the "forced nature" of Respondent's sÿstem ofmother-
tongue instruction, These allegations, as wilIbe obvious from what has
Unesco, op.dit.p. 52.
Iba'd.,p69.para. 6.
Sorneof the languages spoken in Ovamboland and in theOkavango are also
spoken in Angola, while Silozi, spokein the Caprivi,isalso spoken in Northern
Rhodesia.
' IV, p. 375. (Italics added by Aplicants.)
' Ibid., footnote3 and 5.
= 111,p. 495.
' vide IV, pp. 375-376.
Ibid.p,.375.
Ibid.,p. 376.86 SOUTH WEST AFRICA
been stated above, are without substance. Respondent has clearly demon-
strated that it is in the best interests of the Native children themselves to
be taught through the medium of their own language. Ifit is a good thing
for a child to be taught inhis home language-as educationists say that
it is-it surely follows that the development of that language, and the
preparation of books and other teaching rnatter therein for the purposes
of such instruction, cannot be wrong .
The idea that Native (Afncan) languages should be developed to meet
new demands, incIuding their use as media of instruction, is not limited
to South Africa or South West Africa, as can be demonstrated from the
rnonograph of the cornmittee of Unesco experts to which reference was
made above l.Holding the view that "there is nothing in the structure
of any language which precludes it from becoming a vehicle of modern
civilization" 2,these experts deal with various aspects of language devel-
opment. In regard to the preparation of teaching material, they Say,
iqzierdia,that in a country mhich "contains a cornplex lingnistic situa-
tion" it may be found "highly desirable" to establish "a bureau or
institute, to supervise the choice of languages for regional use and the
preparation of scientifically prepared pedagogical material" 3. In con-
nection with vocabulary development, in contradistinction to spon-
taneous vocabulary growth, they Saythat-
"... in the event of new departures in education and culture,
including particularly the introduction of the mother tongue intothe
school for the first time or the attempt to develop scientific and
technical Iiterature and training in a Ianguage which has previously
been little used in this way, then the need arises for conscious
planning of vocabulary development '",
and in regard ta the organization of vocabdary development they say,
inte rlia:
" Where the problem isto develop a simple vocabulary for prirnary
school purposes, it probably can be done by a srnall committee of
experts acquainted with both the subject-matter and the native
culture, and advised by one or more linguistic scholars of a practical
turn of mind. Where the aim is to develop the use of a language for
technical purposes, a permanent commission or society would be in
order 5."
24. In dealing with the so-called "artificial development" of the
Native languages, Applicants rely on a view expressed by a former
i~ispector of schools, Mr. G. W. Sneesby 6.The relevant passage in the
Reply reads as follows:
"An ex-Inspector of Schools has queried whether it might not
have been better to have allowed the Bantu languages in South
Africa to develop in the natural course of events, rather than to
engineer an artificial development thereof necessary for such
1 Unesco, The US&of Ye~nacular Larzguages in Education (1~.5~),vide para.
2 1supva.
2 Ibid.p,.49.
3 Ibid.p..64.
Ibid.pp. 64-65.
5 Ibid., p. 66.
6 Vide IV,p. 375. REJOINDER OF SOUTH AFRICA 87
languages to be used as instructional medium for arithmetic, social
studies, environmental studies, and other subjects I."
What Applicants say in regard to Mr. Sneesby's query is apparently
their version of the following passage in Mr. Sneesby's article:
"A very great pïoblem arising from the use of the vernacular as
medium throughout the primary school course, quite apart from
its introduction as medium for the secondary schooi course, is the
lack of suitable terminologies for the various school subjects.
Departmental committees have been established for the various
languages and these committees have made considerable progress in
the compilation of the required terminologies for rnany of the school
subjects. Already a number of terminologies have been published in
Xhosa, Zulu and Sotho and some progress has also been made in
Tsonga and Venda. 'Clrhatdoes cause the observer some disquiet is
the feeling that the various languages are not really being allowed
to develop in the natural order of events pari passzt with the gradua1
development and advancing civilisation of the peoples concenied,
but that a kind of artificial forced devclopment of the languages is
taking place 2."
Respondent has already dealt with the general issue of the develop-
ment of Native languages and with the views of experts in regard there-
to 3, and Mr. Sneesby's view should be considered in the Light thereof.
Respondent says, furthemore, that it fully appreciates that there should
not be an unrealistic gap between the general level of development of a
people and new ideas or nations which it is sought to introduce. The
Unesco experts to whom reference has already been rnade refer to this
problem in a passage dealing witfi planned vocabulary development.
They Say, ilzter alia:
"Those who undertake such work should avoid the kind of wasted
efforts which inthe past has frequently resulted from an impractical
approach to vocabulary building and which produced tllousands of
words for notions which people were not discussing or which went
against the tendencies in popular usage 4."
In Respondent's submission the "disquiet[ing]" aspect referred to by
Mr. Sneesby is not a substantial one. Respondent's ediicational experts
are engaged on enlarging existing vocabularies to give expression to
ideas or notions lvhich corne into play in school courses, and in Re-
spondent's submission such language developrnent, if sufficiently practi-
cal and realistic, has great educational value.
25. In regard to their cornplaint of the "artificial development" of
Native languages,Applicants also rely on a statement in the report of the
Commission of Inquiry into the Teaching of the Official Languages and
IV, p. 375. After the wards "and other subjectsin the quotation abovethere
appears footnote 6,being a reference to SneesbyG. W., "The VernacuIar in Bantu
Education in the Union ofSouth Africa", OvevseaEducation. Vol. XXXIII, No. 2
(July 1961).p. 75.
Sneesby, G. W., "The Vernacular in Bantu Education in the Union ofSouth
Africa", 0;ersea EducationV ,ol. XXXIII, No. 2 (July rg6r), p. 80. Applicants
refer to p. 75 (IV, 375, footnote 6),but no such statementappears on that page.
Videpara. 2 ,supra.
Unesco. The Use ofVwnaculav Lang~ages in Education (1953) p~.65.88 SOUTH WEST AFRICA
the Use of the Mother Tongue as Xedium of Instruction in Transkeian
Primary Schools '.They Say that-
". ..the Transkei Commission was of the opinion 'that, although
education by the mother tongue was 'essential' in the early stages,
it waç improper as the medium in the secondary schools:
'If thisisever to come about, it must come about as a result of
a natural development. The inadequacy of the vocabulary, text
books, and reference books is a very real and important obstacle
in the way of its introduction as a medium of instruction in the
secondary school' 2."
Applicants' reference to the report of the Transkei Commission is no
doubt intended by thern to show that the Commissionrejected language
development of the kind fostered by Respondent and that it favoured
"natural development". The Commission did not reject such language
development. It is clesr frorn its report that the expression "natural
development" was not iritended to exclude such development. This
appears clesrly from the following paragraphs in the Commission's
report :
"The case therefore for education through the medium of the
mother tongue is so strong that it cannot be chailenged. Indeed, if
the mother totigue is not a suitable medium of instruction then it
must either be developed to become a çuitable medium or the people
must adopt another mother tongue. As the Commission found no
evidence to lead it to assume that the Xhosa people want to change
their mothcr tongue, the only way out istodevelop the mother tongue.
This development cannot be effectively done by a language com-
mittee creating new words unless the people whose language it is
want their language to grow and are not over criticalof new words
merely because they are strruige. If the people are firepared fo co-
operate with a language cornmitteeor lanpage academy suclt a corn
mittee or academy can filay a very useful $art in the develofinaentof
the language 3."
"The Commission wishes to point out that a Committee whose
activities are so firrnly linked with a State Department will always
be subject to some suspicion. Therefore the Commissioîz welcomes
thepending establisknze~t t/ an independent Xhosa Language Academy
that will be more representative +." (Italics added.)
Applicants' allegation that it was, in the opinion of the Transkei
Commission,"improper" to use the mother tongue açmedium ofinstruc-
tion in secondary standards creates s misleading impression by reason
of their fnilure to Say what the Commission's actual conclusion was.
This conclusion, reached on the evidence before the Commission, was
". ..that for several years to come no attempt must be made to intro-
1R.P. No. 2211963.The passage quoted by ilpplicants ispart of paraG (a)of
sec.E ofthe report (p17. 1stCol.).
IV,PP 375-376.
' R.P.Xo.z2/1~63.sec.E.p. 1S(para.7 (a)).
* Ibid.,p. 18(para.7 (f)). REJOINDER OF SOUTH AFRICA 89
duce the vemacular as a medium in the Secondary Schools" l,and it
shows that the Commission did not, as Applicants suggest, hold the
view that it was not proper, or that it would never be possible, to use
the vernacular as medium in secondary classes. It may be noted that this
conclusion immediately precedes the passage quoted by Applicants.
Deahg with the alleged "forced nature" of Respondent's policy of
motlier-tongue instruction, Applicants next cite the foilowing passage
from the report of the above-mentioned 1961 Education Panel 2:
"lt must also be accepted, howevei, just as there is no place for
trying to change cultures from outside, so there is none for trying
to preserve them from outside. All cultures must and do change and
if they did not they would ultimately perish through losing touck
with contemporary needs. The decision as to how fast and inwhat
direction a culture shd change, what itsattitude should be to other
languages for example, is a decision belonging to the bearers of the
culture alone. In Our opinion, therefore, White-inspired attempts to
insist upon thefireservation oj Bantu laquages are as .iizisfilacas
White attempts to eliwifiatesuch languages wodd be.The decision as
to how Bantu languages as a medium of culture and learning shd
develop belongs to the Bantu; or, to be more accurate, the decision
as to each particular language belongs to those whose language it is."
It willimmediately be observed that the passage in no way deals with
the merits or demerits of mother-tongue instruction. Apparently it is
quoted by Applicants as a basis for suggesting that Respondent should
not contribute to the preservation of the Native languages of the Terri-
tory by using them as media of instruction; that Respondent should ai-
Iow such languages, andthe culture of those who speak them, to perish if
they cannot, without Respundent's aid, cope with modern needs; and
that Respondent shouId leave al1decisions asto the use, preservation and
development of the indigenous languages to the groups concerned.
Respondent rejects al1suggestions of this kind, and denies that its obli-
gations under the Mandate in any way oblige it to act as Applicants seem
to suggest.
Applicants seern to suggest, furthermore, that Respondent is guilty of
-"attempts to insist upon the preservation of Bantu languages" when
the Bantu groups themselves are not in favour of their preservation.
The suggestion is completely unfounded. Quite apart from allthat has
been said above in regard to mother-tongue instruction and Respondent's
efforts to develop the Native languages, Respondent says that it is not
aware of asingle Native group in South West Africa which isin any way
desirous of abandoning, or in any other way losing, its own language.
In this context Respondent showed in the Counter-Mernorial that there
R.P. Ko. 22/1963, sec. E,p. 17 (para. 6 (a)). The Commission, it may be
pointed out, recommended thatthe motha tongue be used as medium through
Standard IV; that thnew medium (an officia1language) be introduced in respect of
some subjects in StandardV,and in respect of other subjects in Standard VI; and
that the mother tongue be usedasmedium in scripture rightthrough: ibid., p. 19
(para. 9(1)).
aIV, p. 376 and vide paraII,sufifa. (Italiadded by Applicants.)
Videthe italicized portion of the above-quotedpassage frorn Education for
South Africa:The 1961Education Panel, First Report (1963)) p. 56 and par11,
supra.90 SOUTH WEST AFRICA
has in recent years been a newinterest in African States in preserving and
reviving African culture, and in according such culture a proper place in
education at aiilevelsl.It cannot be assumed, as Applicants seern to do,
that similar sentiments do not, or not in future, operate in South
West Africa, and in aii the circumstances Respondent cannot counten-
anceanysuggestionwhicli involves that a language should be aliowed to
die if it cannot survive without Respondent's assistance. In thîs regard
Respondent draws attention to the following passage from a British
educational report which was quoted by a member of the Eiselen Corn-
mission :
"We need frolempltasizethe importance of beginlaingthe education
of Littlechildren in the medium of their mothertongue and with the
material of Native folk-lore, music, games and living tradition. We
feel italmost equally that long alter the pufiil has passed over the
medium of EmgLishand has set himself assidaously to stzcdyElaglish
literatzsre,and Eltropean art,music, history and thozkghtO/ alLkinds,
he should inthisalienfieldcontinuetodrawinspiration /rom hisNative
lzeritageof thought-in whatever forms, such as music, visual arts
and crafts, proverbial wisdom, historical traditions, or social insti-
tutions, the thought of his people has expressed itself in the past or
can be hoped to express itself in the future. We recognize that in
someareaswherelherearemany languagesawdfierhafismany cult~res,
it will be dzficzsltoapply this flrilaciple; bzrtsuch diflculties do not
Eessen ifsimportance. We believeit to be of thehighestimportance that
the jeelingO/ spiritara1continuity betweefione generationad anolher
shoplldbemai~~tai~aea d:dwesee nootherway thanlhis ofmaiataining
if. This, in our vim, is the answerto the doubt that is sometimesex-
PressedwheiherNative languagesand culturesare educationallyworlh
retaiîaing; wlzetherit would be better to let them die and concenlrale
on European culture.IIisnot so9nuchaqatestionof whether aparlictilar
language,or matrilineal inheritance of collection of proverbs, or a
set of folk idioms in music or the visual arts sho~ld be careftclly
firesmed !y Eurofiea~aservantsand handed over to the educationists
to be pre-digested into intellectual pabulum for the children in
school. The question, rather, is whether ilrthese things a +eopZecan
+reserveits contactwith the past; whetherits jurther growthwill con-
linrtelo benozwished/rom ifs ancientroofs.A cultzcreonce dead cannot
be resuscitated: letZLS bewareof lightly allowing a czdtureto die 2."
(Italics added.)
26. In speaking of the alIeged "forced nature" of Respondent'~
system of mother-tongue instruction, Applicants also Say that-
"Respondent has not consulted the 'Native' groups in the Terri-
tory with respect ta their wishes on vernacular instruction i.~al1
standards '" (italics added),
and then, apparently to support thisstatement,they add:
"Indeed, the present ChiefMinister ofthe Transkei has stated that
III, pp. 377-38r.
Para. 20of Prof. Murray'remarks, p. 176ofU.G. 53-1951,being a quotation
from Education forCitiaettship Africa(Col. 216.p.7).
IV. p. 376. REJOINDER OF SOUTH AFRICA g1
the Transkei would abolish Xhosa as medium of instruction after
Standard II l."
The latter statement is not directly relevant to-conditions in South
West Africa: further reference thereto is, however, made below 2. As far
as the Territory is concerned, it iscorrect that the Nativegroupshave not
yet been consulted in regard to the use of the vernacular as medium of
instruction in ail standards, i.e., including secondary standards. This
question, as has been pointed out 3,was not in issue when the Commission
of Inquiry into Non-European Education in South West Africa heard
evidence and brought out its report in 1958. The Commission consi-
dered introducing mrrther-tongue instruction throughout the primary
schooi course, but decided against it on practical grouiids and recom-
mended:
"(a) that only the home language be used as medium of instruction in
Sub. A and B ;
(b) thatthe home language should be used as far as is practicable also in
Stds. 1 and II as medium of instruction, but that at this stage Afri-
kaans should supplement them in order to surmount teclmical
problems ;
(c) that Afrikaans should provisionally be the medium of instruction in
al1 standards from Std. 111upwards 4."
In evidence before the Commission there were urgent requests from
Native parents that "their languages should have equal treatrnent with
the officia1languages" 5,and in regard tothe specificquestion of medium
of instruction the Commission reported:
"AUwere agreed that the home language onlp should provisionally
be used in the beginners classes and that Afrikaans should be the
medium in the higher classes 'j."
Respondent has already indicated that the use of the vernacular as
medium of instruction in secondary standards is, at this stage,no more
than a distant ideal, the acliievement of whicli will, inter dia,depend on
the CO-operationof the Native groups concerned in developing the Native
languages to become fit vehicles for such instruction. Respondent states,
furthermore, that no final decision as to the use of the vemacular at
secondary level will be taken until after due consultation with allthose
who have an interest in Native education, including parent commu-
nities, school boards and cornmittees, teachers' organizations, and the
missions.
27. The charge is also made that the use of the mother tongue at al1
levels lowers the standard of the officia1languages, and that this is a
serious matter particularly as far as English is concemed a.
In this connection Applicants refer, firstly, to the followingstatements
IV, p. 376.
Vide paras. 30 and 31.infra.
Vide para. 15 (b). supva. and Report of the Comnrission of InquEryinfo Non-
European Education inSmth West Afvica(1958),Part 1,para. B. 124,pp. 115-116.
+ Report of ihs CommissionofInquiry into Non-European Educadionin Sozrth West
Africa (1958),Part 1, p.116 (para. B. 124)
' Ibid., p. 80(para.B. 106 (6)).
Ibid., p. 81.
Vide para. 15 (b), supra.
Vide IV, pp. 376-377.92 SOUTH WEST AFRIC.4
in an article by J. W. Nacqiiarrie, who is described as an "authority on
'Bantu Education' " :
"The introduction of a third language may well prove to be the
most calamitous blow struck at Rantu education ...
It will be seen, in brief, that the language provisaions~ninisterto the
twin gods of apartheid and tribalization. They alm at producing an
African tolerably fluent in his own language, if he stays long enough
at school, and able to cominunicate to a strictly limiteddegreein the
two officia1languages with officials and other casual contacts l."
Mr. hlacquarrie's article l,as will be obvious even to the cursory reader,
is couched in terms einotional and exaggerated to a degree which makes
proper assessrnent impossible, and the result is, to Say the least, a sad
lack of objectivity in his whole approach.
It should be noted at the outset that although Applicants apparently
refer to the passages quoted by them as dealing with mother-tongue
instruction, this is not the case. They deal rnerely ~4th the "introduction
of a third language" which, it is alleged, "may well prove to be the most
calamitous blow struck at Bantu education". It appears from the article
that the third language to which 3lr. Nacquame refers iç the second
officia1language which, as appears from what the author himself says in
his article 3,isus~dly Ajriknans. Mr. Macquame's complaint isthat the
introduction of the second officia1language leaves less time for the study
of the firstofficiallanguagc 4.Applicants are, therefore, in efïect complain-
ing of the introduction of Afrikaans as a third language besideç a Native
language and English-a complaint which can hardly be reconcilcd with
their alleged concern about the standard of Afrikaans.
The first sentence of the second part of the quofation contnins a state-
ment unworthy of serious reply.
Respondent also rejects the statement that-
"[the Ianguage provisions] aim at producing an African tolerably
fluent in his own language, if he stays long enough at school, and
able to communicate to a strictly lirnited degree in the two officia1
languages xvith officials and other casual contacts +".
This is -utrue. Respondent's aim is that Xative pupils should have a
thorough knomledge of their own language. Native languagcs are used as
media of instruction in primary standards, and are furthermore studied as
subjects. Equally unfair and unwarranted is Mr. hlacquarrie's assump-
tion that, because Afrikaans has been introduced for study as second
officia1language, Respondent must be taken to aim at nothing higher
than that Native pupils should be able "to communicate to a strictly
limited degree in the two officia1 languages with officials and other
casual contacts".
Applicants link this last statement by Mr. Macquarrie with an allega-.
tion previously made by them in connection with a passage in the
lIV, p.376.
Macquarrie, J. W., "The New Order in Bantu Education", A fracaSouth, Vol. 1,
No. I(0ct.-Dec. 1956).pp.32-42.
Ibid.,pp. 40 and 41.
+Ibid.p ,.41.?.Ir. JIacquarrie calsnglish the lingua frairca of South Africa's
Bantu groups. This statement is certainiy not true for al1partofSouth Africa.
Itwouldbe quite untrue ofSouth West Africa.
Vide Chap. II. para. 19. supra. REJOINÜEK OF SOUTH AFRICA . 93
report of the Eiselen Commission. The paragraph in the report-of
which paragraph Applicants quote only part-reads as follows:
" We also wish to point out that witnesses, particularly the Bantu,
laid great stress on the need to teach both officiallanguages. We are
therefore of the opinion that provision should be made for instruction
in both these languages even in the lower primary school, and this
should be done in such sway that the Bantu child will be able to
find his way in European communities; to follow oral or written
instructions; and to carry on a simple conversation with Europeans
about his work and other subjects of cornmon interest l."
It isquite clear that the Eiselen Commission referred to the minimum
education it thought should be possessed by those Native pupils who did
not proceed beyond the lower primary school 2. The paragraph does not
deal with education beyond that level, i.e., four years at school. This is
apparent not only from the terms of the paragraph itself, but also from
another passage in the Commission's report to which Applicants them-
selves refer 3,in which the Commisçion recommcnded that provision be
made for the study of the officia1langiiages to serve, inter alia, "as a
means of securing contact with the knowledge of the wider world" 4.The
latter recommendation clearly envisages a more profound knowledge of
the officia1languages than was referred to in the case of pupils who leave
school during or at the end of the lower primary course (Le., four years'
schooling) .
28. Applicants make the following further allegation in regard to
mother-tongue instruction in secondary standards and its alleged effect
on the study of English:
"A natural result of mother-tongue instruction at secondary levels
is the decline of English. Thus, the 'Native' inhabitants of the
Territory are becoming ever more isolated frorn the world which
initially committed them to the care of Respondent. If Afrikaans,
and, a fortiori, English, are taught as foreign languages to South
West African children, the effects will be far-reaching 3."
The alleged increasing isolation of the Native inhabitants of the Terri-
tory from the rest of the world is stated to be the result of mother-tongue
instruction "at secondary levels". This is, to Say the least, a curious state-
ment, for, to the knowledge of Respondent, there is no mother-tongue
instruction at secondary Ievels in South West Africa. In fact, as has been
shown 5,the mother tongue is at present not used as medium in Native
U.G. 53-1951,p. 146(para. 924)and videChap. II, para.19, supra.
In dealjng with the curriculum of the lower primary school, Prof. Murray, a
member ofthe Commission, quoted the following passage from the 1Meworandum
on Educatio?zalPolicy inNigeria, 1945:
"The essential aims of the curricuIurn of the junior primary school would
comprise religious instruction,the study of the vernacular, a cammand of
arithmeticsufficient for the needsf everyday life, ability to read, write and
speak simple Engljsh and the arousing of an intelligent intereinthe pupil's
environment ... The Cornmittee aould bear in mind that a four-year course
can only cover the bare essentials and would be enjoined to ensure that the
syllabus is not over-weighted."(U.G. 53-1951,p. 172 (para.16).)
' IV, p. 377.
Vide U.G. 53-1951, p. 132 (para. 776 {t)).
III,p. 361 and uidepara. 15 (c),sz~pra. SOUTH WEST AFRICA
94
schools beyond Standard II, Savethat it içsoused forreligious instruction
up to Standard VI in the northern tcrritories. Inasrnucli as Applicants
are, in effect, attributing results to a system which is not in operation,
thcre is no substance in their sllegation that the Native inhabitants of the
Territory "are becoming ever more isolated from tlie world". And for
the same reason there is no factusl basis for their predictioii as to "far-
reaching" effects inthe future.
As far as the future is concerned, Respondent has already made it
clear that it is fully aware of the value of English and Afrikaans to the
Native inhabitants of the Territory, and of the necessity of giving Native
pupils thorough instmction therein '.
Applicants, it will be observed, cornplain of the future effects of
teaching "Afrikaans, and, a fortiori,English" as "foreign languages" to
Native pupils. Since Native pupils have home Ianguages other than
English and Afrikaans, it isnot appreciated how these two languages
can be taught to them as anything but "foreign languagesH-in the same
way as English is taught as a "foreign language" to an Afrikaans-
speaking pupil. Applicants' cornplaint is, indeed, an incomprehensible one.
Taken literally, it seems to involve the proposition that steps should be
taken to ensure that EngLish or Afrikaans becomes the mother tongue of
al1 Natives in the Territory-a proposition which Kespondent rejects as
involving nothing less than the disappearance of the Native languages.
But perhaps Applicants intend to Say no more than that English should
be uçed as medium because instruction in any otlier language causes
"the decline of English". If this is what Applicants intend, Respondent
says, firstly, that due regard should at al1times be had to the generally
admitted value of rriother-tongue instruction; that the standard of
English attained is only one factor-albeit an important factor-of a
school education; and, alço, that it is wrong to assume that English can
only be taught (and learnt) properly if it iç alço usecl :LS a medium of
instruction in other subjects.
In regard to the last-mentioned point, viz., the use of English as a
medium of instruction witli a view to raising the standard of English,
Respondent refers to the following passages from a paragraph in the
Report of the Commonwealth Conferenceon the Teaching O/ Englisla as a
Second Language, held at Makerere College, Uganda, in 1961 :
"(a) Although one of the reasons for using English as a medium is
the advantage it provides in teaching the language, its em-
ployment asa medium is uneconornical of time and effort if it is
regarded as a substitute for welI planned instruction in English
as a subject."
"(c) The use of English as a medium requires, in the teacher,
greater control over the language, greater sbility to operate
~vithinthe range of language available to the pupils, and more
teaching skill than is required to teach the language as a
subject, especially at the early stages. If he is not thoroughly
at home in the subject he iç teaching through English, he may
be pressed to rely more than is desirable on his textbook,
III, pp364-365and videpara.21 (c),supra.
2 Vide"the effects will be far-reachinIV,p. 377. REJOINDER OF SOUTH AFRICA 95
with the result that the English the pupils are taught will
become bookish and çtilted l."
It may be noted in this regard that thc Transkei Commiçsion of
Inquiry, which is referred to by Applicantç in the Reply 2,rejected what
it described as "the educationally unsound and mistsken notion, that a
foreign language can only be taught thoroughly if il is also used as a
medium of instruction" 3, and that it also said-
"[ilfthe knowledge of a foreign language must improve then it is
educationally sounder to increase the time allocated to the teaching
of the language rather than to resort to measures that may haw
the desired effect in so far as the knowledge of the language is
concerned, but may have other undesirable results ... 4".
29. In support of their aforementioned statement that "CiIfAfrikaanç,
and, a fortiori,English, are taught as foreign languages to South West
African children, the effectç will be far-reaching", Applicants quote the
following passage, which is alleged to have bcen made by a petitioner
before the Special Committee on Apartheid:
"This means that the standard of Engliçh and Afrikaans remains
very loiv making it even more difficult for the African to fit into an
economy run by CVhiteswho do not speak tribal languages, and even
to communicate with Africans of other tribes 5."
Respondent says the folowing in regard to this quotation:
Firstly: The words ascribed to the petitioner are apparently not the
words actually used by him. The passage in the document from ïvhich
Applicants quote does not appear in the officia1record of the oral pro-
ceedings before the Committee concerned. The only passage in this record
ïvhich resembies the one quoted by Applicants reads as follows:
"In the prirnary schools, instruction was given in the language of
the tribe; the non-White child therefore had a very inadequate
knowledge of English or Afrikaans, which greatly impeded his ad-
aptation to modern life and prevented him from communicating
with W'hitcsand with members of other tribeç 6."
Secondly: The petitioner spoke of what were, according to him, coii-
ditions in South Africa. He made no mention of South West Africa.
Thirdly: The prtitioner made no mention ofthe fact that English and
Afrikaans are taught as subjects from an early stage in al1Native schools.
and created the false impression that Native pupils arc left to themselves
to pick up such English and Afrikaans as they can so as to be able to
adapt themselves "to modern life", or to communicate with imites, or
other Natives. He also failed to make any mention of the generally
admitted value of mother-tongue instruction.
FourMy: If the aforesaid officia1record is to be trusted, the petitioner
isa dishonest man, and thoroughly unreliable. According to this record
Report ofthe Coinmonwealth Conference on the Teachiof Englishas aSecond
Language. heldat Makercre College, Uganda(I to13 Jan.1g61)p,. 23(para. 65(1)
(a) and fc)).
2 IV,p. 376*footnote I.
R.P.No. 2211963s ,ecE, p.16 (para.5 (b)).
+ Ibld.. pp16-17 (para. 5 (dl).
IV, p.377.
U.N. DOC. A/AC. I1515R.SI, 22Aug. 1963,p. IO.g6 SOUTH WEST AFRICA
he made certain statements which are palpably lalse, and which the
Applicants would gladly have incorporated in their Reply ifthey had
thought that there was any chance of their being beiieved. Thus, accord-
ing to the record the petitioner made the foHowing completely false
statement :
"African chiidren were educated only in tribal life andtraditions,
with deliberate exclusion of the cultural heritage and the scientific
and technological discovenes of the Whites ...'"
In Respondent's submission, the petitioner on whom Applicants rely
can in no way be regarded as authority for the above-mentioned state-
ment in support of which he is quoted by them. Nor can what he is quoted
as having said be accepted as authority for the following statement by
Applicants, which foliows immediately upon the said quotation, viz.:
"This is hardly promotion 'tothe utmost', or otherwise, of the
social progress of the inhabitants. Not only wiH children be 'retri-
halized', not only will they be cut off froni the outside world, but
they wi11be divided from one another 2."
It is not clear what Applicants wish the word "retriba1ize"-the
inverted commas are theirs-to mean, Save that the word would seem to
involve a contemplation that children are not "tribalized" at present. In
any event, if Applicants intend to suggest that Native children are, or
will be, cut off from modern education, the suggestion is denied.
In this same connection Applicants make the following novel and
startling statement :"A poIicy of division such as this naturally sapç the
energies and the powers of 'Native' opposition to the policies of the
Respondent" 3.The question immediately arises why such an accusation
should merit nothing more than a bald statement in a footnote. The
statement is a shameless and untnie one, and isrejected by Respondent '.
30. In support of what they predict \vil1be the result of Respondent's
policy of mother-tongue instruction, i.e., isolation from the "outside
world" and "from one another", AppIicants also quote what purports
to be anewspaper version of a statement made by Mr. hlatanzima, now
Chief Rlinister of the Transkei. Applicants quote him as saying that-
". . . although Xhosa would be the official language of the Transkei,
it would be abolishedas a medium of instruction after Standard Two;
the Government's insistence on Xhosa as a medium of instruction
was 'a sore point with the people' (Johannesburg Star, air mail
edition, 27 Janunry 1962) A.fricans do not want to be linguistically
isolated from one another, let alone from the world 2."
Applicants clearly wish it to be inferred that &Ir.Matanzima regarded
mother-tongue instruction above Standard II as a factor which isolated
Natives frorn one another and from the world; and, secondly, that he
actually said "Africans do not want to be linguistically isolated from
U.N. Doc. AIAC. Ii5/SR. 21. 22 Aug. 1963,p. IO,
Ibid.vide.footnote3.
It seems likely that Applicants were inspired tmrikc theallegation by the
aforementioned petitionervho, after stating that "lifrican children were educated
onlyin triballife antraditions", went onto Say,i?rferaliathat"Such an educa-
tion ...prevent[ed] the non-Whites from uniting", U.N. Doc. A/AC. 1r5jSR. 21.
22 Aug. 1963,p. IO. REJOINDER OF SOUTH AFRICA 97
one another, let alone from the world". Respondent points out that a
reference to the ncwspaper report referred to in the quotation clearly
establishes the following :
Firstly: Rlr.Matanzima never said "Africans do not waiit to belinguisti-
cally isolated from one another, let alone from the ~vorld". Nor did he Say
anything remotely similar. In fact, he never referred to "Africans", or to
"isolation" in any form.
Secondly : Mr. hlatanzima said, according to the report, that ". . . there
were neither text books nor terminology in Xhosa for it to be the lan-
guage medium above Standard II" l.He never said, or implied, that to
use Xhosa as medium of instruction would isolate the Xhosa from the
world or from one another.
Thirdly: He said, according to the report, that "Children would be
taught in English-or in Afrikaans if they understood it hetterJ'l.This
shows, it is submitted, that Mr. Matanzima did not think tllat Xhosa
children would be "cut off from the outside worId" if tliey received
their education through the medium of Afrikaans and studied English as
a subject (i.e., as a "foreign language") =.
Foztrthly: As to the staternent that the Government's insistence on
Xhosa being the medium of instruction was "a sore point with the people",
Respondent points out that a Commission of Inquiry was appointed by
it in 1962 to inquire, inter dia, into the use of the mother tongue as
medium of instruction in the schools of the Transkei, and that this Com-
mission reported in October 1963 3.
Respondent points out, furthermore, that recently Mr. Matanzima,
refemng to the decision taken by the Transkei Government in 1964 to
introduce English or Afrikaans gradually as medium of instruction from
Standard III, and to other educational matters in the Transkei, is
reported to have stated, interdia :
"1also wish to reaffirm this Government's stand, namely, that we
believe in rnother-tongue education as the soundest educational
policy. It is only because Xhosa is not sufficiently developed as a
language to use as a medium for study in higher educational fields,
that we of necessity must-for higher study purposes-switch over
to one or other of the European languages.
Oztrideal R,owever,is $0 developXhosa fosuch an extent lhat itwilE
eventually be able to take its $laceamong the langliagesof theworld,
also as a snliabEemedit~wz for aEkhigheredttcation. Then ivewill have
fullmother-tongue education, not only upto Standards three or five
but right through to the end 4." (Italics added.)
31. Applicants conclude the paragraph in ïvhich they refer to Mr.
Matanzima ~4th the following words:
"C. W. de Kiewiet has identified the central problem when he
stated that 'the whole myth of a separate native culture collapses
when it isrecognized that, for the African, progress and emancipation
1 The Star(Au Edition),27 Jan.1962.
Vide Applicsnts' remarks atIV, p. 377.
3 The report of the Commission has been referredto supra; vide paras. 25
and 28.
Daily Disputch, 26 June1964, p.II. SOUTH WEST AFRICA
9s
depend upon an escapefromthetrz'be and a deeperentvy inlo thelife of
the West' l." (Italics added by Applicants.)
In the context in which it appears, this staternent isa puzzling one: The
"central problem" of what has been "identified"? The suggestion seerns
to be that Respondent holds the view (which is intruth a "mytk") that
there is a "separate Native culture" and that Natives should, therefore,
be cut off from the advalitages of modern education. If that is what
Applicants intend to suggcst, the suggestion is rejected. Respondent
believes that there are-and has never heard it said that there are not-
difierencesbetween the cultures ofthe West and of the indigenousAfrican.
It is well knowri, too, that differences in the culture of peoples are re-
flected in their education and educational systerns 2,and whilst Respon-
dent believes that a nation's, or group'ç, culture should not be destroyed,
or allowed to die, without good reason, it certainly does not hold the view
that cultural groups should remain, or be kept, at their traditional level
of development and be denied the advantages of modern education.
Dr. de Kiewiet's view seems to be different. To him the indigenous nations
of Africa have no cultures of their own, or, in any event, no cultures
worth preserving, not even as a foundation on which modern develop-
ment can be based. As against the White man, he says, the African-
". .. has nothing to resuscitate in protest ... except tribalism, no
tradition to invoke higher or more dignified than the cruel sanctions
of witchcraft and barbarism 3".
That Applicants should now endorse such views relating to hfricans is
nothing less than astounding-views which are, also, in conflict with
views expressed, or approved of, by various African States, including
Applicants, on another occasion 4.
32.Applicants follow up their puzzling reference to de Kiewiet with
a statement ~vhichis even more obscure. They say that Respondent "in
effect concedes this evil of itplan" 5,but theydo not say what the "evil"
or the "plan" is. The concession isalIeged to have been na deby Re-
spondent in quoting, in the Counter-Mernorial, a recommendation of the
Eiselen Commission advocating the "study of the two oficial lang.tdages
. ..as a means of communication with Europeans, as a help in economic
rnatters, and as ameans of seczsringcontact weiitthe rinowledge ofthewider
-siorld (Italics added by Applicants.)
It is clear that the Eiselen Commission thought that a knowledge of
the officia1languages was necessary "as a means of securing contactwith
the knowledge of the wider world". There is no evil in thiç view, which
is shared by Respondent. The charge that Respondent is conceding the
"evil" of "its plan" by citing this view is one which Respondent cannot
fathom.
In so far as it rnay be snggested that Respondent intends, by the use
of Native languages as media of instruction, to hamper or prevent prowess
in Engliçh and Afrikaans, the suggestion is denied. Without going into
1IV, p.377. The referenceis tde Kiewiet, C.W., TlzeAnatomy ofSouth African
Màsevy (1956)p..54.
2 Vide III,pp. 375-382.
De Kiewiet, op. cit.pp. 54-55.
VideIII, pp. 377-382.
' IV,p. 377. REJOINDER OF SOUTH AFRICA 99
any detail on this aspect, Respondent points to the factl that Afrikaans
was introduced as a subject in the Native schools of the Transkei after
the Bantu Education Act came into operation, and that the above-
mentioned Transkei Commission found-
". ..that the language syllabuses in Afrikaans as in English compare
most favourably with those of the Provinces of the Kepublic and
vith tllat of the Department of Education, Arts and Science *".
The Commission aiso made mention of the "excellent guide to the
teaching of English published by the Department" 3.
Applicants conclude their attack on Respondent's aforementioned
"ultimate aim" to have rnother-tongue instruction in al1standards of
Native schools by alleging that-
"Respondent's avowed aim of making South West African tribal
tongues the medium of instruction at ail lcvels, while retaining the
teacliing of English and Afrikaans as 'foreign' languages,* is in
direct contradiction to the purpose of the Mandate 4."
Respondent hnç already dealt witli the matters raised in this allegation,
and once ngain denies thnt it is actingin violation of its obligations under
the Mandate. The Mandate does not require that Englisll be used as
medium of instruction. Thc same applies to Afrikaans. There is no basis
for the suggestion that aperson can be taught to stand by himself "under
the strenuous conditions of the modern world" if he studies through the
medium of English or Afrikaans, but not if he studies these languages as
subjects.
II. THEALLEGATI OHNAT RESPONDENT P'SLIC Ys
"IMPRACTIC ANDLUXWORKABLE"
33. Applicants' general allegation that Respondent 's policy of mother-
tongue instruction is "impractical and unworkable" is denied.
It appears, on analysis of Applicants' cornplaint, that they do little
more than refer to what Respondent itself stated in jts Counter-Xemorial
concerning practical difficulties which are still encountered in its system
of rnother-tongue instniction G,and to repeat a distortion in regard to
Respondent's efforts at dcveloping the Native languages of the Territory '.
l Vide also para45, infra.
R.P. 2211963,p. 11(para. 13(a)).
Ibid.p. 5 (paril 13(m)).
IV,p. 378 In their footnote* Applicants refer to tfact that the Odendaal
Commission refcrs to English or Afrikaans as a "foreign" language (R.P. No.
1zlrg64, p.261 (para. logo)). There is nothing strange about the use of the word in
this context:it is so used in contradistinctito "home Ianguage". or "mother
tongue". It is-tomention only two examples-repeatedlyso used in the report of
the Transkei Commission to describe English or Afrikaans; it is also often so used
to describe a languagc other than the vernacular in Unesco: TheofsV'e'cvnacular
La?zguagesin Educafion (1953).
Vide para. 15(e), supra.
6 Vide III, pp.358:362 and Chap. V, pp. 414-416in regard to the system of
mother-tongue instruction and language dificultiesgenerdy. Applicants &O
refer to a passage in the Odendaal Commission's report which adds nothing to the
matter.
' IV,p. 380 and uidualso para. 15 (b), supra.IO0 SOUTH WEST AFRICA
Respondent does not propose to deal again wit h the aforementioned
practical difficulties. ft wvdl,in the paragraphs which foilow below, (a)
point out that such difficulties inevitably occur in multi-lingual countries
where a system of mother-tongue instruction is followed; (b) analyse
briefly Applicants' basic approach to the rnatter in issue; (c) illustrate
that Applicants, whilst eager to exaggerate the difficultiesreferred to by
Kespondent, remain silent about certain factors mentioned by Respon-
dent, and about the advantages ofthe system; and (d)show, by reference
to what hüs already been said, that Applicants distort what Respondent
stated in its Counter-Iilemorial in regard to the development of Native
languages.
(a) It is hardy necessary to state that a system of mother-tongue
instruction produces practical difficulties in multi-lingual countnes,
and especidy where there is a multiplicity of languages in any
given area. Where it is impracticable to give every child an educa-
tion through his mother tongue, measures must necessarily be
taken which will serve the best interests of the greatest number
ofpupils.
Kespondent considers that its approach to the matter is, in ail
the circumstances, an eminently reasonable one,and that it is more-
over, in accord with the views of educational experts in this regard.
Thus, in a book already referred to, a cornmittee of Unesco es-
perts say the followingon the subject :
"If a givcn locality has a variety of languages it may be
difficult to provide schooUng in each mother tongue simply
because there are too few students speaking certain of the
languages. In such cases itmajr be necessary to select one of the
languages as the medium of instruction, at the cost of using a
language other than the mother tongue of some ofthe students.
Before accepting this necessity, the school shouId seek wayç
and means to arrange instruction groups by mother tongue. if
mixed groups are unavoidable, instruction should be in the
language which gives the lanst hardship ts the bulk of the
pupils, and special help should be given those who do not
speak the language ofinstruction l."
(b) Applicants' present cornplaint is not that the mother tongue will,
at some tirne in the future, be used in secondary standards. They
attack mother-tongue instruction even in the lower primary
standards because, as appears from the Counter-Mernorial, not ail
Native children are being taught through the medium of their own
'Unesco. The Use of Vernacnlay Langztages in Education (19j3), p. 51. Vide
also the following passagein an article by J. 13ert-y.in whiisstatedthat common
features in Bantu languages result in the Bantu quickly learning their neighbours'
language :
"Speakers of Banto languages .. .share many similar morphemic and
phonnesthetic habits . . Under these conditions language learning is not difii-
cult. l'he African asa rule acquires his neighbours' languagepainlesand in a
surprisingly short time. And once ücquired, this second language serves
hirn in away that English Iiever will: Iexically and syntacticalit,is bylar
the better equipped of the two to express the needs and desires of his daily
life..." (African Languages and English ittEdutaiion: Educational Studies
and Documents, June 1953, Xo. II. Unesco Education Clearing House. p. 4n.3 REJOINDER OF SOUTH AFRICA IO1
language '.Applicants' criticism on this basis seems to involve an ap
proach on their part that if ali children cannot receive the benefits
ofmother-tongue instruction, no children need receive such benefits,
and that al1 of them might as weii be taught through the medium
of English or Afrikaans. Respondent rejects such an approach, and
says that practical difficulties which prevent a comparatively srnaii
number of Native children from being instructed through their
mother tongue cannot validly be advanced as an excuse for de-
priving al1children of the benefits of mother-tongue instruction.
Furthermore, basic to Applicants' approach to the whole matter
is, as has already been shown =,the notion thatthe Native languages
are not worthy of preservation or development. As indicated above2,
Respondent rejects this view.
(c) Applicants, noting, as Respondent itself states in the Counter-
Memorial 3, thnt only some (the major) Native languages have been
deveIoped as school la~lguagcs, and that instruction through them
is at present not yet ferisiblcbeyond theStandard II level, state-no
doubt with a view to being sarcastic-that "[als a result, the inhabi-
tants are being held in suspension while their languages are being
'developed' into vehicles suitable for general communication" l.
What Applicants do not appreciate is that the children of the
language groups concemed are being taught through the language
they know best-the medium which experts consider best on
educational, sociological and psychological grounds 4.Furthermore,
the fact that these languages are being further developed for
instruction in higher standards at a later stage derogates nothing
frorn the fact that pupils are at present being educated through
their mother tongue at those levels where the language is asuitable
medium, and through tlie medium of Afrikaans or English at
higher levels. And as to those pupils ~vho are stated to be held
,'in suspension" in language groups to which they do not naturaliy
belong 5, Applicants exaggerate the position, and they also mis-
represent certain facts, as will appear from a reference to the facts
as stated in the Counter-Mernorial 6. Respondent does not intend
going into any detail in thiç connection, and briefly points to the
following merely to illustrate how Applicants create warped images
in their treatment of the matter:
(i) They place unjuçtified emphasis on situations which affect
only small, sometimes very small, nurnbers. They Say, e.g.,
that "various other children, not Tswana, are being instructed
in Tswana" 7, when they know that Tswana is the medium
of instruction in only two schools in the whole Territory,
with the result that very few non-Tswana children are affected S.
(ii) They rnake allegations which are not true, or which are so
l Vide IV, pp. 379-379.
2 Videparas. 25 and gr, supra.
m. p.416.
Ibid., p. 377, anvide para.21,supra.
IV, p. 379; videalso p. 381,where Applicants deal nith the same matter in
discussing their alleged fourth defect of mother-tongue instruction.
" Vide III, pp. 356.358-363.414-416, uidealso II, pp. 315.318 and 323.
' IV. P.-,-9.
a III, p363. SOUTH WEST AFRIC.4
forniulated that they inevitably create a false impression. So,
e.g., they state that children whose mother tongue is Sikololo
or Silozi (the general language of the Eastern Caprivi) ' are
taught in Kuangali, Ndonga and other languages of the peoples
of South West Africa =,when the fact is that Silozi is the on1
Native lvnguage used asschool medium in the Eastern Caprivi
Djiriku children, they Say 2, are instructed in Kuangali, etc.,
whenthe fact is that Kuangali "was, and stiil is,generally used by
the Kuüngari ...andDjiriku with localdislectical versions" ;and
it istotally wrong to create the impression that children of the
Okavango or of Ovamboland are taught through the medium of
Herero, Namaor Tswana 6.Kuangali, it rnay be mentioned, was
developedas a Eing~cafralzcfaor Okavangoçchooisby the mission-
aries.
Respondent points out, furthermore, that Applicants make no
mention of the fact that in areas which are occupied by members
of more than one linguistic group, pupils often understand the
language of CO-pupilswho belong to a different language group,
and that teachers, too, often have a sufficient knowledge of the
languages involved to be able to explain lessons to al1 the pupils
in a class in their own language. Respondent referred to this fact
in its Counter-Memorial7, but Applicants omit al1 reference thereto S.
presumably because of their approach that Native children should
be taught through the medium of English or Afrikaans, and not a
Native language y.
(d) Applicants refer, hally, to efforts which are being made in the
'lerritory to develop the Native languages la.In doing so, they
quote one sentence from the Counter-Mernorial, some of the words
of which they italicize, and they ascribe thereto a meaning which
it does not, and was not intended to, bear. The sentence reads as
follows :
"In the final result, however, it ïvill be for the groups them-
selves to contribute to the development of their languages to
meet al1edzscationalneeds Il." (ltalics added by Applicants.)
The meaning Applicants ascribe thereto is that the-Natives are
"leftto develoftheir own languages 'to meet alieducationalneeds' "12,
Vide II, p. 315(para. 16).
IV, p. 381.
11,p. 315.
' One of the Okavango tribes.
II, p. 318.
IV, p. 381. Respondent deals hereafter (vide para. 36) with Applicants'
allegation concerning Xative students attending universities in South Africa;
vide IV, p.379, footnote 3.
' Vide III,pp. 360-361.
IV, p. 379. Applicants quote from the Counter-Mernorial a passage prcccding,
and a passage following, the relevant portion; vide second of quoted portions at
footnote 2.
Oneof Applicants' complaints is that Native pupilsare being isolated from one
saveEnglish, or Afrikaans.ey objectto any medium of communication between them
Io IV.pp. 379-380.
l1 Ibid. p.380 and vide III, p416.
l2 IV, p.380. (ItaIics added.) REJOINDER OF SOUTH AFRICA IO3
Le., that their whole future education depends entirely on their
own efforts at developing their languages. That this is not so, and
that Applicants' interpretation amounts to a distortion of what
is stated in the Counter-Mernorial (both in the passage referred to
by Applicants, and elsewhere)l, has already been indicated by
Respondent.
III. THEALLEGATI OHAT RESPONDENP TO'SLICYHAS
"AT LEAST FOUR MAJOR DEFECTS"
34. The aileged defects arestated to be the foilowing:
"(1) it perpetuates, rather than improves, existing deficienci;s
(2) it 'retribalizes' the 'Natives';
(3) jt tends to aggravate the very problems which are asserted to
justify its adoption; and
(4) it is inadequate to provide even the iimited educational
opportunities it professes to offer
It appears on an analysis of these allegations that they amount, in
essence, to a repetition of Applicants' complaints which have already
been dealt with above +.Respondent'ç treatment thereof at this stage
will accordingIy be brief.
35. (a) In dealing with the first alleged defect of Respondent's policy
of mother-tongue instruction, Applicants once again complain of Re-
spondent's "ultimate aim" in regard to the use of the mother tongue
in allstandards, and tlïey allegethat a policy with such an "ultimate aim"
involves "abandonment of Respondent's duty to promote the social
progress of the Native inhabitants of the Territor . Respondent rejects
the allegation, and refers to what it has already said;n this regard.
(6) In regard to the policy's alleged second defect, Applicants Say that
it-
".. .serves to fostertribaldifferences in the Territory and, as
such, to aggravate the very situation wliich Kespondent asserts
as a justification for the policy of 'self-determination' of the
individualtribes asseparate units =".
The policy, they also Say,". ..exacerbates factors which are al!eged
by Respondent tocreate aneed for tribauy separated schools to begin
with" 2,and they complain of the alleged "circularity and faliacy"
ofRespondent's "reasoning" 2.
There is no substance in Applicants' allegations, nor in their
final remark about Reçpondent's alleged "reasoning". Basic to
Applicants' complaint, aç has been indicated 5, is the philosophy
that aU group differences should be wiped out, no matter what the
wishes of thoçe directly concemed may be, and that all groups and
theirmembers should betransformed into onehomogeneous English-
orAfrikaans- (but preferably English-)speaking mass. Thisapproach
is, in Respondent's submission, a superficial and unrealistic one.
l Vide III, p. 360 avidepara.15 (b),supra.
= IV.p. 380.
~bid,pp 380-383.
' Vidc paras257and,3i,supra.I"4 SOUTH WEST ABRICA
Respondent's poiicy, on the other hand, is a realistic and iiberal
policy which gives due recognition to the fact that the Territory
has long been populated by different ethnic and cultural groups.
In recognizing differenceç-in this case, linguistic differences-
between such groups, Respondent cannot fairly be said to "aggra-
vate" or "exacerbate" any situation. Respondent says, also, that
there is no policy of self-determination for individual tribes, only
for different ethnic groups.
(c) Applicants' treatment of the third aileged defect of Respondent's
paiicy islinked with aiiegations which have been dealt with above l,
but they go sornewhat further now and seek to develop a "vicious
circle" argument in which mother-tongue instruction is, in effect,
Iabelled asthe ongin and source of au the difficulties which have
ever attended the extension of Native education in the Territory.
They say :
"... 'mother-tongue instruction' autornaticdy creates a
sliortage of teachers and materiaIs, and also lays a heavy
burden on the administration of the separate educational
faciiities. This functional slowing-down of the educational
process must in tum lower the level and extent of educntion,
and as a result the 'Native' communities, being relatively un-
educated, do not appreciate the value of education. This, in
turn, aggravates the conditions to wfiich Respondent's reaction
is to institute vernacular instruction 2."
This argument purports to be based on information supplied bp
Reçpondent 3, but the facts furnished in the Counter-Mernorial
justify neither the allegations made nor the conclusions drawn by
Applicants. Applicants wrongly identify the policy of mother-tongue
instruction with various unconnected factors which have served to
retard Native education,and fail to take into account the historical,
sociological, psychological, geographical and financial factors which
liave played a role in the development of Native education. In
Respondent's subrnission a perusal of the reIevant portions of the
Counter-hleinorial will clearly show that Applicants' argument is
without substance, and Respondent does not propose dcaling with
it any futher Saveto point out that, in the final stage of their argu-
ment, i.e., when trying to complete their so-calied "vicious circle",
they distort the meaning of words used in the Counter-Mernorial.
They say, in effect, that Respondent employs mother-tongue
instruction "since the majority of Native pupils leave school after
the firçt few years of schooling" Respondent said, in the relevant
passage in its Counter-3Iemorial 6, that the 1958 Commission of
Inquiry recommended mother-tongue instruction in the sub-
Standards and,as far as possible, also in Standards I and II. These
courses, Reçpondent stated, were the most important ones as far as
Vide pars. 33, supra.
Vide IV, p. 380-381. (Footnotes omittcd.)
Ibid., p. 351, footnotes 1-5.
' Vide III, pp. 407-42in regard to factors which have serveto retard Native
education.
IV, p.381,footnote 5.referringtoIII, p. 355.
III, p358. REJOIXDER OF SOUTH AFRIC.4 105
Clatives were concerned "since the rnajority of Natives leave school
after the hrst fewyears of schooling".
Misleading, too, isApplicants' use of the staternent in the Counter-
Mernorial lthat "[tlhe extra year in the case of Native pupils is
necessary largely because of language difficulties". Applicants seek
to create the impression that rnother-tongue instruction brings about
an extra year at school, while this is not so. Extra tirne is needed
prirnarily because of difficulties encountered by Native pupils in
studying two languages foreign to them, viz., English and Afrikaans.
Furthermore, the extra year is occasioned not only by language
difficulties, but dso, as indicated in the Counter-Memoria12, "m
order to bring the standard of their work on a par with that of
European students".
In conclusion :Kespondent denies Applicants'aliegation regarding
"deprivation of education" in the case of Native children 3.Re-
spondent rejects the suggestion that it was intended in the Counter-
Mernorial to "excuse" its conduct and to offer "explanations" for
that purpose, and denies that anything said by it in the Counter-
hlernorial "reinforce[s]" Applicants' allegations*.
(d) The fourth alleged defect of Respondent's mother-tongue instruc-
tion policy, viz., that it "cannot possibly accommodate al1 the
'Native' children. It cannot even accommodate al1 tlie 'Native'
languages" 4,covers part of the cornplaint tvhich has been dealt with,
and Respondent refers to what has already been said 5.
IV. THEALLEGATIO THNAT THE "EVILS" OF THE POLICY ARE
"COJIPOUND ENDSOUTH AFRICA AT THE UNIVERSIT LEVEL"
36. Applicantç allege, finally, that-
"[tlhe evils of 'mother-tongue instruction' in pnmary and secondas.
schoolsin South West Africa are compounded in South Afnca at the
university level by the evils of 'Bantu education' in diflerent'mother
tongues' 6",
and, after referring to the existence of three university colleges for
"South Afncan 'Bantu' " (viz., The University College of Fort Hare,
The University College of the North, and The University College of
Zululand), they Say :
"In 1962 the first student from the Territory was admitted to the
College of the North. Speaking Herero or Ovambo, he \vould pursue
a course of 'higher education' in the Company of Sotho-, Tsonga-,
and Venda-speaking associates. This is the reductioad absurdumof
Respondent's educational apartheidpolicy ?."
Applicants seem to labour under the mistaken impression that Bantu
languages are used as media of instruction at the Bantu university
IIIp. 450; videIV, p. 381. footnote 3.
Ibid., p450.
reference to Reçpondent's policy ofther-tongueainstructiointhe Rlemorials.
Ibid.. 38 r.
vicie para. 33, supra.
IV, p.382.
' Ibid., pp. 382-383. Iiespondenpoints out that there arc at presentthree
Native students from the Territoat tliis institution.106 SOUTH WEST AFR~CA
coiieges in Soutli Africa l,othenvise it isnot clear why they should find
it "absurd" for a Herero or Ovambo to attend lectures in the Company of
Sotho-, Tsonga- or Venda-speaking students-unless, of course, Appli-
cants are deliberately misstating the position, as they do when speaking
of mother-tongue instruction "in .. .secondaql schools in South West
Afnca" *. In the Territory, as in South Africa, Native students in
secondary classes are, at present, instructed througli the medium of
Afrikaans orEnglish, which languages are also the media of instruction at
the Bantu university colleges. Even if the Bantu Ianguages should, at
some time in the future, be made media of instruction in secondary
schools, the position will stili be that al1 Native students wiii study
English and Afrikaans as subjects in al1standards at school. There is, in
Respondent's submission, nothing absurd in the positionwhich Applicants
so attempt to describe.
D. Limitation of Objectives in Syllabus
37. In the section of the Reply headed "Limitation of Objectives in
Syllabus" 3, Applicants make the charge that Native education is
"materialistic and utilitarian" 3.
Ta support their charge, Applicants first refer to passages in reports of
two Commissions which dealt with Native education in South Africa 4,
and to two passages iil speeches made by Ur. Verwoerd in 1953 and 1954
Then, after saping thnt the Transkei Commission, ten years later, found,
inter alin, that in the primary school syllabuses "too much time was
devoted to the practical subjectç" and "insufficient time .. . to the basic
skills in the langunges and arithmetic" ', they proceed to deal with
syllabuses in South IVest Afnca.
An analysis of the various allegations made by Applicants in regard to
syllabuses in the Territory shows that the charge of being "materialistic
and utilitarian" relates only to the education offered in prirnary schools
In the case of secondary schools andother courses the complaint is not
that Native education is "materialistic and utilitarian", but that fewer
practical, industrial and commercial courses are available to Native than
to Europeail students 9."This situation", Applicants nllege, "is a result
of Respondent's larges policy conceming the position of the 'Native' in
the 'Enropean' economic world, or, in the alternative, the level of ski11
required or desirable in thedeveiopment of the 'Natives' own 'com-
munities' l0" , and they refer to a part of their lieply l1 with which Res-
pondent has slready dealt 12.
l IV, pp.382-383. Respondcnt points out that there are at present three Kative
students from the Territory at this institution.
Vide the firsptassage quotedinthisparagraph.
VV, p. 383.
Ibid.Vide footnotes2 and 4.
Ibid. Vide footnotcs 3 an5.
Ibid., pp. 383-384uidsfootnote r on p. 384.
Ibid.pp. 384-386.
Vide allegationsin regard to lower primary and higher primary courses; IV,
P. 384.
IV, pp. 384-386,
Ibid. p. 386.
l1Ibid. Vide footnote3.
l2 VideChap.II, supra. REJOINDER OF SOUTH AFRICA 107
The vanous allegationsmade by Applicants willbe dealt with hereafter
by Respondent under the foIIowing heads, viz.:
Reports and speeches referred to by Applicants ';
Primary school courses 2;and
Secondary school and other courses
Before dealing with these various aiiegations, however, Respondent
first gives, in the next succeeding paragraphs, a brief statement of its
views on, and of the position of, practical subjects in primary schools,
and, also, a brief exposition of the attitude of the Permanent Mandates
Commission in regard to such subjects in Native education.
38. In Respondent's view primary school syllabuses should be so
arrangedas to strikea proper balance between, on the onehand, education
which may be temed practical, or utilitarian, and, on the other hand,
education which is usually described as literary, or academic. It is Re-
spondent's submission, furthermore, that in South West Africa, as in
South Africa, various factors operate to require that proper attention be
given to practical subjects in Native primüry schools. Thesc factors rnay
broadly be stated to be: the largely rural and non-technical background
of the Native groups; the necessity for giving sornc useful education to
the many Native pupils who, for a variety of reasons, 1e:~veschool to
takeup employment after only a few years' study ;and, also, the increas-
ing demands which will in future be made on Native communities to
improve their social and economic levels of development.
At least some of the aforementioned factors, it may be pointed out
briefly, operate in other African countries to give their education a
practical bias. So, e.g., a reference to the report of the proceedings of the
"Conference of African States on the Development of Education in
Africa", held at Addis Ababa in 1961 4,shows that it was agreed, inter
dia,by the rnembers taking part-including both -4pplicants-that,
because of earIy schooI-leaving in African countries,
"... prirnary education should prepare children who would not go
on to secondary education for productive occupations. In that
connexion, it was stressed that prirnary education should be self-
contained while being preparatoryto secondaryeducation and should
have a practical bias. The sarneapplied to middle or junior secondary
schools which would gain by adopting an agricultural or technical
bias . ..
It has been pointed outby GeorgeA. Lipsky in regard to Ethiopia that
"emphasis in elementary as wellas in secondary schools" has longbeen on
"academic subjects, such as arithmetic, science, history and geography",
but that there has been a new approach recently. He wntes:
1 Videparas. 42-45.intra.
2 Vide para. 46,infra.
5 Vids Daras.47-49.infra.
Vide ÎII,pp.378-3,;.
UNESCOIEDIIBI ,. 36.Vide also III, p378-379 (paras. 55 and56)forviews
expressed atthesaid Conference in regard ta adapting curricuia to randlvillage
life, and spending less time on subjects not related to African needs.108 SOUTH WEST AFRICA
"Plans to adapt the curricda to local educational needs have been
in progress since the1950' s. the elementary grades, more time is
to be devoted to health, education, and handicrafts. Courses em-
phasizing basic technical and economic skills, particularly in agri-
culture (truck gardening, poultry and cattle raising) and home
economics, are contemplated ... Local traditions are to be retained
through handicraft instruction, such as pottery and basket weaving.
In the secondary curriculum, academic subjects \vilbe taught on
simplcr levels, and practical subjects, such as woodworking, metal-
work, and needlework (for girls), will be added l."
39. Uecause of various practical considerations, which need not be
discussed here, somewhat less tirne has at al1 tirnes been devoted to
practical subjects in the Native primary schools of South West Africa
than in the Bantu schoo1sof South Africa. This is still the position today,
despite certain changes which were brought about in this regard when
new syIlabuses were introduced for Native schools in the Territory in
1961-1962 2.The time previously allotted to handwork subjects was then
increased by 60 minutesper week (from goto 150minutes per schoolweek)
in al1 the primary standards, and reduced by 30 minutes (from go to 60
minutes per week) in the sub-standards. In the case of Ovamboland and
the Okavango territory, where great interest isdisplayedinthe traditional
crafts and where local inhabitants make articles for which there is a
ready market in the rest of the Territory, it was decided to allot 60 minutes
per week more to practical subjects than in schools in the Police Zone
(making a total of 2x0 minutes per week) ; however, as a result of various
difficulties there is, in practice, little or no diffeinthe time actually
spent on practical subjects in the various regions3.
40.At the present time there is little difference in the time allotted to
practical subjects in European and Native primary schools in the Terri-
tory. As will be indicatedinmore detail below 'the actual position is that
Native pupils spend more time than European pupils on practical sub-
jects in Standards 1 and II,whcreas the converse position applies in the
other Standards. In al1cases, however, the differencesin time are srnall.
In tliis regard it will be shown below that Applicants' charges in the
Reply regarding practical subjects in European and Native schools are
completely unfounded, being based on a wrong interpretation given by
them to yarticulars contained in the Counter-hlemorial.
II. ATTITUDE OF THE PERMANEN TANDATE CSOMMISSION
41. The Permanent Mandates Commission often stressed the value of
instruction in practical subjects as a meanç of uplifting the indigenous
populations in mandated territories. In 1924, at its Fourth Session, it
expressed the view that-
"... by making character-training and discipline, the teaching of
agriculture, animal husbandry, arts and crafts, and elementary
l Lipsky,G. A.,Ethioflia:Ils People, Ifs SociIts Ctrlfure (196.p.97-98.
Vide III, p448.
Departmental information.
+ Vide para.46,infra.
IV.p. 386. REJOINDER OF SOUTH AFRICA
I0g
hygiene, the keynote of educational policy, the gradua1 civilisation
of the native populations as well as the economicdevelopment of the
countries dl be furthered in the best possible manner l".
And on several occasions thereafter the Commission reminded Re-
spondent that, in its view, Native education in South West Africa was
not sufficiently practical. In1938, according to the Minutes of the Com-
mission, Mlle Dannevig stated that in her view the Native schools gave
"perhaps ... tao literary an education", and that they had not "devel-
oped a practical side, so far as she couId see" =. Mr. te Water, Respon-
dent's representative, is reported to have agreed that-
"... the education in both the Government and mission schooIs was
much too clencal, and they had been, in hisopinion, validly criticised
on that account 2".
The topic was again discussed in 1939. Mlle Dannevig is recorded as
having said that-
"[i]t had also been stated on a previous occasion that native education
was somewhat too theoretical, and that efforts would be made to
give it amore practical characier 3."
In answer to her question whether "anything had been done in that
respect", South Africa's representative, Mr. Andrews, replied, according
to the Minutes, that-
"... the comments made at previous examinations had not been
lost sight of, and had been passed on to the proper quarter.
There was general agreement on the point that a practical rather
than a pureiy literary bias should be imparted into native edu-
cation 3."
III. REPORTS AND SPEECHER SEFERRED TO BY APPLXCANTS
42. The brief passage quoted by Applicants from the report of the
Interdepartmental Committee on Native Education (1935-1936) 4-a
passage extracted from two paragraphs in the report 5-creates the
impression that the Committee expressed the view that the nature, or
content, of education given to Natives in South Africa was such that it
"prepared" them "for a subordinate society". This is not correct. The
point the Committee sought to make was that-
". ..the two social orders for which education is preparing White
and Black are not identical and will fora long time to corne remain
essentially different6",
l P.M.C.. Min.,IV,p. 184.This view, describcdas a "general resolution on
education policy" wasgain referred to by Mme Wicksell in 1gz7:P.M.C., Min.,
that the Nativeshof the Territorshould not receive "a literary educationbuttes,
practical instructiin agriculture, hygiene and cognate subjects suitcd to the needs
of the preçent developmentof the different triwhich would make them better
and more useful subjects of the community" (P.M.C.. Men., XXVI, p. 59).
2 P.M.C.. Min., XXXIV, p.gr.
P.hl.C. Min., XXXVI, p.38.
* U.G. zg-1936.
Ibid., pp. 87-88 (paras. 458 and 459).
Ibid.p. 87 (para457).1 IO SOUTHWESTAFRICA
and that thoçe who regulated education should take account of circum-
stances as they existed. In this regard it said, inter alia:
"The generai standpoint that the Committee takes is that a
nation's educational system iç the reflex of her history, her social
forces alid the political and economic situations that make up her
existence. The same applies to the system of Nativeeducation, which
is the product of many factors not easily changed ovemight. It does
not, therefore, help much to envisage Native education as operating
in vacuo and striving after transcendental ideals ... l"
In dealing with the content and methods of instruction in Native
schools, the Comrnittee, which did not formulate anp syllabuses for use
in schools, adverted,inter aliat,o the fact that the "school life of most
Native children [\vas] very short, hardly three years" 2, and stated that
it was therefore of fundamentalimportance that "edzrcalion~nust be made
weimlh-while for the children as jar as it goes" 3. It pointed out that:
"[tloo often children are taught content matenal merely as a
preparation for a more advanced stage of education which onIy one
or two percent. will in actual fact everreach. Experience shows that
this one or two per cent. are usually selected pupils above average
ability who could easily make up aftenvards these small deficiencies
in their fund of knowledge when they get to the advanced stages
where such knowledge may be required 2",
and exprcssed the view that "work should be ço organized that the
interests of the majority are conçidered first" +,but that "[a]t the same
time there should be facilities by which future leaders of the Native
people can be trained" 5.
In regard to the place to be awarded to "manual work and crafts in the
pnmary school" 6,the Committee stated thatthe "wisdom of introducing
manual training in the elementary school has been recognised by the
leading educational philosopfiers" 6,and that "some types of manual
work" had been introduced into most Native schools. Its introduction
had, on the whole, not been an "unqualified success" 7, and Native
opinion was that it didnot have either the ediicational or economic value
which had originally been hoped for 7. The Commission stresçed the
educational value of such subjects ifpropcrly taught and pointed out
that-
". .. the object of manual and handicraft work for children at the
elementary stage islzot direct training for occzrpatio? n Ihe indust<ial
field-though it is quite conceivable that such elementary training
ma7 predispose boys or girls having talent in makin$,!hings with
their hands, to take up work in this direction later on .
' U.G. 29-1936, p. 89 (para. 463).
Ibid.p. 93 (para.480).
' Ibid. Videatsop. 106 (para. 532):". . .theNative schoolmust be soplanned as
lowaakeil worth-whik forthe childrenasjar as they go."
* Ibid..p.93.
Ibid. (para. 48r).
Ibid.p..92 (para. 474).
' Ibid. (para. 475).
Ibid.p. 93 (paras. 478-479).
Ibid.p. 92 (para. 477). REJOINDER OF SOUTH AFRICA III
The Committee's approach to the question of providing education for
Native pupils, both for the majority who left çchool during the first few
years and for the minority who did not, was, in Respondent's çubmission,
a reasonable and realistic one. Nothing said in its report can in any way
justify Applicants' sarcastic rernark to the effect that a "limitation on
the education of 'Natives' " is "intended to encourage them to undertake
occupations in the service of their own 'communities', or to obtain the
training necessary for a continuing position as labourer in the 'White'
industrial world" l+
43. In support of their alIegation that Native education is "materialis-
tic and utilitarian", Applicants also cite the foilowing passage from a
paragraph in the report of the Eiselen Commission :
".. .it is essentialta consider the language of the pupils, their home
conditions, their social and mental environment, their cultural
traits and their jelture posirioîzand workin South Africa 2". (Italics
added by Applicants.)
Itis,presumably, the italicized words which are regarded as sinister by
Applicants. No objection can be taken thereto, in Respondent's sub-
mission, and it is not appreciated why an educational policy should be
criticized for having regard to the "future position and work" of those
who attend school, especially in the case of a cornparatively under-
developed community which it is sought to develop, inter alia, through
the agency of the schoolç. The Eiselen Commission advacated a system
of education which would, apart from its value to the individual, play
an important part in the general development of the Bantu people of
South Africa. It stated in this regar:
". . . Bantu development and Bantu education must be largely
synonyrnous terms. Education is more than a matter of schooling;
indeed, in the education of a society to make a tremendous cultural
leap çuch asthe South African Bantu are called upon to make, the
schooling of children, though of the utmost importance, rnust be
regardcd as only a part of a larger process. School education, if it
is to be CO-ordinated and in harmony with social development,
must be seen as one of the rnany educational agencies and processes
which will lead the Bantu to better and fuller living 3";
and it proposed the followingdefinition ofthe aims of Bantu education:
"(a) From the viewpoint of the whole society the aim of Bantu
education is the development of a modern progressive culture,
with social institutions which wilI be in harmony with one
another and with the evolving conditions of life to be met in
South Africa, and with the scliooIs which rnust serve aç
effective agents in this process of development .
(bj From the viewpoint of the individual the aims of Bantu
education are the development of character and intellect,and
the equipping of the child for his future work and sur-
roundings +."
IV, p.383.
IU.G.53-1951,p. 130(para..G.764).951,p. 130(para. 765).
'Ibid. (para.765),II2 SOUTH WEST AFRICA
This proposed definition is followed by the following paragraph, part
ofwhich is the passage quoted by Applicants :
"To harmonize the individual and social viewpoints as stated
above it is essential to consider the language of the pupils, their
home conditions, their social and mental environment, their cultural
traits andtheir future position and work in South Africa l."
It is clear, in Respondent's submission, that Applicants' reference to
the Report of the Eiselen Commission in no way supports the charge they
attempt to establish.
44. Applicants' reference to Dr. Venvoerd's 19j4 speech in the South
African Senate is incomplete and misleading. From al1 that Dr. Ver-
woerd said on that occasion in regard to the "interna1 reformation of
Native education into Uantu education" 3,Applicants quote only one
sentence, viz., "[tlhe schooI educationmust also equip hirn [i.e.,the Bantu
pupilj to meet the demands which the economic life in South Africa will
make on hirn". They thereby create the false impression that this sen-
tence contains a statement of, if not the only, then certainly the chief,
aim of Bantu education. Dr. Verwoerd stated that, to carry out this
"reformation", various requirements would have to be met. One of
these-and it is part of what he said in this regard that is quoted by
Applicants-he described as follows:
"Secondly, (a) The Bantu pupil must get knowledge, training and
an attitude in school which will be useful and advantageous to hirn
and at the same time benefit his community. (b) The subject-matter
must be put to him in such a way that he can understand iteasily
and make it his own so that he can benefit and serve his community
in a natural way. (cj The school education must also equip him to
meet the demands which the economic life in South Africa will
make on him 4."
Whilst Dr. Venvoerd no doubt stresçed the economic aspect, neither the
passage quoted, nor the speech from which it is taken, affords justifi-
cation for the suggestion that he thought that the aims of Bantu educa-
tion should be purely economic or utilitarian. The stress which Dr. Ver-
woerd laid on the economic aspect was, in Respondent's subrnission, en-
tirely justified, particularly when regard is had to the plan for Bantu com-
munity deveIopment, to whichreference has aIready been made j, and to
the fact that so many Native pupils leave school after only a few years'
schooling. As has been indicated before 6,Dr. Venvoerd made special
reference to the large number of Native pupils who leave school before
completing even the lower primary course, and who therefore have to be
taught some Afrikaans and English during their first years at school so
as to assist them in finding employment. This does not mean, however,
that he thought that all school education should be of a practical nature,
or be directed to preparing pupils for their future occupations. In an
l U.G. 53-1951, p. 130 (para. 765).
IV, p. 383; anvide Chap. II, paras5, 7-11,supra.
U. ofS.A.. Parl. Deb.,Senate, Vol.II (1954). Col2606; videChap. II, para.
IO, sas~ra.
+Ibid. VidealsoChap. II, para.IO, supva.
VideChap. II, paras. 5 et seq., supra.
Ibid., para.7,supra. REJOIBDER OF SOUTH AFRICA II3
earlier speech in Parliament on Bantu education Ur. Verwoerd stated
that there would be "a healthy differentiationin forms of education" I,
and that provision would be made not only for those who would become
industrial or agricultural workers, but also for those who sought to enter
the higher professions 2.
Applicants also quote the following words, used by Ur. Verwoerd in
1953: "What is the use of teaching a Bantu child mathematics, when it
cannot use it in practice? That iç quite absurd 3."These words form part
of the speech whch Dr. Verwoerd made in Parliament in introducing the
Bantu Education Bill in the House of Assembly +, and in which he
indicated, inter alia, why there were, in practice, certain differences in
thecontent ofeducation as given to European and Bantu children. He said:
"Then 1 stiil want to add that it is sometimes said that there is no
difference between European and Native education. Of course there
are certain fundamental educational principles wliich are common
to all types of education, but forgetting [or a moment those prin-
ciples, when you corne to practicai teaching, there are definitely
differences witti which one has to reckon. What is the use of sub-
jecting a Native child to a curriculum which in the first instance is
traditionally European, in which one learns of the Kings of England
and how much wheat Canada has exported and through which our
children are taught these general facts as a means of building up a
fount of knowledge? What is the use of teaching the Bantu child
mathematics when it cannot use it in practice? That isquite absurd.
In other words, your teaching should begin where ail education
should begin, namely with the known facts or common knowledge.
The coinmon knowledge of the white child is different from that of
the Bantu child. Everybody who has had anything to do with
intelligence tests kno~vsthat when 'ou try to apply an intehgence
test based on tlie common knowledge of children of a certain com-
munity, the test can be a complete failure and give entirely wrong
results in respect of children not falling within the same group of
common knowledge .. .The same applies to education. It is therefore
also correct to say that Bantu education must of necessity be
different, because it has as its starting point other sources and other
kinds of knowledge =."
As appears from the quotation above, Dr. Verwoerd said, in effect,
that there were two reasons why Bantu education must, in practice, be
different from European education. The first reason involved the educa-
tional principle that, in the process of early education, a child should be
led from what is knomn and familiar to itto what is unknown 6,and he
stated in this regard that what waç known and familiar to Bantu and
European children was not the same. The second reason, which must be
viewed against the background of the role envisaged for education in a
U. of S.A.,Parl. Deb., HoikseofAssambly,Vol. 83 (1r)53)Col. 3581;and vide
Chap. II, para. 17, supva.
Ibid., Col. 3580,anvide Chap. II. para. 17. sirpra.
IV, p.383, quotins from U. ofS..4., Pari. Deb., Hoirof Assembly, Vol. 83
('9531,col. 3585.
' Vide Chap. II, para4, supra.
5 U.of S.A., Parl. Dcb., HolrofAssembly, Vol.83 (1953) C~ols3584-3585.
Videalso U.G. 53-1951, p. 131 (para. 773). andChap. II, par15,sxpra.II4 SOUTH WEST AFRICA
comprehensive plan for the social, economic and political development
of the comparatively under-developed Bantu communities of South
Africa l,was that those Bantu communities had certain specific needs,
and that certain types of knowledge, commonly sought in European
communities, might be quite inappropriate to meet those needs, or to
contribute to the kind of development whch mas most urgently required 2.
Although Dr. Venvoerd referred to mathematics by name, he did not
thereby iatend to say that mathematics was, in fact, a subject which
could not usefuily be studied in Uantu schoolç, or which would not be
taught in such schools. He referred to it merely as an cxarnple of a type
of knowledge which might be useless, Le., "if [the child] cannot use it
in practice". That this is so, issupported bythe position which mathe-
matics occupied in Igj3, when Dr. Verwoerd spoke, and the position
which it occupies today. In 1953mathematics was not, asit still is not,
taught in aiiy primary schools, European or Bantu, in South Africa. At
that time it was offered asa subject in Bantu secondary and high schoolç,
and the position isstili the same today.
45, With reference to Dr. Verwoerd's statement which has been dealt
with immediately above, Applicants Say:
"This philosophy was implemented so thorougkly that the
Transkei Commission, ten years later,found, inter dia:
'... much evidence of dissatisfaction with the syllabuses in the
primary schools on the grounds that too much time was devoted
to the practical subjects and religious instruction. It was asserted
that aii over-emphasis had been made on fitting the ctiild at too
early an age forhis post-school life, to such an extent that insufl-
ctelztirne was being allocated tothe Basicskills in thelanguagesand
arilhmdic' 3." (Italics added by Applicants.)
Respondent rejects the ailegation that any "philasophy" expressed by
Dr. Verwoerd can rightly be related to the fmdings of the Transkei Com-
mission *. \lrithout going into detail, Respondent points out that Dr.
Verwoerd at no stage indicated that English, Afrikaans or arithmetic had
lost any of tlicir value for the Bantu or that less would in future be
devoted thereto in Bantu schools. He stated in hrs aforementioned 1954
speech in the Senate that English, Afrikaans and arithmetic would be
taught even in the loïverprimary classes 5, and that Afrikaans-ne of the
languages about which witnesses before the Transkei Commission had
expressed their concern-had never been studied in the Bantu schools of
the Transkei, but that it would be introduced as a subject in those
l Vide Chap. 11,paras. 5et sep.sirpra.
2 Dr. Verwoerd, in dealing with the same matter inhis 1954speech in the Senate,
said :
"The curriculum ... envisages a system of education which starting with
the circumstances of the comrnunity aims at meeting the requirements of the
community ..." Vide W. ofS.A., Parl.Deb., Senale. Vol. II(19541,Col.2611.
and Chap. II, para.II (c), stipra.
Ni p 383.
4Whilst Respondent canappreciate how an alIeged over-emphasis on practical
subjects can be attnbuted by Applicants to an alleged utilitarian philosophy, it
cannot understand how an alleged over-emphasis on religious instructioncan be
ascribed to the same philosophy.
U. ofS.A., Parl. Deb., Senale (~9541V ,ol. II, Col. 2609;videalso Chap. II,
para. rr (b), supva. REJOINDER OF SOUTH AFRICA II5
schools l. On another occasion, as haç been shown 2, Dr. Verwoerd
stressed that education would be made suitable for various classes of men
of the future, i.e., not only,industrial and agricultural workers, but alço
professional men.
Respondentpoints out, furthermore, that syllabuses used in the Bantu
primary schools of South Africa are revised from thne to time by the
Generai Planning Division of the Department of Bantu Education in
order, inter dia, to ensure tbat a proper balance be maintained between
the various subjects prescribed. The last revision in the case of iower
prirnary and higher primary syllabuses took place in 1963,when certain
changes were made, interalia, in regard to practical subjects.
A cornparison between the recomrnendations made by the Transkei
Commission concerning certain subjects and the prescriptions of the
aforesaid 1963syUabusesreveals the following :
In re~ardto~taidards I andII
(a) The Commission recornmended that the nurnber of practical
subjectsin Standards I and II be reduced from three to two, and
that a total of 150 minutes per week be devoted to those two
subjects 3.The 1963lowerprimary syllabus prescribes two practical
subjects, and the time allocated thereto is 120 minutes per week 4.
(b) The Commission recommended that 240 minutes be aliocated in
each weekto each ofthe languages (English,Afrikaans and Xhosa)
and arithmetic 3. The 1963syllabus docates 270 minutes to each
of the officiai languages, aro minutes to Xhosa, and 210 minutes
to arithmetic 4.
In regard to1tigher$rimarysiandards
(a) The Commission recommended that the number of practical
subjects be reduced from three to two, and that a total of 240
minutes per week be devoted to those two subjects The 1963
higher primary syllabus prescribes two practical subjects, and
aliocatesa total of 240minutes per week thereto *.
(b) The Commission recomrnended that 270 minutes per week be
aliocated to each of the official languages, and 240 minutes to
arithmetic 6.The 1963syllabus aiiocates 240 minutes per week to
each of the officiallanguages, and 205 minutes to arithmetic 6.
46. Respondent now turns to Applicants' aiiegations in regard to the
lower primary and higher primary syl~abusesin the Native schools of
South West Africa-Le., to Applicants' effort to show that Dr. Ver-
woerd's alleged "materialistic and utilitarian" philosophy has been so
implemented in the Territory that Native children take more practical
1 W. of$.A .,ParE. Deb., Senat(rggq). Vol. II, Col2611. Vide also R.F. 22-
1963,p. 6 (secC,para. I{c))where it is confirmedthatAfrikaanswaçnot studied in
Transkei schools before 1955.
Vide Chap. II, para.17,supla.
R.P. NO. 22/1963.p. 14 (para. 8 (b)).
* Departmental inf~rmation.
Ibid.(para. 8 cd)). 15 (paras.8 (dl and 8 (e) (ii)).
' Vide IV. p. 383.116 SOUTH WEST AFFUCA
subjects than European children, and that the result thereof is that
European children spend more time on other subjects while Native
children "are ke tbusy with their manualsubjectç" '.
Appiieants' degation in regard to lower primary school syllabuses is
that European children take only one practical subject, whereas Native
childrei~take six l.In regard to the higher prirnary courses they allege
that "the same pattern ispresent" l.
Applicants' allegations, as has been stated above 2,are unfounded,
being based on a wrong interpretation ofparticulars given by Kespondent
in the Counter-Memorial. In the case of European education it was stated
in the Counter-Mernoriai that "girls and boys are offered different hand-
work subjects" j,but no indication was given of what the terrn "hand-
work" included. In alist given of subjects comprising the primary course,
the term "handwork" was used 3, without an indication of what it com-
prised. "Handwork" is, bnefly put, a term which comprises various
practical subjects whch can Vary from one school to another, depending
on local circumstances. In the chapter on Native education in the
Counter-Memorial, which contains far more detail than the chapter on
European education, various practical subjects are listed in connection
with both lower primary and higher primary courses 4,but this does not
mean that they are all part of the curriculum at every lower or higher
primary school. As in the case of European education, practical subjects
are not the same in ali schools, or in al1 parts of the Territory. The
position wili, therefore, be clear if one substitutes, as in the European
school syilabuses, the term "handwork" for "cleaning work, weaving and
claywork, needlework (gris), scrap work (boys), gardening" in the kt
of lower primary subjects, and for "gardening, tree planting and soi1
conservation (boys), wood, leather and scrap work (boys), needlework
(girls),handicrafts" in the list of higher primary subjects
Since the introduction of new primary school syllabuses in 1961-1962
the position in the lower prirnary schools is the following: In the sub-
StandardsEuropean children spend more time on practical subjects than
Native children, viz., 12.5 per cent. of the time in each school week as
against 7.5per cent. in the case ofNative children in Sub-A, and 6.66per
cent. in Sub-B. In Standards 1 and II, Native children spend more time
on practical subjects, viz., 12 per cent. of tlie school weekas against 9.33
per cent. in the case of European children. In the higher primary stan-
dards more time is alIotted to practical subjectç inEuropean schools than
inNative schools, viz., 11.6p 6er cent. of the time in each school week as
against IOper cent.6
IV, p.384.
Videpara.40, supra.
' Ibid., p. 449,
Drawiag, mentioned in the list of subjectof Native lower primary schools
(III, p.449) is taken also in European schools, but isnot separately listed in the
Counter-Memorial. It is taken in combinatioa with liandwork.
Departmental information. This is the position relating to higher priinary
courses in the Police Zone. In Ovamboland and the Okavango the syllabuses
formally provide for more time forpractical subjects than isthe case in European
schools, but, ashasbeen said (vide para. 39. supra),there is in practice little or no
difference in the time spent on practical subjects in the Native schools of the Police
Zone and the northern territories. REJOINDER-OF SOUTH -4FRICA
47. Applicants point to the fact, which clearly emerges from particu-
lars furnished by Kespondent in its Counter-Mernorial, that syllabuses in
Native secondary scliools offer fewer options to Native pupils than do
syllabuses in European schools to European pupils. In this regard Res-
pondent stated in its Counter-Mernorial that secondary education for
Natives waç of fairly recent origin in the Temtory, and that small
numbers hampered subject differentiation l.
Applicants say in this connection that the Committee on South West
Africa, in its 1960report,
".. .regret[ted] that the courses contemplated for 'Natives' by the
Administration, after the report of the Commission of Enquiry into
Non-European Education had been considered in 1959 1re based on
syllabuses different £rom those offered for other sections of the
population rather than on a syçtem of education which would
prepare them to participate more fully and on an equal basis in the
political, economic and social life of the Territory 2."
Assuming that the Committee intended to refer not only to syllabuses in
prirnary schools, but also to the matter here in issue, viz., courses, and
options, offered in secondary schooIs(whichis not clear), the Committee's
approach was quite obviously that there should be no separation in the
education of Native and European chiIdren, but that there should be
integration in the educational, political, economic and social spheres.
This is a matter with which Respondent bas already dealt, and it is not
intended to repeat what has already been said. Sufficeit to say that the
Committee's suggestion is unreaiistic and that itwill, if any attempt is
made to implement it, create a situation which \vil1be to the detriment of
al1education in the Territory 3.
In regard to courses offered in secondary schools in the Territory,
Applicaiits say, in a footnote 4,that Native students who may not wish to
take agriculture as a subject are nevertheless obliged to do so at the
Augustineum and at Onguedira, although the position is different at
Doebra. This is true.As Respondent has indicated, lack of nurnbers has
thus far reçtricted subject differentiation. It is incorrect to suggest. how-
ever, as Applicants do, that the first-mentioned schools should be re-
garded as agncultural çchools of the kind Gammams and Starnpriet had
been ', for the latter had been agricultural schoolç in lvkich "cultural
subjects" had pïayeci a minor, and supplementary, role.
48. In regard to secondary school courses it is pointed out that the
Odendaal Commission has recommended that provision be made for
three Jimior Certificate courses, viz., ageneral course, a commercial and
clerical course, and a technical course 5.
III, pp. 437 and 450. Respondent also pointed out that subject differentiation
in European schools was of recent origin (ibid.501).It shouId, furthermore, not
be thought that al1European secondaryschoolosffer the several types of courses
referred to (ibid.), numbers beingthere ala limiting factor.
"IVide III. p. 382.
' IV, p.385, footnote2.
R.P. h'o.1zlrg64,p.257 (paras. 1064 (c)(d) and (e)). In South Africa, it may
be pointed out, there are three Junior Certificate courseofthe same name for
Bantu students.118 SOUTH WEST AFRICA
The Commission mentioned the following as subjects which could be
included in the various courses :
Generalcourse:
"... the mother tongue, Afrikaans, English, social stuclies, general
anthmetic, religious instruction, physical training, singing and mu-
sic, and subjects chosen from: a science, agriculture, mathematics,
woodwork, arts and crafts, homecrafts, etc. l".
Commercial and clericalcourse :
". ..basicaliy the same aç the General Junior Certificate Course,
but with subjectschosen fromthe following :bookkeeping,commerce,
typewriting, shorthand, commercial anthmetic and a science
Technical cotirse:
". .. basically the same as the General Junior Certificate Course,but
with subjects chosen from the following : building consttuction,
joinery, carpentry and cabinet-making, drawing and design, tailor-
mg, wickerwork, leathenvork, rnechanics, etc. 3".
Consideration is at present being given to the introduction, at the
earliest possible moment, of a Junior Certificate technical course as re-
commended by the Commission.
49. In regard to industrial and vocational courses Applicants point
out, by reference to information which Respondent supplied in its
Counter-Mernorial, that there are fewer such courses available to Native
pupilç than to European pupils l, Respondent has pointed out in this
regard that not much interest is showninthose courses which are available
to Natives 5.
Applicantsalsorefer, in connection with the aforementioned courses, to
loans and bursaries which the Administration makes available for stud
in South Africa 4.They point out that there are six bursaries open to al'
students in the Territory 6; they also say-correctly-that one bursary
has since January 1964 been made available "to a deserving Native
student" ',but they add that a Native student's chances of winning a
bursary are "practically limited to the one bursary" ',and refer to a pas-
sage in the Counter-filernorial where Respondent stated that "thus far no
Native studenthas in any way rnerited .. .[one ofthe six bursaries open to
al1students]" '.It isnot clear precisely what Applicants' complamt JS,for
they do not dispute that the ment bursaries-the number hassince been
increased to ten a-are open to alZstudents in the Territory, or that one
bursary ha5 been established specially for Native students. Respondent
points out, as has already been stated in the Counter-hlemorial g, that
secondary education forNatives in the Territory is of fairly recent origin,
and that few Native students have thus far been candidates for the
Matriculation examination. It was in the light of these circumstances
that it was decided to eçtablish a bursary specially for Natives as from
l R.P. No. 12/1964, p.257 (para. 1064 fc)).
Ibid. (para. 106(d)).
Ibid. (para. 106le)).
+ IV, pp. 385and386.
"II, pp. 466and 467.
IV,p. 385.and vide III. p477.
mepartmental information.
111PP. 449-451. REJOINDER OF SOUTH AFRICA II9
1964,and it has since been decided to institute a second such bursary as
from 1965 for the same purpose l,viz., to encourage Native students,
who have thus far not succeeded in winning any of the merit bursaries
open to al1students.
Respondent points out that the Odendaal Commission, while notin
that the demand for vocational training "has not been encouraging" , B
has nevertheless, in vjew of the general development programme which it
proposes for the Native groups of the Territory, recommended that
facilities be established for training in agriculture and animal husbandry,
and also for various types of technical training. Its recommendations
provide that-
"[t]echnical training be continued at the Augustineum, notwith-
standing the small numbers at present making use of such training,
and also thal provision be made for commercial subjects and, pos-
sibly, training in mechanics 3."
"Training in agriculture and animal husbandry be provided in
collaboration with the Govemment departments concerned for (a)
the Herero-Damara complex and (b) the Ovambo-Okavango com-
plex 4."
"Atechnical training centre be established in Ovamboland (possi-
bly on the same site as the Government training school) for formal
technical training after Std. VI, initially concentrating on training
in brick-laying, woodwork, tailonng, wickerwork, leatherwork, com-
mercial subjects, mechanics, etc., with further provision for training
as social workers, assistant stock and health inspectors and other
courses for which the practical necessity may anse during the new
phase of development
"In addition to forma1 technical training, short directed courses
be arranged, particularly for adult employees, to increase their effi-
ciency in the practical performance of their duties, for instance
courses in management and administration, commercial. practice,
mechanics, building, simple engineering, such as the construction
and maintenance of ordinarv roads, dams, etc. 6"
50. In regard to the extension of educational facilities as proposed by
the Odendaal Commission, Respondent draws attention to its decisions
on the Commission'sproposals. With respect to the nature of educational
services, it was decided in general-
"... to give effect to the Commission'srecommendations conceming
the extension and improvement of the nature of the educational
semices, whereby wider and better educational opportunities will
be created, particularly for the non-Wte population groups '",
and to leave decisions con&ming details to the educationa~ authorities.
In regard to the development of educational services generaliy Respon-
dent's decision is that-
1 Departmental information.
a Ibid. (para. 1080).59 (para. 1079).
Ibid. (para. 1081).
Ibid. (para. roSz),
6 Ibid.(para1083).
Vide IV, p208. SOUTH WEST AFRIC-4
". . provision will be made for more advanced and greater numbers
of schools,hostel facilities and facilities for the training of teacherç.
This applies mainly to the areas of the non-White groups, where
the Commissionestimates that expenditure on schools, hostels and
training centres will amount to R3,500,000 during the first five
yearç l."
51. In conclusion: Respondent re'ects Applicants' allegation that the
present difference in facilities avaii)le to European and Native students
in the Territory is due toany "larger policy" as described by Applicants 2.
Respondent has shoivn in the Counter-Memorial3 that various factors
have contributed to retard the development of Native education in the
Territory, and it isdenied that courses and bursaries at present available
are the "result of Respondent's larger poiicy concerning the position of
the 'Native' in the 'European' ecoiiomicworld, or, in the alternative, the
level of skill required or desirable in the development of the 'Natives'
own 'communities' The views expressed by Dr. Verwoerd in the pas-
sage quoted by Applicants from his 1953speech in the House of Assem-
bly are to the çame effect as some of the views expressed in his 1954
speech in the Senate 4,and have already been dealt'with. As has been
shown, Dr. Venvoerd stated that whiIst the Bantu couId not expect to be
absorbed in the European cornmunity above certain levels, al1 doorç
were open to him in his cammunity ',the development ofwhich was one
of the aims of Respondent's policy In Respondent's submission there is
no basis forApplicants' suggestion that there is a Limitto the level of skill
"required or desirable in the development of the 'Natives' own 'com-
munities' ".
1 Ibid., p. 386..
III, pp407 fi.
Vid6 Chap. II,para.8.
Ibid., para. 5. CHAPTER IV
THE EXTENTOF EDUCATIONIN-THE TERRITORY
A. General
I. In section (C) of Chapter IV B.3.c.I of the Reply Applicants deal
with the "Estent of Education in the Temtorf"' In the introductory
passage of the said section Applicants say that-
". ..the exleltof education in the Territory is a violation by Res-
pondent of its obligation to promote totheutmostthe well-beingand
progress of the inhabitants l".
This charge is then particularized as follows:
"Respondent has failed in this dynamic obligation in at least
three respects: (1)it has adopted apolicy of 'laisser-faire',relying on
the 'Native'population to take the initiative with respect to educa-
tional advancement; (2)it has failed to attempt to introduce com-
pdsory education; and (3) it has spent, and continues to spend,
disproportionately small arnounts of money on 'Native' education
as compared to 'European' education 2."
Respondent deals with these allegations in the same order and under
the same headings as Applicants, llz.,
Laisser-faire;
Compdsory education ;
Disparity in expenditure.
B. Laisser-Faire
2. Under this heading Applicants deal with what they te-
". ..the implications and consequences of Respondent's policy of
(a) ostensible cornpliance with the 'feeiings' or 'wishes"of the
'groups' concemed,coupled with (b) reliance upon the initiative of
such 'groups' in detemining the extent of education in the Terri-
tory 2".
~efore commencing their discussion of the above matiers, Applicants
quote certain remarks made by a member of the Permanent Mandates
Commission,M. Rappard, in 1930c ,oncerning education in South l17est
Afnca =. These remarks were made in connection with one aspect of
Native education, viz., the cstablishment of schools in the Native re-
serves of the Police Zone,which presented serious practical difficulties in
the early years of the Mandate. As will be indicated below, the Chair-
man of the Commissionseems to have held the view thêtM.Rappard's
views were not justified.
3. In itç repoEtto the Council ofthe League for the year 1929 Respon-
dent referred to the difficii1tiesofestablishing schoolsin the reservesin the
followingterms:
Ibid., p387.87.122 SOUTH WEST AFRICA
"The difficulties in this connection may be sumrned up in the
followingpoints: (1)Many of the inhabitants of the reserves lead a
nomadic Life; (2)there is a good deal of opposition to education and
schools; (3) schools for natives stand under the local control of
missionaries and the mission societies do not see their way clear to
erect buildings on ground which does not belon to them. The Ad-
ministration, on the other hand, is not prepare % to cede the neces-
sary round in reserves to mission societies, al1the more because it
wod f have to grant the same facilities to ail the different mission
societies once they have adopted the principle l."
The report mentioned that the foilowingarrangement had been made
for establishing schools:
ultimately came to the following decisiontio:sIf there is a desire for
education in a reserve the parents have in the first instance to apply
to the Local Council.If the Councilapproves of the application they
rnayrecommend it to the Administration and indicate at which
centre the school is to be built and how large it should be. Ifthe
Administration agrees the building rnay be built out of the funds of
the resen7e =."
"If a school building has been erected in the manner indicated
above the parents are at liberty, with the approval ofthe Adminis-
tration, to invitea hIissionSociety to take charge of the schooluntil
such tirne as the Administration is prepared to establish Govern-
ment schools for natives 3."
After M. Rappard had expressed his views as recorded in the passage
quoted in the Reply ',and in answer to questions put by M.Rappard and
other membersof the Commission,Reçpoiident's representatives, Messrs.
te Water and Courtney Clarke, suppliedthe Commissionwithinformation
regarding difficulties encountered in developing education in the Terri-
tory generally, and in the reserves in particular. Thereupon M. Rappard
is reported to have-
".. .repeated that the entire object of his rernarks was to help the
Administration in its extremely difFrculttask. He hoped that it
would be able to assist the Missions stiii further and that the
L10,ooogranted for education would be appreciably increased
According to the Minutes the Chairman of the Commission then
pointed out that-
"... the natives in South West Africa were for the most part in a
very low state of civilisation. That being so, he did not think it wise
for the Commissionto showtoo great impatience or-tobetoo exacting
in so far as the education of natives in the reserves was concerned.
Such education inevitably took a long time, and was atthe moment
in the hands of the hlissions
The Chairman also indicated that he appreciated that existing conditions
l Ibid.p.-513(para. 329).a. 328).
3 Ibid., p. 5(para.330).
IV, p.387,
5 P.M.C., Min., XVIII, p. 137.Mr. &urtney Clarkeisreported to have replied
".. .that it would no doubt be increased as the country developeadnd as the
financial position warranted" (ib.d.)
"id., p. 138. REJOINDEROF SOUTH AFRIGA 123
ruied out rapid progress, particularly in the reserves. He is reported to
have stated that-
"[hlequite understood MlleDannevig's desireforschools in the towns.
That was certainly a recommendation ~vhichthe Commission could
make. He did not think, however, that it should be too insistent in
regard to education as a whole, for the mandatory Power must be
ermitted to organise this branch of its activity calmly and surely.
qhe suggestion of M.Rappard that alarger subsidy should begranted
to the Missions mi ht, no doubt, be considered; but it was too
much to ask the A %ministration to undertake, under existing con-
ditions, the direct education of natives in the reserves. The explan-
ations of the accredited representative seemed to the Chairman
to be very just and he did not tvisiç&Ir.te FVaterand fiIr. Courtney
Clarke to go away with the impression that the Commission was
asking for the impossible l."
4. Respondent's report for the next year (1930 contained a review of
education in the Territory. In the report it was stressed, inter dia, that-
"[tlhe educationist who wishes to achieve success must first gain
the confidence of the natives. Afterthe bitter wars of comparatively
speaking recent yearç between European and native inthis country
this is not an easy matter. . .2."
The report also contained a memorandum by Dr. Vedder in which
he dealt,intea rlia, with the establishment of schoolsin the reserves. In
regard to the procedure of establishing such schools, he stated:
"Now the usual arrangement is that the Mission has to erect the
school builduig. Government is, however, not in the position to cede
building sites in the resenres toa iiliçsion,as this would be contrary
to the Resen~e Act. The Mission, on the other hand, cannot erect
any building on rented ground. Nevertheiess a way out of the diffi-
culty has been found along the following lines:
(1)The Council of the Reserve, which is composed of natives, may
apply to Government for permission to erect a school building with
money taken from the Reserve Fund, which building then solely
and wholly belongs to the inhabitants of the Reserve.
(2) The Council of the Reserve thereupon gets into touch with a
Mission Society in order to obtain the teaching staff from it and to
place itself under its special protection.
(3) The Administration then trcats çuch a school in exactIy the
same way as it does any other Mission schoo14."
Dr. Vedder also pointed out in this memorandm that a number of
reserve schools had already been established in accordance with the said
arrangement and that others would shortly be opened, but that diffi-
culties of various kinds remained 4. In this regard it was stated in the
memorandum :
"These difficultieshave their origin not so much in the attitude of
the Administration or the Mission,but in the peculiar attitude of the
inhabitants of the reserves. The Hereros especially adopt a recalci-
l P.M.C., Min.. XVIII. p.138.
U.G. 21-1931, p. 51 (para, 313). Videalso IIp.410.
U.G. 21-1931. pp. 59-62As to Dr. Vedder,vide IIIp.409.
U.G.zr-1g31, p.60.124 SOUTH-WEST AFRICA
trant attitude in regard to this new branch of the çchool system. As
the possibility is afforded them to lead their lives in the Reserves in
the same manner as their forebears had done of yore, they think
more of their cattle than of their childreri. They, moreover, fear that
the scIiools in the Reserves will prevent them from employing
their children as cattle herds. Hence the task has arisen for the
Mission first of al1 to prepare the soi1by their missionanes and
itinerant teachers and to impress on the parents the significance of
the school for theirlater lives'."
The last sentence in the passage quoted above is important as showing
how, in the early years of the alandate, development of education was
in fact initiated-i.e.,by the Jlissions. In the annual report in regard to
which M. Rappard made hisaforementioned remarks, Respondent stated,
inter alia, that before schools could be established in reserves, Native
parents had to show a desire for education and make application for a
school to their local councjls. Respondent never intended to suggest,
however, that no measures were taken to arouse an interest in education
amone parent communities, or that nothing was done to persuade local
councils to take steps to have schoolseçtablished in their reserves. As is
apparent from the situation aç described by Dr. Vedder, a request from a
reserve community or board for the establishment of a school was, of
necessity, preceded by agood deal ofexternal exhortationand persuasion.
5. The arrangement referred to in Respondent's aforesaid report and
in Dr. Vedder'ç mernorandum was made because ofthe practical diffi-
culties rnentioned therein, and in order to avoid the possibility ofdiçsatis-
faction or subsequent lack of CO-operationbecause of the use of land or
money belonging to reserve inhabitants for a purpose of which they did
not a prove.
In $.espondent's submission, therefore, there waç no justification for
N. Rappard's suggestion that the aforesaid arrangement pertaining to the
establishment of schoolç in reserves "appeared to throw the initiative
.. .of obtaining education on to the native". There was, likewise, no
basis for his suggestion that the arrangement appeared to throw "the
sole cost of obtaining education" on the Native. There is, also, no foun-
dation for Applicants' treating M. Rappard's words as indicative of
Respondent's "attitude toward 'Native' education" 3.
Applicants Say that M. Rappard's remarkç "treat two aspects of Res-
pondent's attitude toward 'Native' education" 3."In the first place", they
Say, "Reçpondent has professed extraordinary solicitude concerning the
attitudes of the 'Natives' toward education, and has shaped its policy in
deference to such attitudes" 3.The allcgation is not substantiated in any
way, and Respondent says that it has no substance.
Applicants do not mention the second aspect of Respondent's policy
which the statement by M.Rappard isalleged to have"treated". Presum-
ably it isRespondent's alleged "lack of initiative"3. This lackof initiative,
Applicants Say, reveals itself "with respect to methods of instruction,
compulsory education, wider syllabuçes, mixed schools and intensified
education" 3. What the expression "mctliods of instruction" is intended
to signify, is not known; Applicants have noïvhere dealt therewith. The
V.G. 21-1931. P.60.
Vids para. 3. supra.
"IV, p.387. REJOINDER OF SOUTH AFRICA 125
same applies to "intensified education" l.Applicants are saying, therefore,
as Respondent understands them, that liespondent's aIlegcd failure to
provjde "wider syllabuses" for Natives and to establish "mixed schools"
1sevidence of its "lack of initiative", Le.,its attitude of laisser-faire. The
allegation is a curious one. Elsewhere in their Reply Applicants ascribe
the alleged lack of "wider syliabuses" in the case of Natives to a conscious,
or deliberate, policy of restricting opportunities for Natives Similarly,
aliegations previously made in regard to the policy of separation (also in
education) cannot be reconciled with an allegation that such policy is the
result of laisser-faire 3.
6. Respondent deals next with Applicants' allegations regarding
alleged "implications and consequences of Respondent's policy of ...
ostensible cornpliance witli the 'feelings' or 'wishes' of the 'groups'
concerned" 4.
Applicants' complaint in this connection seems to be thnt liespondent
has not removed, or not done enough to remove, certain "attitudes" of
the Native people in the Territory, including "attitudes" in regard to
mixed schooling. In support of their complaint, Applicants refer to infor-
mation which \vas supplied by Respondent in the Counter-Mernorial
when dealing with one of several factors which have served to retard the
development of Xative education in the Territory 5. IVhilst refemng to
such information, homever, Applicants ascribe to Respondent allegations
which it did not make, thereby creating a false impression of the present
extent of attitudes unfavourable to education. They ascribe to Respon-
dent a statement that "the'Nalives' /eeElittle 'need' for schooling" as if
Responderit stated that al1 Natives (or Natives generally) still felt little
need for education. Respondent iieither said nor suggested any such
thing. Whilst Respondent stated that there were still many parents who
did not send their children to school, or else sent them to school for only
short periods 7,it also showed that good progress had been made in the
past, aiid that education was now being estended at an ever-increasing
rate Applicants also make the untrue allegation that "[alccording to
Respondent, the situation remains unchanged today" !',Le., unchanged
from the earlier days of the Mandate when Respondent reported to the
Permanent Mandates Commissionon attitudes unfavourable to education
among the Native communities of tlie Territory 1°.
Having made these misleading statements, Applicants proceed to say:
"Thnt such attitudes should still exist to any significant degree, more
than Cortyyears afterthe Mandate's inception, isan accusation in itself 9."
And they add ". .. that Respondent should rely upon such attitudes
to justify passivity and negligence compounds the offence" 9. These
l Cornpulsory education is dcalt ivith in paras.14-21,infra. R
IV, pp. 383 and 386. Videalsop. 277.and 1, p. 159(para. 186).
Vide IV, pp. 362-370; also p. 373, where it is alleged that Respondent'policy
of having separate schools forEuropean, Coloured and Xative children nas "de-
veloped only afterthe Second \Vorld \Var".
IV, pp. 383-389 and videpara. 2.supra.
Vide IV,p. 388, footnotes I and 2,and III,pp. 407-410.
IV, p.358. (Italicsadded.)
111,pp. 393, 409 and 461.
Vide.e.g., III, pp394, 443-444 and 461.
IV, p. 33s.
la Vide III, pp408-qog.126 SOUTH WEST AFRICA
allegations have no substance. Respondent does not propose to discuss
the extent, or "degree", of such negative attitudes as were mentioned
by it in the Counter-Mernorial. It is unnecessary to do so. Respondent
points to the progress which has been made, and which is continually
being made. It appears from the progressively increasing percentage of
Native children who attend school that attitudes involving opposition
to education are steadily being overcome.
Furthemore, for attitudes of the kind mentioned in the Counter-
Memorial to remain in some strength among some inhabitants of the
Territory even at the present tirne, is quite understandable whcn regard is
had to conditions at the inception of the Mandate, and to the difficulty
of removing such attitudes in conditions commonly found in Afnca.
That such attitudes are still common in Africa as a whole, appears clearly
from the Counter-hlemorial 2.
7. Applicants also quote a passage from Respondent's Counter-
hlernorial dealing with espenditure on education. Its relevance to the
matter in issue is obscure. The passage referred to "various factors and
conditions which inhibited the introduction and development" ofNative
education ',and not merely to "attitudes". For this reason alone it can-
not validly be advanced as an illustration of Respondent's alleged
reliance on negative attitudes displayed by Native inhabitants. The
suggestion ofsuch reliance is, in any event, denied, and Applicants' sub-
missionin regard to expenditure, made a proposof the passage quoted, is,
in Respondent's submission, wittiout substance.
8.Applicants conclude their allegations in this context by statingthat-
"[tlhe extent to which Respondent has permitted its attitude of
Iaisser-faireto limit the extent of education in the Territory-both
with respect to isolating 'group' from 'group' and with respect to
instituting enthusiasm for education-is made clear in Respondent's
own words ... 3"
and then follownine qiotations from Book VI1 of Respondent's Counter-
Mernorial. These quotations are, therefore, advanced as evidence of
the alleged extent to which education has been limited by Respondent's
so-caUed policy of laisser-faire.
An analysis of the quotations reveals the foIIowing:
(a) Some of them (viz., the first, third, fourth and ninth) refer to
separation in the education of the European, Coloured and Native
groups. In the first it is stated that the introduction O£ a mixed
school system at the inception of the Mandate would have run
directly counter to the prevailing order and that it would, for that
reason, have failed. It 1s not clear to Reçpondent ~vhether Appli-
cants' suggestion is that mised schooling should have been intro-
duced, even iffailure was inevitable. If so, Respondent rejects the
suggestion.
In the third, fourth and ninth quotations the desires of the
inhabitants of the Temtory are referred to as only one operative
III, pp. 443-444 and 461. Vide alsopar21,infra.
Videibid.pp. 396-406.
3 IV, p. 388.
4 VideIII, p. 535 (par24 (CI a)d,the reference therein to pp. 407-4(paras.
3-30}. REJOINDER OF SOUTH AFRICA 127
factor in the system of separate education. This appears clearly if
the quotations in the Reply are read in their full context in the
Counter-Mernorial l.
Nowhere in the Cornter-Mernorial are the desires of the in-
habitants referred to as the sole reason for separate educational
facilities. Kespondent says, furthemore, that it is in no way wrong
to have regard to the xvishesof the inhabitants in regard to separa-
tion in education.
(b} One quotation, the second, refers to the desires of Native groups
to have separate facilities. Respondent repeats that there is nothing
irnproper in paying regard to such desires on the part of the Native
groups, and çays, furthermore, that the matter is not concerned
with any limitation of the extent of education.
(c) Of the rernaining four quotations, two (the fifth and the seventh)
refer to the fact that many Native parents still do not send their
children to school because they see no good in schoolç. Respondent
has already dealt with this matter 2.
One quotation (the sixth) refers to Respondent's statement that
Native parent comrnunities have on occasion asked for compdçory
education, but that it almost invariably appeared that they did not
appreciate what a system of compulsory education entailed, and
that in Respondent's view the introduction of such a systern before
parent communities desired it and appreciated what it entailed,
could "only create hardship and cause resentment" In Kespon-
dent's submission there is nothing improper in wishing to avoid
hardçhip and resentment on the part of the Native inhabitants of
the Territory. Furthemore, as has already been stated, the school
attendance rate in the Territory is increasing at a satisfactory rate
and when regard is had also to other difficulties, particularly the
shortage of teachers, there can be no justification for a premature
introduction of compulçory education.
The rernaini~igquotation (the eighth) refers to an attitude found
amongst parents in the Eastern Caprivi Zipfel that "by attending
school their daughters become lazy, and, accordingly, less attractive
to prospective husbands" +.
Attitudes of this kind in regard to the education of girls are not
easily rooted out amongst primitive communities, and are still
prevalent in parts of Africa Respondent says that the fact that
l Vide III, pp.375-376 (paras.49 and 50) in regard to the third quotation;
ibid., pp. 375-378 (paras. 49-54and 381-382 (paras. 60-62) in regard to the fourth
quotation; and ibid.,p. 513 (para.5 (b) and the paragraphs referred to therein) in
regard to the ninth quotation.
Vide para. 6.supra.
III, p. 393.
+ Ibid., p. 46i.
' Iba'd.,pp. 397-393. Vide also the following statement in the report of the Con-
ference of African Stateon the Developmcnt of Education in Africa, held at Addis
Ababa in 1961: "Research indicates that:girls make up less than 30 per cent. of the
present total African primary schooI enrolment and about 22 percent. of the
secondary school enrolmznt. Unfortunately. the factor of conservatism in certain
areas hasslowed the expansion of education for girls becausof itsimngined eRect
on established tradition;." {UNESCO/ED/i8r, Chap. 1, p.6 (para. zr).I)n the case
of Liberia and Ethiopia girls made up 24 percent. and21prr cent., reipectivdy, of SOUTH WEST AFRICA
girls constitute 25 per cent. of the children who attend school in
the Eastern Caprivi ' shows,when regard is had to the brief history
of education in that territory, that good progress has been made,
and submits that Applicants' cornplaint is without merit.
g. In regard to Respondent's alleged reliance on the initiative of the
groups, Applicants Say that Respondent's policy is one of "professed
reliance upon the initiative of the 'Xatives' to promote their own material
and moral well-being and advance their own social progress" '.Respon-
dent never professed any such policy. Applicants, it seems, rely on the
followingstatement in the Counter-Mernorial fortheir aforesaid allegation :
"Respondent's task isin essence one of advising, encouraging and
assisting the various groups by providing facilities consistent with
their needs and guiding them towards self-help. Whether, awd to
what extent, the groups make use of the opportztnitiesofleredrests
largety with bhewtselves.They will, however, continue to receive
sympathetic assistance and guidance from Respondent 3." (Italics
added by Applicants.)
These words clearly do not mean, and were not intended to mean, that
Respondent relies "upon the initiative of the 'Natives' to promote their
own material and moral well-being and advance their own social pro-
gress". Nor do they afford any justification for saying that Respondent
"appear[sJ to throw the initiative ... of obtaining education on to the
native" 4. Applicants' main objection is, apparently, to the words they
have italicized, but in Kespondent's submission no valid objection can
be taken thereto. Surely it is tnle to Say of any perçon who is given
advice, encouragement, guidance, assistance and facilities consistent with
his needs that it will rest largelywith himself whether, and to what extent,
he makes use of the opportunities offered to him 5.
Applicants, after quoting the words "appear[s] to throw the initiative
.. . of obtaining education on to the native'' from M. Rappard's afore-
mentioned remarks G,allege: "This applies not only to the interest shown
by the 'Natives' in the education availahle but also, more specifically,
to the system of 'comrnunity schools', to the question of compulsory
education, and to the financing of education 4." These allegations are
denied.
IO. In regard to the comrnunity school system, Applicants' cornplaint
is that "[tlhe 'Natives' have ... been delegated the duty of promotion
of their own social progress which, in the Mandate, was entrusted to
Respondent" '.By quoting part of a sentence in one of a number of
paragraphs dealingwith the system of community schools, and by assign-
primary school enrolments in the late 1950s. (Unesco: BasicFncts And Figures
1960(19611p,. 29.1
III, p.461.
2 IV, p.389 and vide p. 337 (infine).
3 Ibid.Quoted from III, p. 537.
+ IV, p. 389.
5 If this is not so. the following statementan oficial publicationof one of the
Applicant States makes no sense: "We cannot fight in raising the standardsof our
schoolswhen we have teachers who ... mil1not avail theniselveof the opportunity
to learn." Vide III, p424.
6 Vids para.2, supra.
'IV, p. 390. REJOIKDER OF SOUTH AFRICA 129
ing thereto a meaning which it does not, and was not intended to, bear.
Applicants try to create the impression that Respondent has done
nothing less than to admit that it has rid itself of theduty to promote the
progress of the Native inhabitants of the Territory, and that it has dele-
gated that duty to the Natives themselves. The words they quote are:
"it is hoped that al1Native parent communities will in time utilize
to the full the opportunity which has been given them of promotin
educatimrhr~ughtheirowneflorts 1". (Italics addcd by Applicants'
Respondent pointed out in its Counter-Memorial that the system of
community schools gave parent communities an opportunity of playing
a part in the development of education, and that it contributcd, at the
same time, to their social and political development. Respondent stated.
interalia,
"[tlhe system of community schools offers Bantu parent communi-
tieç the opportunity of playing an active part in the control of the
education of their children, and at the same time affords them an
excellent training ground in self-management and citizenship 2",
and quoted frorn a book wntten by a foreign author in which the follow-
ing is said about the system: "The system as a whole is thus certainly on
this level, a positive contribution to the development of the body civic
of the Bantu ... 3". The words quoted by Applicants appear in the fol-
lowing paragraph :
"After its experience thus far of community schools in Ovambo-
land, the Administration has every confidence that the system will
be a success. School cornmittees and school boards, acting under the
guidance and with the advice of the Administration's officiais,are
doing good work, andit ishoped that all Native parent communities
will in time utilize to the full the opportunity which has been @\-en
them of promoting education through their own efforts '."
It is clear from what has been stated above that Applicants' complaint
is without substance.
Respondent says, furthermore, that its system of community schools
serves asan instrument in developing Native communities to the point
where they will be able "to stand by themselves" 5.
rr. Applicants' next allegation reads as follows:
"Respondent admits that the 'Native' parents oCten cünnot afford
to bear the boarding expenses of their children at hostels and sug-
gests that this, together with the problem of teacher shortage, is a
reason ~vhy'in the case of Native education such facilities have thus
far been found practicable only to a very limited estent' 6."
It is not stated in what respect Respondent is relying "upon the initia-
tive" of the Xative inhabitants. Presumablj? the suggestion is that a
shortage of teachers and the inability of parents to pay boarding fees
"II,, p.370.9-390. vide 111,p. 371.
Ibid., P371.
+ Ibid. p. 372.
Art. 22 (r)of the Covenant.
IV, P.390.I30 SOUTH WEST -4FRIC.4
cannot be a valid reazan for a shortage of koarding facilities. If 50, the
suggestion is clearly untenable. -
12. Appricants purport to see a further example of "reliance upon the
initiative" of Native inhabitants in the fact that in the Eastern Caprivi
Zipfel each of the two main tribes "has shown itself prepared to gant
bursaries from tribal funds to students who wish to be trained as teach-
ers" l. Applicants Say that this is "not altogether surprising, since
Respondent itself has only anted two bursaries for such purpose" *.
In the Counter-Memorial F espondent referred to the short history of
education in the Eastern Caprivi, and to sorne of the difficulties which
have retarded development It also referred to progress which had been
made, and, as "[a]n indication of a grow-inginterest in education" 4,
it mentioned the aforementioned fact that the tribes had shown them-
selves prepared to gant bursaries to prospective teachers. This did not
corne about, as Applicants suggest, because of the small number of
bursaries granted by Respondent, but was the result of efforts made by
officialsto arouse greater interest in education on the part of the Native
authonties. Their willingness to assist education in the area shows that
they are being helped to help themselves, and this, in Respondent's sub-
mission, constitutes progress
13.Applicants conclude by saying :
"Similarly, Respondent's cornplaints about 'lack of support' or
'lack of interest' in various educational ventures undertaken with
respect to the 'Native' groups resound of laisser-faire and are
wholly incompatible with the dynamic nature of the Mandate 6",
and then they refer to certain features of Native education which were
mentioned by Respondent in the Counter-Mernorial, viz., early school-
leaving; small numbers in the senior secondary course; small numbers
in industrial courses; the slow response to opportunities offered for
training as nurses; and early loss of interest in evening classes for adults.
It is not clear what Applicants intend to convey. In the Counter-
Memorial Respondent referred to carly school-leaving and other mani-
festations oflack of interest in education, but it iç not appreciated how
Respondent's references thereto-"complaints", according to Applicants
-can be said to "resound of laisser-faire" and to be "incompatible with
the dynamic nature of the Mandate". In Respondent's submission
Applicants' allegation does not make sense. Thc fact that Respondent
l IV, p. 390, quoted from III, p. 462,
IV, p. 390.Vide also III, p462.
' III.pp. 459-462.
* Ibid., p.462.
' A Junior Ccrtificate coursewas introduced in the Eastern Capriviii1964 when
a Form 1class was instituteat the Roman Catholic school at Katima Mulilo. Each
of the IO pupils who enrolled received a bursary of R3o from the Department of
Rantu Administration and Development. The cost of the buikdings needed (R8,ooo)
to accommodate the extra classes itobe paid by the said Department. The airn is,
also, to institutteacher training at: this school. For this reason Respondenhas
decided to award annually 15bursaries of R3o each to students taking secondary
courses at the above-mentioned school, and to do away with the two bursaries which
are awarded at present for study in South Africa. Three more community schools
information.)hed in1964.bringing the total number of schools t20. (Departmental
IV,p. 390. RE JOlNDER OF SOUTH AFRICA 131
referred to difficulties'which are encountered in regard to Kative educa-
tion does not rnean that Respondent is in any may responsible, or that it
admits responsihility, for such difficulties. Nor does it mean that Res-
pondent in any way reliesupon "the initiative" of the Native inhabitants.
C.CompulsoryEducation
14. AppIicants cornmeilce their discussion of this subject with an
allegation which is not borne out by the material quoted by them in
support thereof. The allegation is probably made with the intention of
creating the impression-an impression whichwould be entirely wrong-
that the Permanent Mandates Commissionheld the view thatthe absence
of compulsory education for Xatives in South West Africa constituted
a dereliction of duty on Respondent's part. Applicants' allegation reads
as foliows:
"The Permanent Mandates Commission made clear its view that
compulsory education for 'Natives' was an important aspect of the
duty to promote the well-being and social progress of inhabitants of
Territones under Mandate l."
ofthe Commission:f they quote the foIIowingtwo extracts from the Minutes
"Mme Bugge-Wicksell said that she had no question to ask, but
desired to express her admiration for the steps taken by ~lustraliaas
regards education in the mandated territory [Nauru]. Shewas happy
to note that tliere was compulsory education for children from 6 to
16 years of age and that the proportion of children who attended
schoolswas roo per cent. . .2"
"3Ille Dannevigdrew attention to the provisions of Article 2of the
decree reorganizing officialeducation in [French] 'Togoland ...
'School attendance may be made compulsory for al1 children
betmeen 7 and 12 years of age wherever the number of schoois
allows. It is always compulsory for the children of chiefs, notables
and officials'2."
It isobvious fromthe passages quoted-and the context in which they
appear in the Minuteç of the Commission contains no contrary indi-
cation-that the Commission did not express the view, as alleged by
Applicants, that it regarded compulsory education as an important
aspect of the duty to promote the well-being and social progress of the
inhabitantsofterritones under Mandate. It goes without saying thatthe
Commission would have welcorned a situation in which compulsory
education was feasible, as it expressly did in the case of Nauru, but that
is afarcry from saying that it thought such education an important part
of a Alandatory's duty, irrespective of what the circumstances in a
particular temtory might be. The Commiçsion no doubt knew that
circumstances in most mandated territories were such that compulsory
education, as a system which could actually be put into practice, could
be no more than a distant ideal. Indeed, on the occasion referred to in the
second quotation above (i.e., regarding French Togoland), MlleDannevig
imrnediately asked the question ". ..whether any part of the temtory132 SOUTH WEST AFRICA
had enough schoob to enable this to be carried out" I.The reply given
to the question is recorded as follows in the Minutes, viz., "that the
rnandator Yowerwas anxious that there diould be the greatest possibIe
number Of pupils and schools, and the only liniits set to the rcalization of
these aims were material possibilities" =. Respondent points out that
in 1938-the quotation dates from 1934-only about 6.05 percent. of the
school-age population of French Togoland (or slightly less than 1.4 per
cent. of the wholepopulation) attended school
The Permanent Mandates Commission, as stated above, no doubt
welcomed the introduction of compulsory education-particularly
where it could be made to work successfully in practice-but it would, in
Respondent's submission, have been the first to admit that Nauru was an
exceptionalcase. This smallisland, about 5,263acres in extent and with
a circumference of approximately 12 nil lehad, in 1920, a population
of only 1,08 4,and it cou18not possibly have presented the difficulties
found in a country like South IVest Airica-r French Togoland
15. After their reference to the Permanent Mandates Commission, as
set out above, Applicants proceed to Say that-
"[slince the dissolution of the League of Nations, the organized
international comrnunity has frequently emphasized the importance
and desirability ofcompulsory education 6".
Applicants do not refer to any authority in support of this statement,
but Respondent accepts that every responsible government fully realizes
"the importance and desirability of compulsory education". Respondent
would add, however, that every government tnust nevertheless have due
regard to al1factors which have a bearing on the question of compulsory
education before decidingon its introduction.
Respondent points out in this regard that, according to a Unesco
publication, only nine of some 40 African countries listed had a system of
cornpulsory education pertaining to indigenous inhabitants (i.e., ex-
cluding Europeans, Asiatics and Coloureds) as at the end of the 1950s '.
Respondent has not attempted to establiçh what percentage of school-age
children attended school in each of these African countries at the time
stated,but points out that in the case of one country mentioned as having
P.M.C., Afin., XXVI. p. 115.
Ibid. The decree referredto in the quotation was intended to apply only to
"official"(i.e., Government) schools, and not to mission schools. "Thee manda-
tory Power had no means of influencing the mission. .."(P.?M.C.,?Idin.XXVTII.
p. 641,and the statement that the missions thamselvesdecided "xvhere to exercise
their activities"(P.M.C., Min., XXXIV, p. 125.)
3 In 1938there were in Togoland 10,857 pupils in al1types of schools. The popula-
tion consistedof 780,170 Natives, 470 Europeans and 59 Spians. (Respondent as-
sumesthe school-age population to constitute23per cent. of the total Xative popu-
lation: vide III, p. 462.) Vide alsoRapport anntbsl adressé par le Gouucrnement
francais au Consei leEu Sociltddes Nationssur t'administratios sousi~zandatdu
territoirdu Togopour l'année1938 (1938)~ pp.104 and r I1-113.
There werc, also, 597 temporary Chinese workers on the island(including z
women and 3 children). Vide P.IW.C., Min., II, p. 50.
In 1962, it may bepointed out, the total population of Naurwas 4,849 (com-
posed of 2,516 Nauruans, 1,173 other Pacific Islanders, 748 Chinese and 412 Euro-
peans): vide G.A.. O.R., Eighteenlh Scss., Suppl. .(A/5504), p.22.
IV, p. 391.
' Unesco, Basic Facts and Figures 1~68 (rg6r),pp. 166-167. REJOINDER OF SOUTH AFRICA 133
compulsory education for children from 6 to 14 years of age, viz.,Chad,
it appears that only about j.6 per cent. of the school-age population
attended school in 1958 o,r about 1.3 per cent. of the total population l.
In the case of Togo, referred to by Applicants 2,the corresponding per-
centageç in 1958 would appear to have been about 28.6 and 6.6 3.
16. Respondent has already referred to the question of compulsory
education and school attendance in one of the Applicant States, Liberia +,
and it is not intended to repeat what has already been said. Respondent
points out, however, that whilst this State, as one of the Applicants in
these proceedings, stresses that "the organized international community
lias frcquently emphasized the importance and desirability of cornpulsory
education", a 1958 publication of Unesco,an agency of thisorganization,
reveals that, because of local conditions, it would not serve any purpose
to enforce this country's 50-year-old compulsory education law. It issaid:
"Compulsory education under the Education Act starts for al1
children at the age of 6 and ends at 16. Quite recently, the problem
of compulsorv education has shifted from one of attendance to that
of providing accommodation and facilities. Consequentljr there is no
obvious need for the enforcement of this law
Respondent points out that in 1961-19 a62out 22 percent. of the schooI-
age children of Liberia attended school 6. In 1958 the percentage must
have been smaller 7.A shortage of teachers, as Kespondent has shown
has been one of the main difficulties-presumably it also played a
significant part in tlie decision that there was no "need for the cnforce-
ment of this (i.e., the compulsory education) law".
The Ethiopian Government, liespondent assumes, has also been
prevented by practical difficultics from showing in practice, viz., by
pnssing and putting into effcct a compulsory education law, that it is in
full agreement +th the emphaçis which the "organized international
community" has frequently placed on the "importance and desirability
of compulsory education".
17. In the case of South \lJest Africa, homever, Applicants take up the
attitude that no account should be taken of factors which have elsewhere
been considered of sufficient weight to affect the question of compulsory
education. They say, in effect, that the difficulties which have retarded
development and, accordingly, affected the practicability of compulsory
education, areeither of Respondent'ç own making, or else the result of its
Unesco, Basic Facts and Figures 1360(1961). pp. 29, 36 and 156. Vide the
prirnary and secondary (includingvocational) enrolmentat pp. 29and 36,and the
totalpopulation figure atp. 156. Ilespondent assumes that the school-age pop-
ulation constituted 23 per cent. of the whole population. Vide III,p. 444.
IVi p. 391.
Unesco. op. cd.,pp. 30, 38 and157: videthe primary and secondary (including
, vocational) enrolmentsat pp. 30 and38, and the total popuIation figure ap.157.
According to this publication, Togo has cornpulsory education lor the sons of chiefs
and officiais (p. 167,and footnote g at I 72)No mention ismade of provisions of
the kind referredto inthe Minutes of the Permanent Mandates Commission: uidc
para. 14.supra.
III, pp.406 and 445.
Unesco, Iorld Suvvey of Edztcation-II: Primary education (1958)p .. 674.
III, p445.
In 1955 it was approximately 3.5 per cent.ibid.
III, p423. SOUTH WEST AFRICA
=34
own lack of initiative. And,mirabile dictzthey see fit to ofier solutions to
problems which they themselves have not yet managed to solve, and
which, as Respondent has shown, are common and not easily solved in
underdevcloped African countries having no tradition of modem edu-
cation.
Applicants' allegations and suggestions in regard to what Respondent
could or should have done in the 'Serritory lare rejected. Save for what is
said in the paragraph immediately helow, Respondent does not propose
to deal with eacIi of these allegations or suggestions. They amount to
repetition of what is contained in an earlier section of the Reply =,and in
no way controvert what is stated in the Counter-hlemorial in regard to
cornpulsoy education and the various factors which have retarded
-ducation in South West Afnca 3.
18. In a paragraph dealing ~4th the shortage of Native teachers in the
Temtory, Applicants conclude their remarks with the allegation that-
". ..Respondent decries the lack of interest or of motivation on the
part of the 'Natives' with respect to vocational, higher, or adult
education; yet Respondent's apartheid policy with respect to job
opportunities in itself pIacesa damper upon any nascent enthusiasm
among young 'Natives' to seek educational opportunities which, as
Respondent concedes, would merely produce 'frustration' 4".
(Footnoteomitted.)
This allegation is not directly relevant to the question of teachers, Save
in so far as it may relate to efforts made by Respondent to raise the
qualifications of teachers in service by means of evening classes 5, lie-
spondent denies, in any event, that statutory rneasures relating to "job
opportunities" have affected teacher training, or enrolments in the
industrial or adult classes referred to in the Counter-Mernorial 7. Appli-
cants' remark in regard to higher education is not understood. In the
Counter-Mernorial Respondent poiiitcd to the fact that secondary
education was of fairly recent origin in the Territory and that the first
students wrote the Standard X examination only at the end of 1960 9.
Respondent points out, furtherrnore, that one cannot reasonably blame
any apartheid measure if a student starts a teacher-training course and
then drops out because he lackç the qualities needed to complete
the course Io.Applicants have previously dealt with the question of
'IV, PP- 391-392.
Ibid.,PP 387-390.
3III. pp. 379-38and 407-4zr.
+IV, p. 392.
VideIII ,.421(para. 30).
6IV, p.392,footnote 5.
7 VidaIII ,p.417-421 (teacher trainingp);.466-467 (industrial courses); and
pp. 489-490 (aduletducation).
9Ibid.pp. 526 (para. 1(cl).1.
10 Vide IV, p. 392, andthe first italicized words in the first quotation in footnote
4.The secondquotation in the footnote relates to the problem of raising the quality
and qualifications of Native teachers,and not to the shortage of teachers. as Appli-
cants suggest. Respondent indicated in the relevant paragraph in the Counter-
Mernorialthat teachers (who were better qualified thas those in the Territory)could
not be importedrom South Africa-hence the oaly solution was to raise the quality
of teachers. anofeducation generally, in the Territory. REIOINDER OF SOUTH AFRICA I3.5
"frustrationJ', and Respondent refers to what it has said in that regard l.
19.Respondent points out that Applicants have apparently, as com-
pared with the position taken up in the Memorials,considerably narrowed
the scope of their complaint in regard to compulsory education in the
Territory. In their Memonals Applicants complained that there was
"compdsory education for al1'European' children of the Territ~ry"~,and
education for "only a small fraction" of the Native children. TIiey
stated that there was compulsory education for European children until
the age of 16 and that "by contrast, education for 'Native' and
'Coloured' childrenis not compulsory" 3.Their cornplaint was, in other
words, that the same system did not apply to Natives asto Europeans.
Applicants nowSay,however, that they-
"... have not insisted in their Memorials, nor do they now insist,
that education be made compulsory for al1the 'Native' childrenin
the Territory +".(Footnote omitted.)
This statement is, in Respondent's submission, not in accordance with
what Applicants stated in the Memorials. Applicants, presumably to
support their ailegation that they did not in their Memonals "insist" that
education should be compulsory for al1 Native children, Say that they
"reaffirm their objection", as stated in the Memorials, to-
". . . asystem of education in whch a far smaller fraction of the
'Native' children wit~n the Territory receive any schooling than in
the case of the 'European' children of the Territory 5." (Italics
omitted.)
This passage, Respondent subrnits, does not support Applicants' afore-
said allegation.
zo. Applicantç'present attitude appears from the followingparagraph
in the Reply:
"This Court is nat asked to decide to what exten t compulsory
education ought to be introduced for the 'Native' children of the
Territory, nor to what extent such s system ought to have been
introduced in the paçt. Applicants submit, however, that the failure
by Respondent, to introduce any compulsory education, on +any
level, for any population other than the 'European', is a manifest
failure to promote the well-being or social progress of the inhabi-
tants 6."
Respondent agrees with what is said in the first sentenceof the passage
quoted above, i.e., that the honourable Court isnot called upon to decide
to what extent compulçory education should have been, or should now
be, introduced. The contention advanced in the second sentence of the
passage, however, is, in Respondent's submission, without substance.
In Respondent's submission, the Court will have regard to the question
whether the weil-being or social progress of the inhabitants of the Terri-
tory haç in fact been promoted, and will not make the existence or
Chap. II. paras. 5-20 supvVide alsosec.E, Chap. X, supra.
Ibid.p,. 153.
' IV,p. 391,In footnote 6 on p391 of the Reply Applicants refeto 1.pp. 153,
154. 160 and 165-16of the hfemorials. Respondent finds no support for Appticants'
present statement on thesepages.
' IV,p. 391.
Ibid.,p.392.136 SOUTH WEST AFRICA
otherwise of a compulsory education law its criterion of progress. Re-
spondent has shown in the Counter-Mernorial, and again in the preceding
paragraphs, that the existence of acompulsory education law in a country
does not necessarily afford a guide to the extent of the progress which has
been made in that country.
Respondent points out, furthermore, that Applicants are not quite
correct when they Saythat Respondent has not "introduced"compu1sory
education for any population group other than the European. As was
pointed out in the Counter-hlemorial l,the Education Ordinance of 1962,
which came into operation in December 1963,gives the Administrator
of the Territory the power to introduce, on the recornmendation of the
Education Department, cornpulsory education at any state school for
Coloured children.
21. Applicants conclude with the allegation that-
". .. Rcspondent's total failme to narrow the educational dis-
crepancy between the 'European' and the 'non-European' chiidren
of the Territory has violated its obligations under Article 2, para-
graph 2,of the Mandate 2".
There is no substance in the allegation. Applicants have not proved any
failure of the kind referred to,let alone a "totai failure", and Kespondent
submits that there has not been any such failure. Respondent does not
propose to dcal with this allegation in any detail. It refers the honoutable
Court to details given in the Counter-hlemoriril which show that rapid
increases in school attendance have indeed "narrow[ed] the educational
discrepancy between the 'European' and the 'non-European' children of
the Territory". In regard to Coloured children it was stated that more
than So per cent. attended school 3,and in regard to Native children it
was illustrated that there had been substantial progress, particularly
since 1951I. t was shown, inler alia,that the increase in the number of
Native children attending school was about 54 per cent. during the
years 1951-19 a6sagainst an increase of about 17. 4er cent. in thetotal
population 4,and that about 44 per cent. of al1Native children of school
age attended school in 1961 5.Respondent points out, furthemore, that
enrolment figures asat 30 June 1964were silbstantially higher than on
the correspondin d.Fe in 1963I .n the Police Zone the increase was more
than 6 per cent. and in the northern territories it was no less than 15
per cent.' It is estimated that about 52 per cent. of the Native school-age
population now attend schoof Respondent refers, finaliy, to proposals
which have been made by the Odendaal Commissionfor the extension of
educational facilities during the next few years, and to Respondent's
acceptance ofthe said proposals 9.
' III, p. 392.
IV,PP 392-393.
' 111,p.391.
Ibid..p.444.
5 Ibid., p445,
6 From 16,764 (videIII, pp. 434-435) to 17,91(Departmental information).
From 32,533 (vide III, pp. 441-442) to 37.622 (Departmantalinformation).
8 Calculated on an estimated totalXative population of463,000w ,hichfigure
reporteof the OdendaaI Commission (R.P. No. 1z/i964p,.245(table LXXXXII)}.he
Vide Chap. III. para. 50, supra. REJOINDER OF SOUTH AFRIC.4 I37
D. Disparityin Expenditure
22. 'Thissection of the Reply is divided into three parts headed, re-
spectively, "On Education in General". "On Teachers in Particular" and
"Conc~usion". These matters are dealt with hereunder in the same order.
23. In the Counter-Mernorial Respondent, while admitting that
"amounts spent on Native education have at ai1tirnes bceri substantially
lessthan the amountsspent on European education" ',submitted that-
". ..in the Iight of the circurnstances which have prevailed and stiU
prevail in the Temtory, a comparison between tl.ie two things-
expenditure on European education and expenditure on Native
education-cannot per se be indicative of unfair discrimination
against the Native groups '",
and that-
"[c]onditions which have governed, and still govern, European and
Native education, have been, and are, vastly dissimilar, and al1
cornparisonsbased onmeredifferencesin expendituremust inevitably
be invalid in the context of charges as made by the Applicants. The
same considerations apply, though to a lesser estent, to Native
education in the Police Zone as compared with Native education in
the areas beyond it l."
Respondent submitted, furtherrnore, that-
"[tlhe question of expenditure on education of each of the popu-
lation groups rnust, in the first place, be considered in the light ofthe
social and economic statusand levels of development of each of the
groups, and their respective educational needs l",
and that-
"[tlhe various factors and conditions which inhibited the introduc-
tion and development of education in the case ofthc Native groups,
rendered il almost inevitable thal expenditure on edz~cationin the
Territory should have begztnon a basis of s~tbsfantiaexcess olzthe side
of European education over that of Native educatioii l". (Italics
added and footnote omitted.)
It was pointed out ai the same time that-
"[wlith the progressive extension of education to the Native groups,
increasingly larger sums have ... been spent on Native education,
and with the continued social and economic advancement of the
Native peoples of the Territory, the difference in expenditure on
Native and European education must, in the course of time, of
necessity disappear l".
24. In the Reply Applicants do not deal with the various conditions
and factors to which Respondent referred in the Counter-Mernorial as
having thus far rendered European educatioii more expensive than
Native education. Their treatment of the matter amounts tothe foLlowing:
(a) Their answer to Respondent's submission as contained in the
partly italicized passage above is a submission that "the very
reverse of the foregoing proposition was true in 1920 and remains
true today. The inhibiting factors referred to by Respondent138 SOUTH WEST AFRIC.4
shouid have made 'inevitable' firoportimately higher expenditrrres
on th 'Native' group l. In this regard it may be pointed out that,
at least in so far as the pre-Second World War period is concerned,
Applicants' submission isin direct conflict with the viewof a member
of the Permanent Mandates Commission, Mile Dannevig, who,
as was pointed out in the Counter-Mernorial, stated in 193 that she
".. . fully appreciated. .. that schools for European chil cren mut
coçt considerably more in proportion" 2. Applicants completely
ignore this statement 3.
(b) Applicants point to the differences in expenditure on European
and Native education as reveaIed in Respondent's Counter-
Mernorial, and, on the baçis thereof, they submit that-
"... ço astonishing a discrepancy, viewed in the context of the
affirmative obligations of the Mandate, is a fie7 se indication
that Respondent has, from the inception of the Mandate, ne-
glected the 'Native' population, to the advantage of the 'Euro-
pean' population 4".
They add :
"Respondent has spent, and continues to spend, a great ma-
jority of its educatianal funds on a small minority of the inha-
bitants; this can only be interpreted as a promotion of the rvell-
being and social progress of a minority of the inhabitants, to
the disadvantage of the overwhelming majority thereof 4."
In addition to referring to expenditure figuresin the Counter-Mernorial,
as stated above, Applicants in the Reply make a calculation of expendi-
ture by Respondent in ~gGz-1963 on, firstly, each European and Native
child of school age and, secondly, on each such chld actually at school 5.
In the Counter-blemorial Respondent gave fier crzfiitaexpenditures, cal-
culated on attendances, in various years in the case ofboth European and
Native children 6. Applicants, in a footnote 7,allege that Respondent's
cdculations are "misleading" because they are based on the nurnber of
pupils attending school rather than on the number of school-agechildren.
The allegation is without substance. There is no justification for calLing
figures"misleading"when theyare expresslystated to reffectespenditure
l IV, p.385.
Vide III,p. 536.
3 In other mandated territories with Europeanpopulations there seems tohave
e.g., the amount spent on each European child at schooI was In251.G5nshillings as,
against 43.48shillings in thcase of African children (taking into account amounts
spent by Native administration). The amount spent per hesd of the total European
population of 9,128 was 25.14 shillings as against 0.30 shillings in the case of the
total African population of 5,182,515. Vide Reportby His Majesty's Gouernmenf in
Ihc United Kingdom ofCrcaf Britain and Norfhern IrelandlotheCouncil of IhcLeague
ofNafiolzs oit the Administration of the Tanganyika Territory for theytar 1938, p. rrg.
IV, p. 393.
Ibid., pp. 393-394. Theyuse thepopulation figures for 1962 as estimated in R.P.
No. 12/1964 in footnote 5 on p.394.
III. pp. 457-458 (Native children in Police Zone and northern temtories);
pp. 506-507 (Europan children). The position in the Caprivi is easily determinable
from pp. 460 and 465 (paras. 85 and 95).
IV, p. 393, footnote 5. REJOINDER OF SOUTH AFRICA I39
on "pupils at school" lThey also make the suggestion,which Respondent
rejects; that Respondent based its calculationon pupils actually at school
in order to render the comparisonbetween expenditureson European and
Native education "less shocking", but they omit to acknowledge that
Respondent gave the expenditure percapapiotf athe total Native population
in 1960 in the Counter-Memonal 2-an amount obviously çubçtantially
less than in the case of the European population. Respondent points out
that, in any event, al1the particulars necessary to make #ercapitacalcuia-
tions on the basis suggested by Applicants are either expressly stated in,
or easily determinable from, the Counter-Memorial. Respondent says,
furthemore, that a comparison of per capita expenditures cannot be
considered to "reflect the total efforts" made on behalf of the European
and Native populations: Such a comparison would, by reason of the
vanous factors which have thus far operated to rnake the Native school
attendance rate lower than that of the Europeans, be particularly un-
realistic iffier capita expenditures were to be calculated on the total
European and Native school-age populations 4.
25. To sum up: the aforegoing shows that Applicants base their
contention that "Respondent has, from the inception of the Mandate,
neglected the 'Native' population, to the advantage of the 'European'
population" purely on a cornparison of expenditures on European and
Native education. and that, apart from submitting that factors which
have inhibited the development of Native education should have made
inevitable "proportionately higher expenditures on the 'Native' group",
they have not dealt with various factors which, as Respondent indicated
in its Counter-Memorial, show that "al1 cornparisons based on mere
differences in expenditure must inevitably be invalid in the context of
charges as made hy the Applicants" 5.
26. In regard to expenditure on teachers, Respondent indicated in the
Counter-Mernorial that itwas not clear whether Applicants' contention
was that there should be no difference in the salaries paid to European
and non-European teachers 6, and it dealt with various factors and con-
siderations which apply in South West Africa in order to show that,
if that were indeed Applicants' contention, it would not be a valid one 7.
In their Reply Applicants have stillnot indicated precisely what their
contention is. They do not Say outright that there should not be a differ-
ence in the salaries of European and Native teachers who have the same
qualifications. What they do, is to describe the difference between the
salaries ofEuropean and Native teachers holding the same qualifications
asan "extraordinary disparity" and to allege that Respondent has
III, pp. 457-458. As to European pupils and expenditure,vide pp. 500 and
506-507.
Ibid., p459.The year rg6owas chosen because a popuIation censuswas taken
in that year.
IV, p.394, in footnote 5, carried over from p. 393.
* Respondent points out that in 1963-1964 expenditure onNative educationthe
information.)In 1962-196t3nhe corresponding figures werR405.4328and Rz51.689tal
(vide III, p. 458).
' 111,p. 534.
Ibid.p,. 532.
Ibid., pp532-533.
IV, p. 395-I4O SOUTH WEST AFKICA
attempted to justify this "extraordinary disparity", whereas it is quite
clear from the Counter-Mernorial that Respondent merely indicated why
European and Native salaries were not the same, and that it in no way
dealt with the extent of the differencesin such salaries.
It would seem, in the circumstances, that Applicants' contention isnot
that there should be no difference in the salaries of European and Native
teachers holding equal qualifications, but that differences existing at
present are "extraordinary". Applicants make no attempt, however, to
indicate what a reasonable, or "ordinary", difference tvould be when
regard ishad to al1reIevant circumstances in the Territory. As will ap-
pear from the Reply, their answer to Respondent's treatment ofthe ques-
tion of teachers' salaries l amounts to the following:
(a) they allege that the shortage of Native teachers shows that salaries
offered to Natives are insufficient to attract them to the teaching
profession 2;and
(b) they allege that Respondent "attempts to justify" the "extra-
ordinary dispanty" between European and Nativesalaries, and they
then proceed to reply to what Respondent said in the Counter-
Mernorial in regard to various factors which play a part ,in the
determination of salaries and allowances of teachers in the different
population goups 3.
Respondent will deal with these matters in turn.
27. Applicants refer to the shortage ofNative teachers in the Territory
and to the fact that Respondent attributes this shortage, znter alia, to
"the absence of a keen feelingfor the need for suchservices[on the part of
the 'Native' groups] at their present stage of social evolution" '. They
point out that Respondent has stated that "the Herero, in particular,
show very little interest in the teaching profession. .." 5.
Then, apparently in an atternpt to discredit Kespondent's aforemen-
tioned statementç and to show that there is a general interest in the
teaching profession, Applicants proceed to Say:
"Yet Respondent cites the Report of the r958Commission as
holding that 'it waç remarkable to what extent the idea of serving
on [school committees] . . . and exercising authority over their
schoolçstirred the imagination of Native parents, tribal councils and
chiefs, wifhout exception' 6",
and-
"[a] reasonable conclusion is that Respondent has failed to render
the teaching profession (as distinguished from part-time service
on school committees) suffrciently attractive to the 'Native' popu-
lation 7".
This aileged "reasonable conclusion" isinfact unfounded. It is also aot
a reasonable inference from the çtatement referred to by Appllcants.
l Vide III, pp. 532-533.
= XViPP. 394-395.
Ibid., pp.395-396.
+ lbid., p.394.
Ibid.r,ferring to III, p. 360.
III ,.369..501.The relevant paragraph in' the Commission's report appears in
IV,P. 395. REJOIXDER OF SOUTH AFRICA I4I
The fact that al1 Native witnesses before the said Commission showed
great interest in controlling their schools is no warrant for suggesting
that there isgeneral interest on the part of Natives in the teaching profes-
sion, or for saying that Respondent has failed to rcnder the profession
sufficiently attractive. Respondent does not propose going into any
detail in regard to this issue. It merely points out in regard to the Herero,
whom Applicants mention, that at present there are no Herero teacher
trainees at the Aüpstineum, and onlysix at Doebra, i.e., six out of a total
of roo trainees at these two centres l.
Applicants also refer,apparently inan effort to bolster their aforesaid
"conclusion", to a statement made by Miie Dannevig during the 36th
Session of the Permanent Nandates commission in 1939. As appears from
the part of the Riinutes quoted by Applicants 2,MlieDannevig expressed
the vieiv, as she had also done the year before, that "the offer of higher
salaries would perhaps induce more young natives to be trained as teach-
ers". In Respondent's submission this expression of opinion cannot be
taken to show that the then elcistingsalaries in fact had any signifrcant
effect on the supply ofteachertrainees, or that Respondent infact failed to
render the teaching profession sufficiently attractive. Furthermore, as is
pointed out in the Counter-Rlemorial 3, salaries are adjusted from time
to time,with the result that an opinion expressed at any psrticular time
must of necessity relate only to conditions as then existing.
28. Applicants aIso attempt to use the aforementioned quotation from
Respondent's representative, &Ir. Andrews,niisstonMlleDannevig's view in
regard to salaries ', as a basis for suggesting that Respondent does not,
othenuise than in the case of European education. recognize higher
salaries as a means of inducing young Natives to become teachers. This
suggestion has no basis in fact.Furthermore, RIr. Andrews' reply does not
support the suggestion. His view was obviously not thst higher salaries
were inappropriate to attract Natives to the teaching profession. His
point was that, in circumstances as they prevailed at the tirne, there were
"arguments a ainst the idea of teachers who were such from lucrative
motivesonlypp ! In other words, whilst higher salaries rnight attract more
teachers, those who were attracted only by the remuneration offered
might well prove unsuitable for the task they had to perform. That is
why he referred to Dr. Vedder who, by reason of his position and
experience of conditions in South West Africa 6, was eminently qual-
ified to Saywhat qualities were most needed in Native teachers at that
time.
29. Applicants Say that "higher salaries are openly recognized as
incentives by Respondent" in the case of European teachers, andthey
quote a passage from the Counter-Mernorial in which it is stated that "a
considerable increase in the nurnber of teacher trainees" since thewar is
"probably to be ascribed largely to increased salary scales for teachers,
1 Departmental information.
IV.p. 395-
= n17PP 452-457 and532-533.
Ibid. (Italics added.)e z,for thisreply.
Vide III, p409.142 SOUTH WEST AFRiCA
and to the financial aid offered since 1950 by the Administration in the
form of bursaries and loans" l.It is, of course, true that higher salaries
are "openly recognized" as incentives by Respondent in the case of
European education, but how this fact can, either by itself,or incombina-
tion with what was stated by the aforesaid 1958 Commission or in the
Permanent Mandates Commission, be used as a basis for suggesting that
Respondent does not regard higher salaries as inducements in the case of
Native education, is not clear.
Applicants' quotation from the Counter-Mernorial, as referred to above,
is followed by the following words:
"Yet 'Native' teachers are offered salaries and aliowances far
lower than those available for 'European' teachers in the Territory.
The commencing saIary of a married male 'European' teacher in the
lowest category, including a special aliowance, is R1.406. The com-
mencing salary of a mamed male 'Native' teacher with comparable
qualifications, together with his cost of living allowance, is R696 3."
(Footnotes omitted.)
The suggestionseems to be that the mere fact of a substantial difference
in the salaries of European and Native teachers shows that Respondent
has not rendered the teaching profession "sufficiently attractive" to the
Native population, or that Respondent does not regard higher salaries
as incentives in the case of Native teachers. Respondent rejects thls
suggestion and, refers to what 1sstated in the Counter-Alemorial inregard
to the various factors u.hich operate to make the salaries of European
teachers higher than those of Native teachers, and in regard to Native
teachers' salaries and their increase from tirne to time '.
In the latter regard Respondent mentioned in the Counter-Memonal
that "[njew salary scales for Native teachers, to operate with retrospec-
tive effect as from a date in 1963,are at present under consideration" =.
The new scales were fixed at the end of 1963 and came into operation
with retrospective effect as from I:Aprilrg63. These scales areas follows:
I Lower Prirnary Teachers Cer- Men :R384~36-60ox48-g36
tificate Worneii: Rzgqxr 8-31 2x24-384x3&4gz
2 Higher Prirnary Teachcrs Cer- Men: R456~3€-6oox48-r032
tificate Women: R336~24-384~3&6mx48-648
3 Matriculation plus profession- Men: R564x3&600~4&1080~6~1440
al Certificate Women: R456~36-600~4&840
1 IV,p. 395,and widc IIIp. 508, where Respondent pointsout that, despitehigher
salaries and the other aids rnentioned, "there has been, and stila considerable
shortage of properly qualified teachers". On Applicants' argument this shortage of
European teachers must be taken toindicate that European teachers' salaries are
too low.
Vide para.27,supva.
Zone. Applicants have omittedrto take into account6aregional allowance of R80;e
vide IIIp. 457.
' 111PP. 452-465 and PP. 532-533.
'Ibid.,p. 455, footnoteI. REJOINDER OF SOUTH AFRICA
Gvade Qualifications Scale
4 Four Degreecourses plus pro- Men: R6oox48-ro8ox6a-1~w
fessional Certificate TIrorne: Rqgzx36-600~48-888
5 Bifessional Certificateus pro-\Vamen: R528~36-600~48y36560
6 Degree plus professional Cer- Men: R744~48-1080~6~+1680
tificate TVomen: R6oox48-1032
The aforementioned scales apply in the Police Zone and in the northern
territories, Save that teachers in the northern territones teaching in
lower primary schools are remunerated according to the following scales,
which are the same for men and women :
(i) Lower Primary Teachers Certificate :
Rzg4x 18-312x24-384x36492.
(ii) Higher Primary Teachers Certificate :
R336xz4-38&36-600~8448.
In fixingthe said new scales the cost-of-livingallowance previously paid
to teachers in addition to their salaries was consolidated in the new
salaries.
A comparison of these scales with those in operation prior to I April
1963 will show that the increases are fairly substantial. In al1cases it
exceeds the total of salary and cost;of-living allowance paid prior to I
Apnl1963, Save in the case of mamed men, who commence at a lower
salary but receive higher increments and rise to a higher maximum than
was the case under the previous scales. This result followed from the fact,
as already stated, that the cost-of-living allowance previously paid was
consolidated in the new salaries, but a revision of the position in this
regard is now under consideration.
Perçons already in service when the new salary scales cameinto opera-
tion started on a notch in the scale whichexceeded their previous salary
plus cost-of-living allowance.
30. In the Counter-Mernorial3 Respondent submitted, in answer to a
paragraph in Applicants' Memorials 4, that if Applicants' contention was
that "al1 teachers should be paid the same salaries, it would not be a
valid contention", and Respondent then dealt with various "circum-
stances and factors reIating to the determination of salaries and allow-
ances of teachersin the different groups" 3.
Respondent stated, firstly, that-
". .. the qualifications-demanded in the case of European teachers
are generally higher than in the case of non-European teachers, and
it stands to reason that teachers with higher qualifications should
command better salaries 3". (Footnoteomitted.)
As Applicants point out, and as alço appears from the Counter-Memonal
itselfS,it is possible to have European and Native teachers who have the
same qualifications. Respondent 's aforequoted staternent was not in-
1 Vide ITI ,.456.
2 III, p.455 and cost-of-living allowancstp. 456.
Ibid., p. 532.
1, p.158 (para.183).
III, PP.455,462, 463.503 and 504.144 SOUTH WEST AFRICA
tended to crcate the impression that Native teachers neceçsarily have
lower qualifications and thereforc rcceive smaller salaries than European
teachers, but to point out why the vast majority of Native teachers
(having passed only Std. VI and a teacher training course)receive smaller
salaries than European teachers with the Iowest recognized qualifica-
tions 1.Respondent points out, furthermore, that the statement was made
in a paragraph which deals with an allegation in the hlemorials in
which Applicants referred merely to differencesin salarieswithout having
any regard to differences in qualifications.
31.Because of the incomplete and misleading way in which Applicants
in the Reply state the further facts and argumentsadvanced by Kespon-
dent in regard to the matter in issue, Respondent consideis it necessary to
repeat in somedetail what was said inthe Counter-Memorial. Respondent
pointed out that the range of cconomic alternatives open to prospective
teachers was also an important factor in the determination of salaries. In
regard to European teachers Respondent said, inter alia,tliat-
"[flor persons ~viththe qualifications of the European teachers there
are many alternative employment opportunities, not only in the
Territory itself, but also in South Africa. The salaries of these
teachers mmt, therefore, always bear a reasonable relationship to
salaries paid in the other spheres of emplopent which are open to
them 3",
and thatit had been found necessary to pay a special allowance to Euro-
pean teachers to attract them from South -4frica to the Territory 3. In
regard to Native teachers Respondent said, ilzledia:
"The aforementioned considerations do not apply to nearly the same
extent in the case of Native teachers in the Territory ... The prob-
lem is rather one of inducing a sufficient number in the Territory to
obtain even the lowest qualifications necessary for teaching purposes.
There has in the past been little competition for the services of such
persons on comparable salary bases .. .3"
Respondent then made the further point that, in its view,
"A teacher's salary should ... bear a relationship to the normal
income of other members of his group, otherwise he might become
separatedor estranged from them as a result of an artificial financial
bamer 3."
It was also stated that-
"The Native groups are in general still much less developed in the
economic sphere than Europcans, and their wholestructure of income
and of cost of living is generally lower 3",
and that such factors resulted in a situation that "... salaries paid to
Native teachers are lower than those paid to'European teachers, even
where qualifications may be comparable" 3.
Respondent indicated that social and economic considerations of the
kind mentioned by it also accounted for difierences in the salaries of
European and Native teachers in other African tenitories 3,and referred
to the findings and recommendations of the Commission on The Civil
1 VideIII, pp. 388503-504 and 535.
*1, p. 158(para. 82).
nr, p. 532. REJOIZJDER OF SOUTH AFRICA I4.5
Services of Kenya, Tanganyika, Uganda and Zanzibar, 1947-1948 l.
Respondent now turns to Applicants' answers to the vanouç points
made in the Counter-Memorial, as restated above.
32. In regard to what Respondent stated in connection with economic
alternatives open to prospective teachers, Applicants say:
". .. the argument by economic alternative is the creation of yet
another endless circularity-it has been Respondent's duty for more
than forty years to create meaningful economic alternatives for
'Natives', andits failure so to do cannot be adduced as a justification
for a failure ofa different sort2".
In Respondent's submission, this answer isgiven to avoid dealing with
realities as they exist not only in South West Africa, but also in other
underdeveloped countries where different population groups find them-
selves at substantially different levelsof socialand economicdevelopment.
It is, Respondent submits, \vithout substance, being based on the whoIly
unrealistic supposition that Respondent could, and should, in the brief
span of some 40 years have developed the iiidigenous peoples of the
Territory to a,social and economic level equal to that of the European
population or, in any event, to a level so near thereto as makes no real
difference.
Applicants do not (savefor a remark in a footnote, to which Respon-
dent refers below) deal with the merits of Respondent's point that sirnilar
circumstances in other African temtories have affected European and
Native salaries in the same way as in South iVest Africa. They evade the
issue by saying that ". ..such cornparisons are meaningless and serve no
usefd purpose, since there are no other African terntories subject to
Mandate" Z. This is, of course, no answer. The economic considerations
here in issue do not apply only in rnandated territones, anddo not depend
for their validity on the status of a country.
In regard to the snme point, Applicants add in a footnote:
"In any event, moçt other Afncan territories, in recruiting
European teachers, do so frornÆzirope; salary differences become
understandable in this light, since the motivation and effect is
wholly different than isthe case with respect to the 'Europeans' of
South West Africa 3."
As appears clearly from what is stated in the Counter-JIemoria14, the
question of higher salaries for teactiers imported from another country is
only one of several considerations which are in issue. It is, furthemore,
quite incorrect to suggest that the question of higher salaries (or special
allowances) for irnported teachers properly anses only when teachers are
imported from Europe, and not when teachers for the Territory are im-
ported from South Africa. The question in each case iç whether a teacher
between the two countnes may play an important part in deterrniningtance
salaries and other benefits. South West Africa is almost completely
dependent on South Africa for its Europeanteachers, and experience has
shown thatto induce such teachers to corne to (or, in the case of teachers
III,p. 533,footnote 3.
IV, p. 396.
+ III,pp. 388-389and532-533.14~ SOUTH WEST AFRICA
born in the Territory, to stay in) the Territory, they have to be offereda
special allowance in addition to such salaries as are paid in South Africa'.
33. In their answer to Respondent's submission that "[a] teacher's
salary should ... bear a relationship to the normal income of other
members of hiçgroup, othenvise he might become separated or estranged
from them as a result of an artificial financial barrier", Applicants com-
mence by misrepresenting what Respondent said. According to them
Respondent stated that, "to pay higher salaries to 'Native' teachers
would 'separate' and 'estrange' them" * from other members of their
group. This is obviously not what Respondent stated. They then proceed
to Say that Respondent's"statement" is-
"... yet another circularity, since if no members of the 'Native
group' are rewarded above others, the 'group' progTess will at aii
times be limited to the rate of advance of its slowest member ?".
This "circularity" argument suffersfrom the fatal defect that Respondent
never stated, or in any way suggested, that there are no mernbers of the
Native group who are rewarded above others, or that no members of the
Native group should be rewarded above others. Respondent's point
was that there should be a relationship, Le., a reasonable relationship,
between a teacher's salary and the income of other members of his group.
Furthemore, AppIicants' argument has no factual basis, since it is in
no way true to say that no members of the Native group are rewarded
above others.
34. Having stated their "circularity" argument, Applicants quote a
part of the paragraph with which Respondent concluded its treatment
of the question of differential salary scales for Europeaii and Native
teachers, and which reads as follows :
"The situation is naturally not a static one, and is subject to
continual adaptation and change, as will appear from the account
already given of increases and alterations from time to time in salary
scales and allowances. The opening up of a nurnber of compcting
avenues of higher employment through rogress made in the policy
of separate development, us recounted'in other portions of this
Counter-Mernorial, coupled with the teacher shortage in regard to
Native education, must naturally tend to increase the basis of
remuneration ofXative teachers. With continued social and economic
progress on the part of the Native population groups, the gap
between salaries for Native and European teachers must in the
ordinary course be narrowed and, eventually, disappear. It.could,
however, do incalculable harm to anticipate this process by singling
produce a cornplete economic imbalance betlveen them and virtuallyd
al1 other members of their communities 4."
They then Say,apparently on the strength of the passage quoted by them,
that "Respondent has thus stated that it will harm a man to pay him
more" ?,and they ask "Where does this 'incalculable harm' arise?
"IV,1.p. 396.
Ibid. (quotation at footnote 4).
' 111.p. 533- REJOINDER OF SOUTH AFRICA I47
Respondent never stated, or suggested, that it "will harm a man to pay
him more", but made the point that a teacher codd become estranged
from the mernbers of his group as a result of an artificial financial barrier,
and that such estrangement has the harrnfui result that "the teacher
ceases to be able to exercise the required influence over his OW? people,
and accordingly fails to be an effectiveinstrument in advancing their
spiritual and material progress'' l.Respondent pointed out, furthemore,
that a premature raising of salaries in the case of Native teachers could
cause harm in the following respect, viz., by causing "a complete eco-
nornic imbalance between them andvirtually a11 other members of their
communities" 3.
Applicants, in asking "[wlhere does this 'incalculable harm' arise?",
Say that "Respondent's answer to this question is to be found in a state-
ment ofDr. Verwoerd in the South African Senate" ',and they then quote
a passage with which Respondent has already dealt in another connec-
tion 5.Respondent indicated that the answer to Applicants' question isto
be found in a proper reading ofwhat is stated on the issue in the Counter-
Memorial. As has been shown, Respondent's point was that a Native
teacher's estrangement from his own cornmunity means a loss-to that
community. A possible desire on the part of such a teacher to loin the
European community (whichiswhat Dr. Verwoerd spoke about, although
not in connection with salaries), or any other community, is irrelevant
E. Conclusion
35. Applicants' "Conclusion" begins with the subrnission that-
". ,.this last-mentioneddiscrimination [i.e., in regard to expenditure
on teachers] is but another example of impIementation of Respon-
dent's basic policy of educational aPartheid 6".
Respondent has already dealt with the question of educational expendi-
tures and teachers' salaries, and with various social and economicfactors
which have thus far operated to make such expenditures and salanes sub-
stantially larger in the case of European education than in the case of
Native education. Respondent says that there is no substance in Appfi-
cants' submission that such differences constitute part ofthe implementa-
tion af any partimlar policy, let alone a "policy of education aplrtheid"
as Applicants picture it in the Reply.
Applicants further allege that-
"[i]t [i.e., presumably, the alleged discrimination in teachers'
III, p. 388.
Vide the words "singling out", para, 34, footnote 3, supra.
Vide the passage quoted above, Respondent pointsout thatthe Commission on
The Civil Servicesof Kenya, Tanganyika, Uganda and Zanzibar (vide III, p.389)
recommended that account should be taken of ruling incorne levels in those classes
of the community from which the civil servant cornes. It stated, ilter a"The
disadvantages of so rernuneratingany dass of Africansas to create a Mandarin
caste, divorced in income and interesfrom their fellows, would not be confitod
the economic field." (Report ofthe Commissionon The Civil Services of Kenya,
Tanganyika, Uganda and Zanziba r947-1948 C,olonial No. 223 (1948)p ,. 27,
par+.IV.D. 996.
Chap, II, paras5-20,supra, and particularlpara. IO.
IV, p. 397- SOUTH WEST AFRICA
salaries] ia product and symptom ofthe policy which has prolonged
and aggravated the very conditions which Respondent relies upon
as justification for its policy".
Respondent is not sure that it understands the meaning of this passage.
It isnot clear what the terms "the policy" and "its policy" arc intended
to signify. Perhaps the su gestion is that Respondent is itself responsible
for the various factors w %ich have, according to Respondent, thus far
operated to make expenditures on European-educatiôn, and European
teachers' salaries, substantiallv Iarger than expenditiires on Xative
education, and Native teachersï salases. If so, th; suggestion is denied.
Perhaps, however, the allegation is intended to relate to the elaborate
"circularity" argument which follows it. This argument, which Respon-
dent does not propose to quote in full lhas little relation to realities, and
is without' substance. It has, as its starting-point, the allegation that
" 'Natives' remain uneducated because there are not enough 'Native'
teachers". This allegation is an incomplete and rnisleading statement of a
complex issue, as will appear from what is said in the Counter-3lemorial
in regard to the various factors which have served to retard the develop-
ment ofNative education =,and must inevitably lead to wrong concIusions
unless it isso qualified as to make clear that problems are gradually being
solved and that the percentage of children receiving an education is
increasing every year 3. Basic to.Applicants' argument is the further al-
legation that the shortage of teachers isdue to lowsalaries. Theallegation
has in no way been proved by Applicants, and isdenied.Respondent does
not propose analysing Applicants' argument any further. Sufficeit ta Say
that, in Respondent's subrnission, neither its assumptions nor its con-
clusions are iustified.
36. Applicants purport to see"fslirnilar circularities... in every aspect
of the education of 'Natives' in the Territory" l,and it is alleged that
"[s]uchpatterns rest upon the same assumptions, and move toward a
common objective" l. It is notstated what these "circularities" are, and
presurnably the reference is to those "circularities" which are mentioned
in earlier parts of the Reply and with which Respondent has already
dealt.
Finally, Applicants refer to various matters previously raised by them
in the Reply and then allcge that "al1 of these aspects relate to, andare
informed by, the essential design and assumptions of afiarfheid". Res-
pondent has aIready dealt specifically with the vanous aspects referred to
by Applicants, and with the aIlegations made by Applicants in regard
thereto. Respondent has also demonstrated that Applicants' allegations
regarding what they term "the essential design and assumptions of
afiartheid" lare +thout substance.
'IV, p. 397.
3Similar considerations apply in regard to M. van Asbeck'sview-oide IV,
p. 397, footnote 2-thatthere was a "vicious circle" in that "therenoaprimary
education because there were no teachersand no teachers because twaseno pri-
mary education". Furthermore, and in any event, if there was such a frustrating
"vicious circle" atthe time when M.van Asbeck spoke. it has since been successfully.
broken, as is evidenced by the number of teachers and pupils at the present time CHAPTER V
SEPARATEEDUCATIONAS VIEWEDBY UNITED
NATIONS POLITICAO LRGANS
A. Introductory
I. This Chapter deals with Annex 5 tothe Reply lin which Applicants
advance evidence in support of the fallowing statement made by them in
an eariierpart of the RepIy, viz.:
"Segregation on racial grounds has been condemned in al1civilized
nations ... It is excluded, for example, from the educational policies
of Territories subject to Trusteeship Agreement under Chapter XII
of the United Nations Charter, or subject to reporting as Non-Self-
Governing Territories under Chapter XI 2."
The Annex begins with a paragraph in which it is aileged that-
"[tlhe appropriate #oEiticaE organs of the United Nations have '
determined that racial separation in education is incompatible with
the purposes and principles of administration of dependent territo-
ries 3"(italics added),
and that the United Nations, "[~Jpeaking through such organs", has-
". .. determined that separation is incompatible with (a) the broad
goals of education; (b) the basic meaning of education; (c) the
principle of equal opportunity; (d) the principle of racial equality;
and (e) the goal of unification of the territory3".
Then follow five paragraphç, lettered (a) to (e)4, in which Applicants,
apparently in order to substantiate the five propositions mentioned in the
quotation immediately above, refer to views of and resolutions by "politi-
cal organs" of the United Nations. These views and resolutions are also
described by Applicants as "standards" 5.Itis alleged, furthermore, that
these "organs", in asserting the said "standards", had due regard to the
"practical difficulties invoived in implementing them" 5, and that the
"determination by the United Nations that separate development in
education isincompatible with the purposes and pnnciples of administra-
tion of dependent territories has been fully, or almost fully, complied
with in every Non-Self-Governing Temtory with the exception of South
West Afnca" 6. The Annex concludes with what is intended to be an
illustration that "[tlhe promotion of the moral well-being and the social
progress of al1 the inhabitants of a territory by implementing no?-
discrimination in education is evidenced by the development in SomaIl-
land under Italian Administration" ?,and a cornpanson is made between
this territory and South \irest Africa.
' IV, pp. 398-403.
Ibid., p. 372.
Ibid., p. 398.
Ibid. pp. 398-399.
rbid..p.399.
Ibid.,p.401.
M., p.402.I50 SOUTH WEST AFRICA
Respondent dealshereafter with the above-mentioned frvepropositions
and the other aiiegations made in regard thereto, but before doing so it
makes a fewgeneralobservations as set out in the next paragraph.
2. It is a matter of great significance that, as noted above, the "stand-
ards" in regard to education on which Applicants place reliance in their
Annex 5, have allegedly emanated from pronouncements of political
organs of the United Nations. The extent to which Applicants' state-
ments are in truth not supported by the pronouncements of the organs
in question, will be indicated hereafter. For the present Respondent is
be said to accord with Appiicants'expositions. It isin this respect that
and to the fact that their pronouncements on education obviously ema-,
nated from, or were geared to, their vision of the socio-political future of
the trust territories concerned. This last factor also explains why Appli-
cants discuss the pronouncernents on educationwith reference to matters
such as "the goal of unification of the territory", "the principle of racial
equality", and "the principle of equal opportunity" l. '
It seems clear to Respondent that no discussion of the question of
separation or integration in education-even in the light of the "broad
goals" or the "basic meaning" of education l-can be divorced from the
socio-political context of the particular situation in which the question
arises. Respondent has already pointed out that in the United States of
America, where the question concerns Negroes and White perçons who
differ in racial origin but speak the same language, share the same culture
and participate in the same political institutions, and where there is no
policy to bring about an alteration in the last-mentioned respect, the
answer may well with justification be different from that to be given in
South West Africa-where the groups concerned have, inte ria, different
cultures, languages, political institutions, largely different areas separ-
ate lyoccupiedby them, where theyare concerned to retain their separate
identities and where the policy is one of development towards separate
nationhoods. For similar reasons the answer in South West Africa, in the
socio-political context just indicated, may for very good reasons have
to be different from that decided upon in the trust territories in question
consequentzkpon a decision (rightly or wrongly taken) to attempt to inte-
grate the various ethnic groups into a socio-political unit. For this reason
alone there can be no question of abstracting, from pronouncements of
the United Nations organs regarding such trust territories, any "stand-
ards" capable of rule-of-thumb application to education in South
West Africa.
As is indicated in various instances below, White populations consti-
tuted a very small percentage of the total numbers of inhabitants of the
various trust territories-and they werealmost invariablyfurther reduced
after decisionson thepart of the Administering Authorities, in the second
half of the ~gsos,to accept a policy of accelerated development towards
independence, on a basis of attempted integration of the inhabitantsinto
a single unit. As regards attempted integration even amongst the diverse
non-White groups,Respondent has indicated above2 that the results have
in some instances been disastrous and in others not much better. This
1 Vade para.T,supra.
2 Vade sec.E, supra. REJOINDER OF SOUTH AFRICA =fi=
is afurther reason why the Court will not, in Respondent's submission,
attach any weight to 'standards" sought to be abstracted from the pro-
nouncernents of the political organs concerned.
B. ThePropositionthat Separation 1sIncompatible
with the "BroadGoalsof Education"
3. It is alleged that "[s]eparation on account of race is incompatible
with the broad goals of education" l.Neither of the resolutions referred
to by Applicants in this connection was concerned with "the broad
goals of education", nor do Applicants say what "the broad goais of
education" are. The resolutions were concerned with what were tenned
"objectives in education" in Non-Self-Governing Temtories as defmed
by the Committee on Information from Non-Self-GovemingTemtories.
It appears from these "objectives of education" that they are of much
wider scope than is normally asçociated with a school education. For
example, one such "ob'ective" is stated to be "[tloraise the standards of
livin ogf the peoples i l helping thern to improve their economic pro-
ductivity and standards ofhealth" 3.
There is, in Respondent's submission, nothing in the first resolution
referred to by Applicants which says that separation isnot compatible
with education, or even with the "objectives of education" as stated in
the resolution. In the second resolution mentioned by Applicants, the
General Assemblyconçidered that, for the attainment of the aforesaid
objectives, "it is necessary to establish systems of primary, secondary
and higher education which willmeet the needs of all, regardless of sex,
race,religion,socialor econornicstatu, and provide adequate preparation
for citizenship" '.
It is clear, in Respondent's submission, that the General Assembly
was here concerned with the provision of educational facilities at vanous
levels, to "meet the needs ofall", andthat it held that no one should be
deprived of education becauseof hissex,race, religion,etc. The resolution
does not mean that a11children must have the same education, or that
a11must attendthe same schools.
C. TheProposition that Separation 1sIncompatible
with "theBasic Meaning of Education"
4. Separation in education is aliegedby Applicants to be incompatible
with the "basic meaning" ofeducation, orwith "the meaningofeducation
iself"'. Applicants do not say what the "basic meaning" of education is.
nor what "the meaning of education itself" is supposed to be, and in
Respondent's submission these expressions are not self-explanatory. It
would seem, furthermore, that the Cornmittee on Information, whose
IV,P. 398(para. fa)1.
Ibid.footnotesr end 2.
3 G.A. Resolzrfion743 (VIII), 27 N1953,C.A., O.R.,EighthSess.. Sufipl. No. r7
(AJz6ja).p. 24.From alater UnitedNationsdocumentit appears that the above-
rnentioned Committee regarded it as its function "to seek to contribute to the
promotion of educationin the.. broadest sense of the work[sic] 'educat...":
C.+.IV, p. 398. The word "race" is not italicized in the original,plicants'
quotation would indicate.152 SOUTH WEST AFRICA
view that "the principle of non-discrimination is essential to and is an
essential part of education" is quoted by Applicants, was not concerned
with philosophical concepts about the "basic meaning" of education,
but with the need for non-discrimination as a means of ensuring equality
of opportunity. That this is so, appears from the words which follow
immediately upon those quoted by Applicants, viz. :
"It [Le.,the principle of non-discrimination] should bc encouraged
by al1 means and every effort made to overcome the technical
difficuities of linguistics and finance that may limit equality of
opportunity l."
It foflows, therefore, that the proposition here in issue is, in essence,
the same as the proposition mentioned in the paragraph immediately
below.
D. The Propositionthat Separation is Incompatible
with "the Principle of EquaIOpportunity"
5. Applicants allege that "[s]eparation in education is incompatible
with the principle of equality of opportunity", and that "[iln order to
assure equal opportunity, there rnust be equal treatment, not separate
treatment,ofthe population" *.
In support of the latter allegation Applicants quote from a resolution
of the General Assembly in the year 1949when Administering Members
were invited "to take steps where necessary to establish equaltreatment
in matters relating to education between inhabitants of the Non-Self-
Governing Territories under their administration, whether they are
indigenous or not" 3. The Special Committee on Information gave the
following interpretation of the above resolution, as appears from the
report of the Sub-Committee on Education for 1950:
"The SpecialCommittee considers the resolution to stressequality
of opportunity for different ethnic and religious groups of the school
population, in order that every child, regardless of race, religion,
lnnguage or social status, may acquire both a knowledge of his own
culture and a sympathetic understanding of the cultures of others.
II does nof necessarily mean that a common educational firugramme
sholtldin al1cases be#rovided for allgroups i~ azcommunity ofdieersnt
rncicilor religiouscom~osition '."(Italics added.)
According to the above-mentioned report, the Special Committee ex-
pressed the view, which is quoted by Applicants, that "[iln the field of
education no principle is more important than that of equality of oppor-
tunity for al1 racial, religious and cultural groups of the population" 5,
and it also held that "it should be accepted as a general principle that no
school should exclude pupils on grounds of race, religion, or social
status" 6. At the same time it held, as the italicized words in the above-
quoted passage indicate, that "a common educational programme ... for
al1groups in a community of different racial composition" was not neces-
1 G.A.,O.R., ElcventhSess.Suppl. No. 15 (A(~IZ~),p. 23.
Ibid., p. 399, footnoI.
+ U.N. DOE. A/1303/Add. 1, p.16 (para.43).
Ibid., p17 (para.50 (a)).
6 Ibid.. p18 (para.50 (c)). REJOIKDER OF SOUTH AFRICA I53
sarily required, but that "programmes and organization of different
types of school may properly be designed to meet the needs of different
groups of pupils" l.The Committee felt that regard should be had to
local conditions in every country, and to thewishesg any grozip "desirous
of separate schoolaclivitiesfor ihe maintenance of zts culttrraherilage" 2.
(Italics added.) It is recorded that-
"[tlhere was .. . a strong belief that the principle of equal treatment in
education has so many ramifications that its consideration can be
adequate only uithin a picture of the whole cultural organization
and the complete social context of any temtory 2",
and that the Special Comrnittee held the view that-
"[rlespect should be paid to the wiçhes of any group desiring to
establish particular educational facilities for its members, but this
should be subject to the overriding consideration that the general
welfare of the whole community is'not thereby prejudiccd and that
the practical operation of any system of differentiation does not
lead to discrimination against any group 3".
The aforegoing shows, in Respondent's submission, that in 1950 both
the General Assembly and the Cornmittee on Information, whilst holding
that no person should be excluded from any school merely on account of
his race, and that there should be protection against discrimination against
any group, thought that regard should be had to the wishes of any group
desiring to establish particular educational facilities for its +mernbers,
and that there could properly be differentiation in school facilities and
programmes +.
6. In the years that followed, however, as Respondent will now indi-
cate, there came a change in attitudes. Thus, in 1955 the Committee
expressed the following view in regard to separate systems at the secon-
dary level :
"Practical difficulties, particularly those of language are held by
some Members to justify school systems adapted to the special needs
of groups of the population. But the Committee holds that, at the
secondary level, this justification can only be accepted in very
exceptional circumstances and as a temporary expedicnt . . . 5",
and in 1956 it stated, in regard to secondav education, that "every effort
should be made to develop a unified çchool system open to children of
al1races" 6. In pnmary education, however, it was thought thatdifferent
considerations appIied. In the çame year the Committee recogn~zedthat
"special schools to meet the special needs, particularly Iinguistic, of
young children may be justified so long as the system established has
relation to these needs and not to race barriers" '.
Respondent points out in this connection that in a "Study of Dis-
U.N. Doc. A/r303/Add. 1,p.18(para. 50 (c)),
Ibid.p. 17 (para47).
Ibid.. para. 50 (b).
Thissubmission alsocoversG.A. Resolution 324(IV)of 15 Nov. 1949.U.N.
Doc. (A~IZ~I) pp.39-40(VideIV,p. 400,footnot6 e,Thc resolutio wu passed
before G.A. Resolution 328(IVof 2Dec: 1949. Vidc IV,p. 399,footnot e.)
C.A., O.R.. Te?athSess., Suflpl.16o(A/zgo8)p..30(para. 92).
Ibid.. Elevenfh Sess., Suppa. No. 15(A/31p.)22(para. 78).
' Ibid., para. 77.I.54 .SOUTH WEST AFRICA
crimination in Education", issued by the United Nations Economic and
Social Corincil at about this tirne, it is stated that whilst the term "dis-
crimination in education" should be interpreted as broadly as possible so
as to cover al1 "inequalities ... based on race, colour, sex, lanpage,
religion .. ."l,the term "discrimination measures" cannot be applied-
"... both to unjust discriminatory measures and to certain Iegiti-
mate distinctionscalculated to restore rather than to prevent equal-
ity in enjoyment of the right of education. This is,for instance, true
of special education provided for a separate population group in its
own language or in accordance with its own culturaltraditions ... 2"
It is pointed out in the abovementioned "Study" that the United
Kingdom Government observed in regard to the Trust Territory of
Tanganyika, for which it was the Administering Authority, that-
"... the suggestion that there should be racial unification in primary
who, throughout the world, emphasize the necessity, in the case of
primary education, for schools to be related to social and home
environments and the advisability of teaching the very young in
their mother tongue or in the language they use in their home
environment. It is only at later stages that persons from different
environments can and should be mixed . ..3"
And in regard to Kenya, according to the aforementioned "Study", the
United Kingdom Government stated, interdia, in a memorandum:
"This idea of the multi-racial çchooliç very attractive. It suggests
a solution of the political problem of the plural society: children, it
is said, have no race feeling, andif you educate them side by side on
the same benches they will remain free of it when they grow up.
Such schools exist in the United States, and in cosmopolitan cities
like Cardiffor Liverpool; why çhould they not exist in Africa?
We admit the attractiveness ofthe idea, and wehope to showthat
some educationists in Kenya are working towards it. But the case
of the United States or of the cosmopolitan city in Britain is ?ot
parallel. There, you have a country with a well-established avili-
zation and language of its own, and the problern is to assimilate the
suggests that the aim of education there should be to makeNobody the
European child or the Asian child into a good African, to teach him
to forget hiç parents' mother-tongue and ancestral traditions ...
It is true that some countries, in which the problems of a plyal
society have proved intolerable, have accepted the multi-racial
school as the only way out. BIalaya is a case in point: there, the
Malay, Chinese and Indian communitieç are coming together in
so-called national schools in which the medium of instruction is
none of the three main languages, but English. The-price which
each community in Malaya pays which joins in the national S*OO~S
is that its own language and traditional civilization are inevitably
subordinated to the need for giving its children a common inhen-
tance."
Vide U.N. Doc. E/CN. 4/Sub.21~81,7 Nov. 1956(para. 50).p. 24.
Ibid.. para. 51.
Ibid.p,.56 (para. 159). REJOINDER OF SOUTE AFRICA I55
Having dealt with some language difficulties with which an integrated
schoolsystem in Kenya would have to cope, the memorandum continued:
"IVhich ever language is chosen as the medium of instruction,
some of the class are going to be taught through the medium of a
foreign language. And since language is the vehicle of culture, and
since the cultures of a Kikuyu, a Gujerati, and an English child are
so different, we believe that at the present stage, CO-raciae lducation
is not possible at the rimary stage. If it is admitted in theory that
something might be co fn'e by a system of parallel classes on a lan-
gua e basis in the same school, this still will be very expensive in
staff; and the differences between the pupils lie much deeper than
merely linguistic differences .. .l"
In 1959the Committee on Information from Non-Self-Governing
Temtorics stated that it had decided to go a step further than it had in
1956,and recommended the development of a common system of edu-
cation also at the primary school stage 2.The Committee now expressed
the view that "on no ground whatsoever can education on a racial basis
be juçtified" and that separate school systems should disappear 4.
At about the same time the aforementioned Committee stated, inter
alia, that "whether or not it had been feasible to provide equally advan-
tageous facilities for each of the racial groups, it was liable to entai1 a
multiplication of staff, effort and resources which no territory appeared
able to afford"
7. Three resolutions, later than those referred to above, are cited by
Applicants, dated respectively 19December 1961r, g December 1962 and
20 November 1963 6. These resolutions must be read, at least in part,
against the background of, firstly, movements for independence in the
case of some non-self-governing territones and, secondly, the General
Assembly's support for such movements, as expressed, inter alia, in its
"Declaration on the granting of independence to colonial countries and
peoples" and in its condemnation of what it terms "colonialism and al1
practices of segregation and discrimination associated therewith" In .
the said "Declaration on the granting of independence to colonial
countries and peoples", which is expressly referred to in the first two
of the above-mentioned three resolutions, it is stated, inter alia, that
"the peoples of the world ardently desire the end of colonialism in al1its
manifestations" ;that "an end must be put to colonialism and al1practices
of segregation and discrimination therewith"; andthat "the increasingly
powerful trends towards freedom in such tenitories which have not yet
attained independence" are "recogniz[ed]". In both the said resoIutions
the General Assemblyexpressed the view that "racial discrimination and
U.N. Doc. E/CN. 4/Sub. 21181,pp. 58-59 (para. 163).
G.A..O.R.. Foutletnth Sess., Suppl. NoI5 (Al41I1).p.16 (para. 33).
Ibid. (para. 37).
Ibid. Vide quotation at footnot2. IV, p. 400.
-'C.A.,O.R., Fiflccnth Sess., SuPpi. Na. (A/4371),p. 51 (para.239).
Vide IV. p. 400. footnote7 and 8. and p. 401, footnotI.
7 C.A. RcsoIution 15x4(XV), 14 Dec. 1960,G.A., O.R., fifleenlh Sess., SuPPl.
No. 16 (A/4684), p. 66.
%.A. Besolutdon 1904 (XVIII), 20 Nov. 1963, G.A., 0.R.. EâghteenfhSess.,
SuPpl. IVo.15 (A/5515), p. 36.The same phrase occurs in the "Declaration". being
the resoiution referred to in the footnoemediately above.15~ SOUTH WEST AFRICA
segregation in Non-SeIf-Goveniing Territories can be eradicated fully
and with the greatest speed by the faithful implementation of the Dec-
Iaration on the granting of independence tu colonial countries and
peoples" l.
None of the above-mentioned three resolutions deals specifically with
the subject of education and the organization thereof in any particular
country, but it is nevertheless clear from what has been said above that
the political organs here in issue movcd, within the short space of about
a decade, from the position where they recognized that the educational
and social development of different cultural groups in a country might
require separate educational facilities and programmes, to the point
where such recognition is no longer given, and where ali faciiities and
programmes are required to be joint, and mhere consideration of the
particular needs of different cultural groups has been pushed into the
background.
E. The Propositionthat Separatianis Incompatible
with "the Pnncipleof RacialEquality"
8. In the first paragraph of the Annex the proposition is stated that
"separation ... is incompatible with ... (d) the principle of racial
equality". In the paragraph containing material in support of this pro-
position it isalleged that "[sleparation . ..inevitably leads to the develop
ment or encouragement ofracial prejudice" 3.
In Respondent's subrnission, it needs no profound analysis of these
two allegations to observe that they are not the same. The difference is,
however, of no consequence, for in liespondent's submission neither
aliegation can validly be made as holding true for al1contact situations
in al1countries. ilrhether separation in education in any country does, or
will, in fact have the consequences referred to by Appfcants must, in
Respondent 's submission,obviously depend on all relevant factors within
such country. It is accordingly denied that separation "inevitably" leads
to racial prejudice.
In support of their allegation, Applicants cite two passages from
reports of the Cornmittee on Information from Non-Self-Govcrning
Territories 4.Neither of these expressions of opinion by the Committee
can, in Respondent's submission, validly be advanced as propositions
which have general application. They are, it is submitted, contradicted
by recent events in the United States of America, where it has been
illustrated that a joint system of education, if not desired by al1 the
groups concemed, can increase and exacerbate "racial attitudes" and
"interracial suspicion" In South West Africa, as has been stated else-
where 6,3114a.ttempted policy of integration is bound to cause prejudices
and strife.
l G.A. RcsoIufion 1698 (XVI), 19 Dec. 1961, C.A., O.R., Sinteenth Sess., Suppl.
NSevcizteelîthSess., Suppl. S17(Al52l17),p. 43. (XVII), ig Dec. 1962, C.A., O.R.,
2 IV.p.398.
Vbbid.. pp.398-399.
' Ibid.p. 399.
Vide sec.E. Chap. XI, supra.
Vide II,pp. 157 elseq.and IV, p. 382(para. 62); videalso sec. E,srcpra. REJOIXDER OF SOUTH AFRICA
F. The Proposition that Separation is Incompatible
with "the Goalof Unification of the Territory"
g. It is alleged tliat separation in education is "incompatible with the
goal of a unified territory capable of striving toward self-government and
social progress" 2. To illustrate that "political organs" l of the United
Nations have so "determined" l, Applicants quote a passage from a
report ofthe Trusteeship Council3 from which it appears that the Council,
in deaIing with Tanganyika, stated that it had on a previous occasion
"expressed the
obstacle to the evolution of a
was important to bring
language barrier between them disappeared" '.
In Respondent's submission the words used by the Council do not
support Applicants' broad and general allegation that separate education
isnot compatible with the goal of "a unified territory capable of striving
toward self-government and social progress". The Council did not speak
of a "unified territory", nor of a "striving toward self-government and
socialprogress". It merely expressed the opinion that a system ?fseparate
schools was an obstacle to the evolution of a unified and integated
societv.
Respondent has no serious quarrel with the logic of the Council's
opinion in so far as it concerns a country where the aim is-and such an
aim had been set in the case of Tanganyika 5-to establish a "unified and
integrated" society6. The opinion has no relevance, however, in the case
of a country where the aim is not to establish such a society but, on the
contrary, to presen7e the separate identity of the various constituent
-o-ulation groups.
IO. Applicants Say, further, that "[olne of the most important ques-
tions concerning the relation of education to socialunification has been the
l IV, p. 398.
Ibid. In the first paragraph at IV, p. 398, separation is said to be incompatible
with the "goal of unificationof ihe terrilory". This "territoryis not identified, and
"the" should probably read "a", asin the hst sentence of paragraph (e).
Ibid., p.399 at footnote 4.
G.A.. O.R., Eleventh Sess., SuppI So. 4 (d/3170), p. 6r.
Ibid., p33. In 1956 (the date of the report) Airicans constituted 98.6 per cent.
of the total population (8,084,000 out of S.rg5.700). The remainder were Asians,
Arabs and Europeans. Europeans (an estimated 22.500) constituted about 0.27 per
cent. of the total population. Vide figures ibid. ln1958 the European poputation
was estimated at 20,619 (or 0.23 per cent. of the total), of whom only about 3.000
were considercd to be permanently settled in the country: G.A., O.R. ,hirleenlh
Sess., SuppZ. So.4 (A/3S22), p.1.Inregard to the Council's opinion it may be pointed
out that in 1950 the Committee on Information expressed the view that "[dlifferen-
tiation in school facilities and programmes should not rnilitate against the develop-
ment of mutualsympathy and a feeling of common citizenship among the inhabitants
of a territoryu-thereby implying that diflereiitiationneed not militate against
such feelings of sympathy and common citizenship. Vide G.A., O.R., Fifth SES$.,
Suppl.No. 17(Aligo3lAdd. 1). Report approved by C.A. Resolution 445 (Y),12 Dec.
1950,C.A., O.R., Fifth Sess..Suwl. No. 20 (A/1775),p. 54.
6 Whether suchaim has proved to ùe in the best interests of the inhabitantsis
a different matter.Videpara. 2, supra. and sec. E, Chap. III, supra.158 SOUTH WEST AFRICA
problem of a suitable language of instruction" They Say that "[llan-
guage barriers have often been cited as an excuse for postponing inter-
racial schools" 2,and cite a statement made by the Comrnittee on Infor-
mation in its 1950report to the effectthat "[tlhe problem ofthe choiceof
language in instruction, important and difficultas it is, loses many of its
elements of confiict where there is a general conviction that the educa-
tional system does not favour any section of the population at the ex-
pense ofothers" *.
Respondent points out that the Committee on Information did not
make the above-quoted statement in relation to what Applicants cali
"social unification". The passage quoted is the first paragraph in a section
headed "Equal treatrnent" 3,and the Commissionwished to indicate,in
Respondent's submission, that whilst there wodd be no "equal treat-
ment" if the language of onegroup were used as medium of instruction in
schoolswherethere werealsochildren ofother langiiage groups, "eIements
of confict" would be reduced if there was a general conviction that
facilities were otherwise "equal". In this same report, as has been shown
before 4,the Committee expressed the view that equality of opportunity
did not necessarily entai1"a commoneducational programme", and that,
subject to certain requirements, respect should be paid to the wishes of
any group which waç "desirous of separate school facilities for the
maintenance ofits cultural heritage".
It is clear,in Respondent's submission, that the Committee on In-
formation did not, as Applicants suggest, deal with laquages of instruc-
tion in relation to "social unification".
It may benoted that Applicantç'approach involves the admission that
"social unification" in a heterogeneous situation willrequire the members
of one or more groups to sacrifice the advantages of being taught in their
own language. Respondent would point out that it may invoive a great
deaI more, viz., the loss of a group'scultural heritage.
In regard to Applicants' reference to the Trusteeship Council'sstate-
ment concerning education in Tanganyika 5, Respondent points out that
completely separate systerns were apparently still maintained at that
time (Le.,1957).It appearsfrom the report of the Councilthat it reminded
the Administering Authority of previous recommendations to unify the
educational system, and that the Administering Authority stated that
one of the main obstacles to their implementation was "the accepted
view ... that primary education should be given in the children's
mother-tongue" 6.The Administenng Authority, as pointed out in the
assage quoted by Applicants, agreed that it was desirable that
english should be taught in the prirnary schools at the lowert possible
levels, but its view apparently was that sound edncational principlesre-
quired that instruction in primary schoolsshouldbe in the pupils'rnother
tongue.
IV, p. 399.
U.N. Doc. AlrgojIAdd.c1,Ap.16.lAdd. 1,p. 16.
+ Vide para. 5, supra.
IV,p. 399,footnote 7.
C.A.,O.R.. TwelfthSess.Suppl. No. 4 (A/3595), p.50 (para198). REJOINDEK OF SOUTH AFRICA
G. AüegedConsideration of PracticalDi5culties '
II. Having dealt with views expressed by the "political organs" of the
United Nations in connection with the above-mentioned propositions,
Applicants rnake the following allegation :
"In asserting the preceding standards required by the duty to
promote education in dependent territories, the various organs of the
United Nations have been entirely aware of the practical difficulties
involved in implementing them 2."
It majr be assumed that the "various organs" of the United Nations
have been aware of the practical difficulties involved in implementing
their requirements. Respondent wodd respectfully point out, however,
that the establishment ofjoint systems ofeducation as at present required
by these organs involves much more than a mere question of pi-actical
difficulties and the solution of such difficulties. It involves that children
who belong to a language group whose Ianguage is not chosen as the
comrnonmedium of instruction are deprived of ali the generally admitted
educational, sociological and psychological advantages of mother-tongue
instruction 3.It involves, furthermore, that cultural groups may ultimate-
ly suffer the loss of nothing leçs than their cuitural heritage. Kespondent
has shown in this regard that these same "political organs" reco nized,
not so many years ago, that respect should be paid to the wishes OI every
group "desirous of separate schooi facilities for the maintenance of its
cultural heritage", but that this view has since changed into one which
demands joint education in al1circumstances +.In stating this view, these
organs Say that "on no ground whatsoever can education on a racial
basis be justified" 5, but it is clear that they do not condemn only such
separation as can properly be said to be based on race. In Respondent's
submission they unreasonably and unrealistically identify al1separation
in education, even where based on the linguistic and cultural differences
which characterize racial groups in a country, with "education on a
racial basis". In this regard Respondent says, furthermore, that it seems
most unlikely that they would have taken this line of consciously at-
tempting to minimize the difficulties and problems involved in mixed
education if they had not been imbued with the overriding philosophy
and policy that there should be integration in the socio-political structure
ofthe various territories 6.
It may be pointed out in this connection that Administering Autho-
rities from time to time inforrned the Trusteeship Councii that separate
educational systems in the territories administered by them were not
based on race. Respondent citestwo examples:
(i) In 1959 the followingwas reported in regard to Ruanda-Urundi:
"Sofaras discrimination in schooIsis concerned there are, at
the primas. level, schools with an African syllabus, a school for
l IV, pp.399-400 and videpara. I,supra.
Ibid., p. 399.
3 Vide III, p. 377 andvideChap. III, paras. 15(a)and 21 (b), supra.
Vide paras. 5-7, supra.
Vade para. 6,sup~a.
Vide para. 2.supra. SOUTH WEST AFRICA
Asians at Usumbura and schools run on Uelgian lines. The Ad-
ministering Authority explains that these distinctions are
prompted not by racial discrimination but by practical require-
ments arising from the location of the establishments and from
profound differences in custorns, education and, particularly,
language, which make a single cornmon system of education
impossible l."
(ii) The following appears in the 1962 Trusteeship report in regard to
New Guinea:
"The great majority of both mission and Administration
primary schools are classified as Primary 'T',and have a curri-
culum specially designed for indigenous pupils. The others,
classified as Primary 'A',follow the prirnary school curricdum
of the State of New South Wales. The Administering Authonty
states that the difference in schools is necessary because of the
wide variations in the respective cultural and educational
backgrounds of the students attending them 2."
12. 111dealing with the aforesaid political organs' alleged awareness of
the practical dificulties involved in complying with their requirements,
Applicants refer, somewhat incongruously, to a statement by the Com-
mittee on Information to the effect that there should be no separate
school systems 3. They Say in this regard that "[ilt is clear that the
operative part of the Committee's statement is its insistence upon the
principle of equal opportunity" 4. It does not appear from the passage
quoted by Applicants that this is so, but it seems clear from other
paragraphs in the report that the Committee thought that joint systems
of education were necessary to ensure equalitp in practice. It referred,
e.g., to the poor quality of indigenous primary schools in some terri-
tories 5. As has been shown 6, the Committee held the view that
"whether or not it had been feasible to provide equallp advantageous
facilities for each of the racial groups, it was liable to entail a multipli-
cation of staff, effortand resources which no Terntory appeared able to
afford".
With respect to the question of "practical difficultieç", Applicants
quote a conclusion of the Trusteeship Council in regard to mixed schools
in the Cameroons under French Administration 7. On the strength of this
conclusion,for which no supporting evidenceis mentioned in the Council's
report, Applicants say that it is a "fact" that "primarily separate schools
may quickly become completely inter-racial without increasing the
quantum of practical difficultieç" 4.Respondent submits that the said
conclusion establishes no such "fact", and, furthemore, that a con-
clusion draxvn from conditions inone temtory is not necessanly vaiid
elsewhere.
G.A., O.R. , ourteentSess.,Suppl. Xo. 4 (hl4IOO).p.58.
Ibid., ScventeenthSess., Suppl. No. 4 (.4/5~).,27 (para.141).
3 IV, p.400, quotation atfootnote 2.
IV, p.400.
G.A., O.R., FourteenthSess.Suppl. No. 15 (Al41 rr), p. 16(para. 35).
Vide para. 6supra.
IV. p.400, quotation in footnote4. REJOINDER OF SOUTH AFRICA 161
H. AllegedCompliance with UnitedNations
Requirements
13.Applicants state that "[tlhe determination by the United Nations
that separate development in education isincompatible with the purposes
and principles of administration of dependent tcrritories has been fuIIy
or alrnost fully complied with in every Non-Self-Governing Territory
with the exception of South West Africa" l, and they then proceed to
show how there has been cornpliance wvith"the requirements laid down
by the appropriate organs of the United Nations" in respect of various
types ofeducation 2.
Respondent submits that it is in no way obliged to comply with the
said "requirements" in the case of South West Africa. It says, further-
more, that no real purpose can be served by an inquiry on its part into
the degree of school intcgration in the variou territories mentioned by
Applicants 3.It seems to Respondent, with respect, that the relevance-
not to mention the propriety-f an inquiry by itas to compliance or
otherwise by other governments with "requirements" or "standards"
which have becn laid down by United Nations organs in respect ofterri-
tories administered by such governments must be open to serious doubt 4.
In the circumstances Respondent will deal but briefly with what is
stated by Applicants in support of their above-quoted allegation.
14. Respondent submits, generally, that the evidence advanced by
Applicants does not seem, Savein the case of university institutions 5,to
support the allegation that there has, in practice, been "full", or "almost
full" compliance with the said "requirements". The allegation nould
seem to be an over-statement in the case of secondary education, and it
is certainly such in the case of primary education. This appears not only
from what is said in the relevant paragraphs in thc RepIy 6, but also from
the followvingpassage in Part Two of the 1960 report of the Cornmittee
on Information from Non-Self-Governing Territories:
"From an early date in the period, . . .efforts were made in a
number of Territories-of which those under French administration
provided a notable example-to abolish al1such [i.e., racial] distinc-
tions in the public school systems. In others, the principle of inte-
gration in educational facilities was proclaimed then or later,
although in most of these cases a policy of gradua1application ofthe
principle, working downwards through the system from the univer-
sity level, was applied. In the majority of these cases, the process
of integration had not, at the end of the period, penetrated far into
the secondary level, and the primary scliools remained almost
wholly separated. There also remained cases, as the Cornmittee
IV, p.401.
2 Ibid.p,p. 401-402.
3It may bepointed out. also, that of the "dependent" territories mentioned or
referred toin footnotes by ApplicantsatIV, pp. 401-402, al1Save two (New Guinea
and Nauru-the latter being referred to in footngtat p.401) were independent
territoriesi the date of the Reply.
IV, p. 401 (para. (a) ).
Ibid., pp. 401-402 (paras. (b) an(c)).162 SOUTH WEST AFRICA
pointed out in 1959 w,here separate systems were still maintained
as a matter of policy l."
In regard to prirnary schools Applicants Saythat "[alpart from South
Africa, no Administering Authority bas contested the principle of inter-
racial schools on the primary level" 2.Respondent has already referred
to cases lvhere administering authorities pointed out that joint education
at the primary stage was in conflict with the principle of mother-tonguc
instruction for young children, or that linguistic and cultural differences
made it impossible to have joint systems of education j,and says that
Applicants' allegation is unfounded. To support their allegation, Appli-
cants refer, firstly, to Ruanda-Urundi, but what they Sayin regard to this
Temtory, whether correct or not, is in no way supported by the report
cited by them 4.They refer, secondly, to the Cameroons under French
administration, and Say that "by 1957 al1schoolswere open to students
of al1races" From the report referred to by Applicants it appears that
the Trusteeship Council commended the policy of the Administering
Authority "which has led to the establishment of schoolsopen to students
of al1races''6.This, it is submitted, doesnot support Applicants'sweeping
allegation as to "al1schools".
In regard to vocational schools Applicants Say that "{v]ocational
schools are increasingly established upn an inter-racial ba~is"~,and they
refer to Tanganyika and the Cameroons under French Administration--
territories which have been independent for some time.
Two statements arc made in regard to Tanganyika. The first, relating
to the establishment of an inter-racial Technical Institute at Dar es
Salaam, is correct The second, viz.,that "[fJrom 1958on, there was no
distinction açto race in any aspect ofvocational trainingin Tanganyika",
isnotsupportedby the authority quoted 9.
In regard to the Carneroons under French Administration, the alle-
gation is that inter-racial vocational schools were ((owere about to be)
established at Yaoundé, Douala and Gama. The allegation isnot sup-
ported by the authority referred to 1°.
15. Applicants sa , furthemore, that "[iln aii dependent territories
other than South LYest Africa, the general practice has been to narrow
the gap between European and indigenou teachers in al1aspects of their
employment" llIn proof of thissweeping statement as to the "general"
practice, Applicants refer to Togoland under French Administration, and
to New Guinea. In regard to Togoland they Say that "[als early as 1949,
European and indigenous teachers ... were placed on a completely
G.A., O.R.. FifteenSess..Suppl. No. 15(A/4371), p.51 (para. ~39)~
3IVide para.6.supra.) ).
VideIV, p. 402,footnote 4. Thepage of the report cited by them dealmith
Tanganyika.
lbid., footnote 5.
G.A., 0.R. .welfth Sess., SuppI, N4.(A/3595) p. 144 (para. 286).
IV, p.402 (para. (d)).
8 Ibid.footnote 6.
9 Ibid.. text at footnotand report citein footnot 8.
10 Ibid., footnote 7. The report mentioned by Applicants merely notes that "voca-
tionalschoolhsavebeen or will beset up" at the three places rnentioned. NOmention
ismade of their racial character.
Ibid.p. 402(para. (8)). RE JOINDER OF SOUTH AFRICA 163
equal footing", and refer to a Trusteeship Council report in which it is
stated that '[a]s regards teacher-training, the annual reports stated that
under the arrêté of 18 Decernber 1949, the staff had been reorganized
and European and indigenous teachers placed on completely equal
footing, the only distinctions made being on the basis of diplornas" l.
It iç not clear, in Respondent's submission, whether the report refers to
all teachers (as Applicants say), or only to teachers connected with
teacher-training establishments.
In regard to New Guinea, there is nothing in either of the two reports
cited by Applicants to support their above-quoted allegation. The first
report in no way deals with conditions of employment of European
and indigenou teachers 3. From the second report cited it appears that
there were 236 noil-indigenous and 565indigenous teachers at Adminis-
tration schoois in the territory. Nothing is said of conditions of employ-
ment.
It is clear, in Respondent's submisçion, that Applicants have in no
way established any "general practice .. .to narrow the gap between
European and indigenous teachers in al1aspects of their ernployment".
It is, furthemore, not correct to Say that there has been no narrowing
of the gap between conditions of employment of European and Native
teachers in South M'estAfrica 4.
1. Somaliland under Itaiian Administration
16.Applicants conclude their Annex 5 by citing "the development
in Somaliland under Italian Administration" as an example of the
"promotion of the moral well-being and the social progress of al1 the
inhabitants, of a territory by implementing non-discrimination in
education" 6. Their reasons for choosing this territory as an example
arestated to be the following:
"Somaliland is chosen becaue Italy was faced with natural
obstacles exceeding those of South West Africa when Somaliland
was made a Trust Territory on 2Decernber 1950. The Somalis were
nomadic people to a degree far greater than that of the indigenous
inhabitants of South West Africa. The population density was
extremely low (two persons per square kilometer). Finally, unlike
South West Africa, Somaliland was very poorly endowed with
natural resources, and as a resuit the Territory couId il1affordhigh
expenditures oneducation 5."
Particulars of this nature would no doubt have been relevant if they
had been followed by evidence of increased educational facilities or
1 G.A .O.R., SixthScss.Sirppl No. 4 (AI1856) p. 199. Irnay lxpointed out that
in 1947 there \vas a.European population of 1,082in the Territory as against943,364
Africans. Two yearslater the respective figures xvere Europeans 841, Africans
970,IV, p. 402, fmtnote,IO.th Scss.SuppI So. 4 (A11306). p. 80).
3 Applicants, reference may be toG.A.O.R. F,iftcenihScss., SuMl. N4.(A/qqoq).
p. f45,where it appears that II non-indigenous teachers took up employment at
indigenous schools. But nothing is said of conditions of employment.
+ Vide III,pp.456 and 505.in regard to salary increases in the case of European
andNative teachers; vrd6 also pp. 532-533.
"v, pp. 402-403.
Ibid., p402.164 SOUTH WEST AFRICA
increasing school attendance figures, but their relevnnce to the onIy kind
of "development" mentioned by Applicants, viz., the presence of a few
hundred Somali children in Italian, Indian and Pakistani schools l, is
not apparent, and isnot explained by Applicants.
Applicants Saythat "[a]t the outset of the Trusteeship perjod, petitions
filed before the Trusteeship Council claimed that Somali and ltalian
pupils in elementary schools were completely segregated" l,but their
allegation is not supposted by the report they cite =.It appears from this
report that Somali students were adrnitted to Italian schools"following
an entrance examination" 3,and that the Adrninistering Authority stated
that "pupils were admitted without discrimination to al schools in
Somaliland" 3.
The figures of Somali pupils attending non-Somali schools, as cited by
Applicants 4,are correct. It appears from the relevant reports, however,
that what Ap~licants cal1"Italian" schools lvere, in fact,Italian, Indian
and Pakistani schools 5. Respondent points out, furthermore, that the
distinction between Italian and Somali schoolswas rnaintained through-
out the periodof trusteeship, and that the former, which were attended
principally by Italian children, offered the metropolitan curriculum,
whereas the latter were "adapted to the particular rcquirements of the
population of the Temtory" 6. The Italian population, always a small
part of the total population of the Territory ',fell frorn 4,858 in about
1955 to 2,331 in about 1958 9.
r7. Reports of the Trusteeship Councilreveal the following particulars
in regard to school enrolments in Somaliland during the trusteeship
period :
In 1950-1951there was a total enrolment of 7,479in al1schools i.e.,
about 1.5 percent. of the schooI-agepopulation". In 1954-195 w5h,n the
totalnumberof schoolchildren stood at rr,z19~~,the representativeof one
country remarked at a meeting of the Trusteeship Council on the con-
siderable increase in elementary schoolenrolrnent 13,while the represen-
tative of another country noted that "only some 4 per cent. of the school-
l IV,p. 403, andvide infra.
Ibid.footnote 5. The page of the report cited deals with another territory. If
Applicants' referencwas intended to be to p. 97ofthereport, this pagealsodoes
not support their allegation.
3 G.A.O.R., Sixth Sess., Suppl. No.(AIIB~G), p.97.
' 1V.p.403.
G.A..O.R.,TendhSess., SuPpI 30.4 (Aj2933).atp. 140; andG.A .,O.R. ,welfth
Sess.Stdppl. NO.4{A/3595), p.97.
Vide ibid., Sixth Sess., Szrppl. No. 4 (AJ18p6. 97;G.A., O.R.,Ttnth Sess.,
Su@pl. No. 4 (A/2933), p. 140G..4.,O.R., ForrrfeesthScss., SuppE. X.+(.4/41oo)
p. 86.
' About 0.3per cent. in 1950. Vide figuresG.A., O.R.. Sixth SESS.,Suppl. No. 4
(AI1856 )..81.
C.A.. O.R., Tcnth Sess., SupplXo. 4 (A/zg33), p. 107.
* Ibid., Fijteenth Sess., Sufipl..+(A/4404). p.86.
l0 Ibid.. Sixth Sess., SupKo.4 (A/rS56),p. 97. The report states that attendance
was "noticeably lower than the enrolment figures". (Ibid.}
l1 Ibid., p.81, for populatifgures. The percentage calculation is on the assump-
tion that school-age children constitute 23 per ceofthe total population. (Vide
1x1P.. 444.)
G.A..O.R.. Tenlh Sess., Suppl. Xo4 (A/zg33), atp. 140.
l3 Ibid., p. 142. REJOINDER OF SOUTH AFRICA 165
age children attended school" l. In 1956 it was noted by a member of
the Council that "[eJven from the city population only 17 per cent. of
children of school age attended school" *. In 1957a United Nations
Visiting Mission noted "that the enrolment of children in schools was
low, being 12,557 in 1956-195 w7hiIe the target of the five-year plan
had been 22,090" î. In 1958-1959total enrolment in al1 schooIs in the
country increased to about 18,600 4.
18.As appears from al1the aforegoing, Applicants have in no way
demonstrated how "implementing non-discrimination in education"
promoted "the moral well-being and the social progress of al1 the in-
habitants" of Somaliland under Italian Administration. Beyond showing
that a fervhundred Somali studentsattended Italian, Indian and Paki-
stani schools, Applicants have failed to show how the implementation of
"non-discrimination'' played any part at al1 in the development of
education in that country.
l G.A., O.R., Tcnth Sess,, Suppi, Noq (A/zg33),p. 142.
G.A., O.R., EleventhSess., SüppI Xo.4 (A/317o), at p. "5. In thiyear ,lso,
the Council, remarking on the continued use of languages other than the children's
mother tongue, viz.S,omali, asthe medium of instruction, drew the attention of the
Somali Govcrnment tothe view expressed by Unesco that "many experiments in
this field conducted in various countri. .have showri that the use of languages
otherthan the mother tongue in prirnary educationrïduces the effectivencsf of the
(Ibid.,p.112.)en and tends to discourage pupils from pursuing their studies".
G.A., O.R., Fourteenth Sess., Suppl. No. 4 (Alqroo), at y. 56 (para. 227). The
school age-populationin1957\vas estimated by Unesco at 225,000 children between
5 and 12 years old. (Ibid.)
* Ibid.,para.22s. SECTION H
Thc Economic Aspcct
CHAPTER 1
INTRODUCTION
I. In the Rlemorials Applicants dealt with the economic situation in
South West Airica in two separate parts headed, respectiveiy, "WeU-
Being, Social Progress and Developrnent in Agriculture" and "Well-
Being, Social Progress and Development in Industry". At the end of
each ofthe said parts Applicants formulated a concludingcharge l.
In essence each of these charges was one of a "deliberate, systematic
and consistent course of conduct" which not only failed to promote to
the utmost the well-being of the Native population of South West Africa
but, on the contrary, had the very opposite effect, namely that it "in-
hibit[ed] [their] weU-being", "prevent[ed] [their] social progress and . . .
development", and "reverse[d] possibilities of social progress [for thern]
into a steady rcgression" l.
In other words, Respondent here also stood indicted of impropet
motives, i.e., of exercising its powers of administration with the un-
authorized object of preventing progress on the part of the Native
po dation, and even of reversing possibilities ofprogress for them.
bpon this understanding of Applicantsl case 2,Respondent in the
Counter-Nemorial dealt in detail with the aspects of well-being, social
progress and deveiopment relating to the economic position of the
inhabitants of the Territory, and particularly of the Native inhabi-
tants.
2. In keeping with their reaction generally to the mannes in which
Respondent met their case in the Counter-blemorial, Applicants in the
Regly attempt to widen their charge also in respect of economic con-
ditions in the Territory by reliance on an alleged "nom of non-discrirni-
nation or non-separation", although not expressly mentioning it by that
name.
Thus, in the introduction to their trcatment of the economic aspect
in the Reply, Applicants first inform the Court that "Respondent's
purported explanations of the particular measures by which it effectuates
the policy of aflartheidevade A$+licantsJ centralfioint .. .",and that
Respondent's "characleriration" of Applicants' case "misses the ccentral
point utissue" The Courtis then told that Applicants' "central point"
1sthat "... the policy ofapartheid itself violates Respondent's obligation
to promote the weii-being and progress of the inhabitants of the Tem-
1 1,pp. 1x7 and 130.
* videII, pp.392-395
111,pp.2-103.
4 Vide Part III,sec. Aparas. 2-10,supra.
5 IV,p. 404. (Italics addesavefor the word "apartheid".) REJOINDER OF SOUTH AFRiCA 1~7
tory" '. And the reason advanced by Applicants for this contention is
that-
". .. the inherent eviI of [apartheid] lies in the allotment of status,
rights, duties, opportunities and burdens on the basis of membership
in a 'group' ortribel".
This proposition is later repeated with reference to the foliowingstate-
ment in the Counter-Mernorial, which, according to Applicants, reflects
the "premise underIyingURespondent's "apartheid policies", viz.,
"In the history of the Tenitory there has at all times been social
separation between these groups, and experience hasshown that
members of each group prefer to associate with members of their
own group, and that certain kinds of contact between members of
these groups tend to create friction2."
Applicants Say that "such a premise and policy is (sic)wholly repugnant
to Respondent's obligation to promote the well-being and social.progress
ofthe inhabitants.of the Territory" 3.
Admittedly the policy of separate development applied in South West
Africa basically involves differentiation between the various population
groups in the Territory; but it is denied that the said policy can, by
reason merely of such differentiation, be regarded as repugnant to Re-
spondent's obligation to promote the weI1-beingand progress ofthe inhab-
itants of the Territory. In this regard Respondent refers to what has been
stated in section Cof thispart of the Rejoinder with regard toApplicants'
alleged legal norm of "non-discrimination or non-separation".
3. It is apparently on the basis of their reliance upon the said norm
that Applicants seek to exclude from consideration much of the infor-
mation submitted by Respondent in the Counter-Memorial. Thus they
state that-
"[slpecific measures of implementation of the general policy of
apartheid, or separate development, merely illuminate and confirm
the nature and consequences of that policy .. .l",
andthat such measures are "highly relevant" but, apparently, only in so
far as they "give dimension and efiect to that policy" l.Whatever al1this
might mean, it seemç to be intended to provide the basis for Applicants'
further averments that "the bulk of the Counter-Mernorial, including
Book V [which deals, inter dia, with the economic aspect] is concerned
with largely irrelevant minuticas" l, and that "little if any purpose is
served by Respondent's lengthy examination of the details of restrictive
laws and regulations designed to effectuate that policy" 3.
In so far as Applicants rely on the aforementioned norm, it w0.d
indeed be unnecessary for them to go into details of measures which
admittedly involve differentiation as between ethnic groups and their
members. But in so far as Applicants persist in the charges of irnproper
motives advancedin the Memorials, it is hard to see how any information,
however detailed, which can throw light on Respondent's real motives,
can be regarded as irrelevant.
' IV, p.404.
IV,,p.405, and IV, 405.168 SOUTH WEST AFRIC.4
4, Applicants indeed proceed, as in regard to other aspects of their
case concerning their Submissions 3 and 4, to advance factuai allegations
that wouid be unnecessasr and irrelevant in the event of reliance solely
upon the alleged nom of "non-discrimination or non-separation". They
rely here also on so-called "current norms" l and "recognized stand-
ards" 2, against which, it is contended, Respondent's policies and
practices should be measured. In this regard Respondent refers to what
haç already been stated in general regarding the relevance of such vague
andundefined norms and standards to thematters in issue 3.ICespondent
deals later with the specificallegations made by Applicants when sceking
to apply these so-called "norms" or "standards" to certain aspects of
Respondent's economic policy '.
5. Applicants further persist in the Reply with a charge that Respond-
ent's legislative measures and administrative acts relative to the econo-
mic aspect are purposely directed at preventing the progress and develop-
ment of the Native inhabitants of the Temtory.
In thiç respect Applicants state in the Reply :
"Furthemore, as in the case of restrictions upon rights of residence
and movement, Respondent's major premise concerning the role
and place of the 'Native' in the Police Zone infectsspecificnzeasures
of economic apartheid with an zcnacceptable design l." (Italics added
and footnote omitted.)
In support of this contention the foIlowingis advanced:
"Thus, Respondent explains its policy of dealing with 'idle per-
sons' in the Police Zone on the basis that-
'. ..it involves removal from an area in which their $resence
serves no purpose i?zth absence of willingness to work, to a place
which is their real home. These considerations do not apply to
\f1hite or Coloured persons whose only reaEhome may be in urban
and firoclaimed areas 5.'
Respondent thus by fiutand by policy denies to the vast majority
of the inhabitants of the Territory, including those spendinga large
part of their working lives in the Police Zone, any possibility of a
'real home' in 70 per cent. of the Territory (whatever the quoted
phrase ~ignifies)~."(Footnote ornitted.)
It is to be noted that this charge, although concerned with measures
implementing Respondent's policy, is advanced by Applicants in out-
lining their case in the "Introduction" to their treatment of "The Eco-
nornicAspect". In the circumstances Respondent feelsconstrained to deal
with it at once, and to point out that the charge, and the conclusion of
"unacceptable design" derived therefrom, rest on nothing more than a
rendering out of context, distortion and unwarranted general application
of an explanation given by Respondent in the Counter-Memorial with
regard to a particular legislative measure.
The explanation in question was concemd with a provision in the
2 Ibid., pp. 417-418
Vide sec. C, paras32-39,supra.
+ VideChap. II. paras. 95-103, and Chap. IV, paras1-7infra.
5 Quoted from III. p.218.ItaIics added by Applicants.
IV,p. 405. REJOINDER OF SOUTH AFRICA 169
Native (Urban Areas) Proclamation of 1951', which empowers a Native
Commissioner or hlagistrate, who kas upon due enquiry declared a
Native within an urban or a proclaimedareato be an idle person 2,inter
alia,to order that such Native be removed from the urban or proclaimed
area and sent to his home 3.
As \vil1be shown hereinafter, this provision is applicable, in so far asit
concerns ersons who could be affected thereb ,to only a small number,
namely i8 e Natives in urban or proclaime cr areas who have homes
elsewhere, and it is operative only in respect of a very small part of the
Tenitory, namely the urban and proclaimed areas.
6. There are at present in South IVest Africa 30 "urban areas", 21 of
which have been declared "proclaimed areas" in terms and for the pur-
poses of the said legislation +.The total extent ofland in respect of which
the provision in question is operative is 394,688hectares 5, representing
0.69 percent. of the Police Zone, or 0.48 per ccnt. of the whole Territory.
The total Native population of the said areas ai present is 70,459 5.It is,
of course, impossible to determine how many Natives within the said
areas are potentially idle pcrsons who, having their homes elsewhere, are
liable in terms of the provision in question to possible removal from such
areas to their homes. In fact, however, only 5 Natives have, in terms of
the said provision, actually been removed frm urban or #rockaimedareas
as idle personsover theEastfive years
In the light of the above, it is clear that Applicants have misused
Respondent's explanation, which they quote in the Reply. Wiereas the
provision in question is operative only in respect of a very fimited part of
the Territory, i.e., the total extent of urban and proclaimed areas, repre-
senting 0.48 per cent. of the \t,holeTemtory, Applicants for the purpose
of their argument simply extend its operative effect to "70 per cent. of
the Territory" 6.And, whereas the provision potentially affects only a
very limited number of perçons, i.e., idIe Natives in the urban and pro-
claimed areas who have homes elsewhere, Applicants for the purpose of
their argument sirnply render it applicable to "the vast majonty of the
inhabitants of the Territory, including those spending a large part of
their working lives in the Police Zone" ?.
In the premises, it is clear that Applicants' allegation that-
"&spondent thus by fiat and bi poIicy denies ta the vastmajmity
of the&habitants of the Territory .,, any possibility of a.'realhome'
in 70 per cent.of the Territory (italics added),
restsupon a distorted version of Respondent's explanation, and thatthe
'Ploc. So. 56of igjr, sec. 26 iThe Laws ofSouth West Africa 1951,Vol. SXX.
pp. r44-146. as amended by Ord. No. 2j of 1954in The Laws of South West Africa
1954,Vol. XXXIII (11)pp. 736-752.
For the definition of an "idle person" in the said legislativide IIIp. 215.
Ibid., p.2x5.
areas. the proclairnecl areas are in fact urban areas; there are no other proclaimed
nepartmental information.
* IV, p.405. 90 indicationisgiven as to the manner in which Applicants have
calculated this percentagc.
Ibid. In a footnoteApplicantaver that the latter admittedly number more than
r?o,ooa ond they refm to IIp. 402. The figure of ~70,720 there givwas the total
Native population of the whole of the Police Zone according to the 1960 Census.
IV, p. 405.170 SOUTH WEST AFRICA
allegation is false. It is hardly necessary to add that Respondent denies
A~~licants' further contention that-
"... Kespondent's major prernise concerning the sole and place of
the 'Native' in the Police hne infects specificmeasures of economic
afiartheidwith an unacceptabIe design l",
a contention in support of which Applicants, in the present context,
advance nothing other than the false allegation aforementioned.
In so faras Applicants' contention regarding improper motives on the
part of Respondent is repeated later in the Reply relative to particular
policies or measures in the economic sphere, Respondent will deal there-
with in answer to Applicants' specificailegations.
7. The rest of Chapter IV I3.3.c.zof the Reply is devoted to an attack
by Applicantson Respondent's economic policies, and to criticism of par-
ticular economic measures and conditions. Applicants divide their treat-
ment thereof under the following heads:
General considerations 2.
The reserves 3.
The Police Zone 4.
Conclusion j.
In reply to Applicants' allegations under the above heads, Res ondent
will in the succeeding chapters follow the order in which the sailallega-
tions appear, save where a particular matter is raised by Applicants
undcr more than one of the aforementioned heads, in which case it will
be convenient to deal therewith comprehensively under one of the said
heads only 6.
8. Before proceeding to deal with Applicants' specificcharges, Respond-
ent makes the following general observations:
(a) In their treatrnentof the economic aspect, as in their treatment of
other aspects of government, Applicants in the Reply also criticize
policies and conditions in South Africa. Respondent has already
explained its attitude in this regard, and the approach which wiii
be followed in answering Applicants' avements '.The economic
sphere, in particular, is one in which the conditions prevailing in
South Africa differ in many respects from those in South West
Africa, and in which the policies applied in South Africacannot be
properIy evaluated without a complete picture of the economtc
conditions prevailing in the Republic, and without a systematic
and detailed explanation of such policies and their applicatron-a
task which, for reasons already stated ', will not be undertaken by
Respondent. Respondent will, however, in keeping with the ap-.
proach which has been indicated, deal with Applicants' specific
allegations relative to economic policies and conditions in South
Africain order to meet Applicants' criticisms in as brief a manner as
l IV,p. 405.
2 IV, pp. 405-4x4 and alsoAnnex 6 (1),pp. 426-430.
' Ibid., pp.414-417.
' Ibid., pp.417-424 and also Annex 6 (z), pp. 431-438.
' rb~d., pp.424-425. . --
The narts of the Annex rcf.rre-~t- - --ootnotesz and 4.sufifa.will bedealt with
under the heads towhich their contents relate. ,. >
' Videsec. A, para. 24.supra, and sec. D. supra. REJOINDER OF SOUTH APRICA I7I
possible, without entenng into a systematicor detailed discussionof
çuch policies or conditions.
(b) Also in the part of the Reply now under consideration Applicants
have raised new camplaints '.In this respect the remarks contained
in section D, supra, apply, viz., that although in its submission not
obliged thereto, Respondent will for the sake of completeness
answer such complaints in this Rejoinder, but that in the nature of
things its treatrnent thereof cannot be as cornplete asit wouldhave
been had these complaints been raiçedproperIy and timeously.
1 E.g., complaints relative allegcd"cheap" or "low-cost" labour (TV,pp406
and 408) and complaints relativeto legislative measures such as the Workmen's
Compensation Act, No. 30 of 1941 (ibid., p. jrG), SocialPensions Amendment
Ordinance No. z of 1962 (ibid., p. 4171, and the LIotor CarrierTransportation Act.
No. 39 of 1930 (ibid.. p. 420). CHAPTER II
GENERAL CONSIDERATIONS
A. Introductory
r. In thisChapter Respondent deals with the various matters discussed
by Appiicants in Chapter IV B.3.c.2.(B)of the Reply under the heading
"General Considerations" l,which matters can for convenience be
grouped under the following heads:
(a) Applicants' allegations regarding the "structural foundation" and
"premise underlying" Respondent's policy of apartheid.
(b) Migratory labour in South \iTestAfrica and the implications thereof.
(c) Applicants' allegations regarding low wages in the Territory.
(d} The ri hts of Natives in respect of the acquisition and occupation
of ianf.
(e) The position of Natives in the mining industry.
(f) The opportunities of employment for Natives in the Railways and
Harbours Administration.
(g) Applicants' allegations regarding a policy of ''laisser-fairewith re-
spect to tribalism".
(4 Applicants' allegations regarding economic conditions in dependent
territories2.
Respondent wili, in dealing with Applicants' allegations, follow the
order indicated above.
B. Applicants' Allegations regarding the "Structural
Foundation"and "Premise Underlying" Respondent's
Policy of Apartheid
2. This topic is introduced as follows in the section of the Replyunder
consideration :
"Respondent's policy of a$artheid,as applied to the economic life
of the inhabitants of the Territory, rests, as has been shown, upon
the same structural foundation, and reasoning as does Respondent's
policy of apartheidin education 3."
Later in the same section of the Reply this allegation is repeated in the
following terms: "Economic apartheid is necessarily based upon the
same major remises as is educational apartheid" 4.And the "premise
underlying [ a espondent'sj educational and other apartheidpolicies" is
described b Applicants with reference to the followingstatement made
by Respon c int in the Counter-Memorial:
"In the history of the Temtory there has at al1times been social
separation between these groups [the European and Native popula-
'IV, Pp.405-4'4.
Ibid.,Annex 6 (1)PI) 26-430.
3.Ibid., 405.
4Ibid.p,. 407. REJOINDER OF SOUTH AFRICA I73
tion groups], and experience has shown that members of each group
prefer to associate with members of their own group, and that cer-
tain kinds of contact between members of these groups tend to
create friction l."
This statement was made by Respondent in explaining the reasons
underlying certain provisions in the mining regulations of the Territory,
in accordance with which there is separation between the European and
Native popdation groups employed in certain posts in the mining indus-
try. The statement is correct as far as it goes, but isnot, and was not in-
tended to be, a full exposition of the circumstances and considerations
which influenceand shape Respondent's policiesgenerally inregard to the
administration of the Tenitory. Such an exposition was given in another
part of the Counter-&Iemorial 2,where Respondent dealt fully with the
particular circumstances of the Territory; with the ethnic, linguistic and
cultural differencesbetween the vanous population groups; withthe differ-
ences in stages of advancement attained by them;and with their develop-
ment, against the background of history, on the basis of çeparation be-
tween thegroups. It isinthe light of all these circurnstances and considera-
tions that Respondent's olicies and practices in South West Africa are
to be seen and evaluated?
Such policies, for the reasons stated by Respondent, do involve the
adoption of mcasures which recognize, and as far as ispracticable give
effect to, the principIe of separate deveiopment of the different groups,
and to their wishes in that regard. This applies in al1spheres of adminis-
tration-educational, economic and other. In this sençe it is correct to
Saythat a general or common prernise underIies Respondent's "education
and other aParlAeid policies" in South WestAfrica,and that "Respondent's
policy of apartheid, as applied to the economic life of the inhabitants of
the Territory ,rests ...upon the same structural £oundation and reasoning
as does Respondent's policy of apartheid in education" 3.
3. However, Applicants' conclusions as to the effect of, and the in-
tention underlying, the appIication by Respondent of its policy to the
economic life of the inhabitants of the Territory, are as unwarranted as
are their conclusions relative to Respondent's educational policy.
In this regard Applicants say-without any justification, in liespond-
ent's submission-that-
"[tjhe education received by the 'Native' child prepares the 'Native'
adult for his distinctive role in the economic life of the Territory,
that of agricultural or industrial labourer ... Denial of equality in
the educational sphere leads to a denial of equality in al1 other
spheres, not only as a conscious continuation of 'the deliberatedesign
thatfieniades the severalparts'of thelifeof theTerritory,but also as an
inevitahh consequence of the lack of educational training. Educa-
tion and economic status are inseparable, as are economic statusand
political rights and oppodunities +." (Italics added and footnotes
omitted.)
Respondent of course accepts the proposition that there is a necessary
l IV,p. 40j asquoted in 111p. 55.
* III, pp. 399-488.
IV,p. 405.
+ Ibid., pp405-406.I74 SOUTH WEST AFFUCA
and close relationship between education and economic status, and that
denial of opportunities in the educational sphere must lead to a denial
of opportunities in the economic sphere. The question, however, is
whether the application of Respondent's policiesis intended to have, and
in fact have, the alleged effect. Indeed, Applicants' cornplaint is not only
that Respondent's educational policy as applied in the Territory has the
effect of denying opportunities in education, and therefore economic
op ortunities, to the Natives, but that Respondent's policy is designed
to ave that effect. Thus they speak of the "distinctiveyole[ofthe Native]
in the economic life of the Territory, that of agncultural or industrial
labourer", for which the "education received by the 'Native' child pre-
pares the 'Native' adult", and of a"deliberatedesignt" o that end l.(Italics
added.)
4. In support of the aforementioned charge Applicants quote the
Committee on South lest Africa to the effect that-
". .. beyond some minor teaching and rnenial positions at the
lowest levels, their training and education seems (sic)directedmerely
to preparing the 'Natives' as a source of cheap labour for the benefit
of the 'Europeans' (Italics added.)
This statement appears in the 1960 report of the said Committee,
which, although dealing, interalia, with educational conditions in South
West Africa, contains no factual averments which could justify this
conclusion. In fact, the Committee had before it the report of the I 58
Commission of Inquiry into Non-European Education in South &st
Africa 3, which descnbed in detail the then existing conditions relative to
the education of the Native and Coloured groups in the Territory,and
which contained proposals for extending and improving facilities for the
said groups. The report of the Commission in itself belies the charge that
opportunities in education are denied to the Natives, and that Res ond-
ent's educational policies and practices are directed to that en ci.Re-
spondent can only conclude that the Committee on South West Afnca
must, in making the aforernentioned charge, have been influenced by
false and preposterous aliegationscontained in petitions submitted to the
United Nations by organizations and individuals, or made in oral state-
ments by petitioners who appeared before the Committee. Thus, in its
report the Committee cited from petitions to the effect that the object of
the system of "Bantu Education" was to "teach African children from
childhood that they are inferior to 'Europeans' " 4, and that the said
system had been "introduced by the Union Government in order to
prevent the people from reading books and newspapers through which
they might be informed about the world situation" 5.
5. Although both these accusations are so preposterous and palpably
lIV, pp. 405-406,
Ibid., p.406,as quoted by Applicants from G.A.. O.R..Fifteenlh Sess.. Suppl,
No. 12 (A/4464),P. 56.
3Report ofthe CoinnaissionoInquiry intoNon-Euvopean Education in South West
Afvica (1958)u~npul-ilished.
G.A., O.R.,Fitteertfh SESS,uPpI. NO. 12 (A/4404),p.54. This statcmeiitinthe
petition of Senior Headman (also referred to as chief) Hosea Kutako was also
referred toby Applicants in 1,p. 158,and was dealtwith by Respondent in III.
PP. 531-532,
' G.A., O.R.,FifleenthScss.,Suppl. No. 12 (A(4464),p. 54. RE JOINDER OF SOUTH AFRICA
I75
false as to merit no discussion, the Cornmittee on South West Africa
attached sufficient importance thereto to record them in its report. In
this regard Respondent draws attention to siiniiar false or exaggerated
statements made by petitioners ta the United Nations, inter alia, with
regard to educational and economic conditions in South West Africa,
which statements were relied upon by Applicants in Chapter VI of the
Memorials, headed "Supplemental Material in regard to the alleged
violation by the Union ofArticle 2 of the Mandate". Respondent dealt in
the Counter-Memorial lwith the extracts from the petitions cited by
Applicants, and demonstrated not only that the accusations made were
for the most part false, exaggerated or misleading, but also that such
petitions emanated largely from what may be called a group of "pro-
fessional petitioners", united by a common purpose to end Respondent's
administration of South West Africa by al1means 2.
In this regard it is significant that the petitions which, in the words of
the Committee on South West Africa, were "taken into account by lit]
during its examination of conditions in South West Africa" 3,appear on
the whole to ernanate from the same sources as the petitions upon which
Applicants sought to rely in their Memorials 5.
It is therefore strange that Applicants in the Reply should place
reliance upon the conclusions of the Committee on South West Africa,
which appear to be based, at least to someextent, on the allegatians ofthe
said petitioners, whereas Applicants have not even attempted to refute
or even to deal with the subrnissions made by Respondent in the Counter-
Memorial relative to such petitioners and to their accusations.
The conditions in the Territory relative to the education of Natives,
and the facilities and educational opportunities provided for them, have
been dealt with fuIly in 'the Counter-Memorial 6,and have again been
treated ofin section Gof this Rejoinder.
In the light of what has been stated, Reçpondent emphatically denies
the unwarranted conclusion of the Committee on South West Africa that
"their training and education seems directed merely to preparing the
'Natives' as a source ofcheap labour for the benefit ofthe 'Europeans' ", '
and points out that Applicants themselves offer no evidence in support
of the conclusion.
6. Respondent Zikewisedenies the charge made by Applicants that
the education received by the Native in South West Afnca prepares hirn
fora "distinctive role in the economiclife of the Territory, that of agricd-
tural or industrial Iabourer" *.
Not only is this accusation contradicted by evidence furnished re-
garding the educational facilities and opportunities actually provided for
l IV, pp. 1-46.
* Ibid.p,. 46.
+ Ibid., pp. 7-8.eenfkSess., Su$pl.No. 12 (A/q464), p.7.
1, pp.167-rSo.
fiBook VI1 (III).
With regard to the Cornmittee's allegation of"cheap labour", vide paras. 43
et seq.injra.
a IV, p. 406. Vide also in this connectionthe allegation made by the Special
Committee on South IVest Africa, asquoted hy Applicants at IV, p. 408, viz.,
". ..except for a few minor activities in [the] townships or locati[the Natives]
have no economic possibilitiesother than wage labour".176 SOUTH WEST AFRICA
the Native groups of South West Africa, both in the Terntory itself and
in South Africa, but it isalso contradictedby the stage of advancement in
fact attained by many Natives of South West Africa in the economic
field.
There is not, as Applicants allege, a "distinctive role" intended for the
Native "in the economic life ofthe Territory". It is true that the majority
of the Natives who are wage-earners are employed as semi-skilled and
unskilled workers in enterprises established bÿ European initiative, but
this is not so by reason ofa denial of educational or economic opportuni-
ties to them. It is due to the fact that the Natives generaUy are stillon a
path of transition from a traditional economic and social system to a
modern one.
Respondent has already demonstrated the progress made by many
Natives in advancing from the limited role generally played by Natives
in the economy of the Temtory at the inception of the Mandate to
increased part~cipation at progressively higher levels in agriculture
induçtry 3, commerce +,and the generaladministration of the Territory 5.
In further elucjdation thereof, the following liçthas been compiled of
occupations held by Natives in the Territorynot employed as labourers or
engaged in farming activities 6:
No.
I. Professional, technical and related worker ........ 1,348
2. Administrative, executive, managerial worker. ...... 140
3. Clerical worker .................... 212
4. Sales worker ..................... 606
5, Miner, quarr-man and related worker .......... 64
6. ihrker in transport and communication ......... 1,038
7. Craftsrnan, production worker ............. 2,040
8. Service, sports and recreation worker .......... 14,597
9. Fisherman, lurnberman, hunter, etc. ........... 1,185
21,230
It will be obçerved that the nurnber of Natives in the aforementioned
occupations totalled 21,230,which figure represented 4.95 percent. of the
total Native population of 428,575in 1960, and 12.69 per cent. of al1
Natives economically active in that year (167,344) 6.
That Respondent's policy has been directed not only at creatjng
increased economic opportunities for the Natives, but also at protect1n.g
the Natives in their own areas against cornpetition by Europeans, 1s
clearly evidenced, not only by the general exclusion of Europeans
from the Native reserves, but also by the protective measures adopted
urbanareas ofthe Territoryive7.in the townships occupied by thern in the
Extension of Respondent's policy of separate deveiopment through a
sÿstem of homelands forthe different population groups, as proposed by
' 11,pp.404-414.
111,pp. 1-39,
Ibid.. pp.40-100.
Ibid., pp.101-103.
$Ibid., pp.139-166.
Departmental information.
videIII, pp. 102-103. REJOISDER OF SOUTH AFRICA I77
the Odendaal Commission l, would, in Respondent's subrnission, lead
to ever-increasing opportunities for the Native at al1leveis, as mucli in
the economicsphere as in others.
In the Reply Applicants have, Save for repeating criticism of certain
particular measures or conditions relative to the economic aspect-which
criticism will be dealt with hereinafter-not thought fit to traverse the
factual ground covered by Respondent in Book V of the Counter-
Riernorial. They simply brush it aside as being "concemed with largely
irrelevant miaittiae" 2.In the result nothing has been advanced by Appli-
cants in the Keply to support their charge that there is a "deliberate
design" on the part of Respondent to relegate the Native in South iVest
Africa, in so far as the economic life of the Territory is concerned, to
the "distinctive role" of "agricultural or industriai labourer" 3,Save the
view expressed by the Committee on South West Africa, which, for the
reasonsaforestated +,must be rejected.
7. Although their intention is not clear, Applicants seem to suggest 5,
with reference to an extract from the report of the Commission on
Native Education 1949-195(1 the Eiselen Commission), that there is
a lack of educational trainingin the Territory. In the first place, the said
Commission dealt with Native education in South Africa, and not with
conditions in South West Africa.
Secondly, the quotation from the Commission'sreport, which can be
misleading if read in isolation, does not, when read in its context, in any
way support a view that there is a lack of educational training of the
Natives. In the part of the report referrcd to by Applicants, the Commis-
sion mentioned the desire on the part of the Bantu in South Africa to
have the same curricula and examinations as are found in European
schools, with the object of obtaining the same educational certificates as
the Europeans. The Commission explained that the desire for the same
certificates by the Bantu had an econornic motivation, based upon a
reasoning that without equaI certificates the Bantu wodd not have a
claim to equalpay.
The Commission fully realized the relationship between education and
economic opportunities, but said in this regard:
"The enunciation of an economic policy lies beyond the scope of
the work of this Commission. Attention, however, must be drawn to
the fact that much of what is taught and learnt in Bantu schools IS
never applied in practice, because the economic incentives which
should operate when children leave school are either absent or of
such a nature as to undo the work of the schools. The reform of these
economicconditions cannot be the function of an Education Depart-
ment, but the success of the work of the schools is dependent upon
the existence of social and economic opportunities for absorbing
the products ofthe schools 6."
Contrary, therefore, to what Applicants suggest the Commission did
not find that there was a "lack of educational training". It felt that
Vide IV. pp. 475-483,R.P. No. i211g64. pp. 81-107and 213.
IV, p.404.
Ibid., p. 406.
+ Vida paras.4-5,supra.
IV, p.406. footnote 3.
U.G.53-1951, P. 704.17~ SOUTH WEST AFRlCA
economic opportunities should becreatedtoabsorb the educatedproducts
of the schools.
It was in the course of considering economic factors relative to edu-
cation, that the Commission referred to the desire of the Natives for the
same certificates, which, inter alia, elicited the foIIowingcomments from
the Commission :
"From the evidence presented to the Commission it seems quite
clear that teachers, parents and children alike arefar moreconcerned
with the obtaining of certificates than they are with the deeper
values of education l",
and-
"The attitude of the Bantu toivards their schools, their culture,
and their languages, are highly coloured by existing economic
conditions which are such as to emphasize out of tme proportion
certificates and skills marketable among the European population
or in State em*lov*ent =."
Since the Commission issued its report in 1951 ,here has not only
been a substantial increase in the educational facilities and opportunities
offered to the Bantu in South Africa, but, as will be demonstrated here-
inafter 3, progressively more and more economic opportunities have
been created for "absorbing the products of the schools".
8.In stating the proposition that "[e]ducation and economic status
are inseparable, as are economic status and political rights and opportu-
nities" 4,Applicants refer to adverse allegations and comments regarding
policies and practices in South Africa, which they then seek to apply to
South West Africa because, as they allege, "precisely the same considera-
tions and circumstances apply in the Territory"
Respondent firstly wishes to point out that the last allegation is un-
founded. Although it may be correct to Say that basically the problem
is the same-because of the fact that in South West Africa, as in South
Africa, there are different population groups at different stages of devel-
opment, a situation which gives rise to differences in participation by the
groups in the economic sphere-the economic conditions and circum-
stances differ widely in many respects as between the two countries.
It would,however, beout of place to enter into a systematic comparison
of conditions and circumstances as they exist in South Afnca and in
South West Africa;and, indeed, such a task would be unnecessary as, in
Respondent's submission, the criticism of South African policies relied
upon by Applicants is devoid of substance, as wilibe shown immediately
below.
9. Thus Applicants cite the foiiowing comments by Professor de
Kiewiet in a lecture delivered in january 1956 and published under the
title TheAnatomy ofSouth African Misery, viz.:
"A special theory is developed in which the economic life of
society is subordinated to its political objectives, so that non-
' U.G. 53-1951.P. 43.
Ibrd., p. 104.
+ IV,ep.406..11-13,infra.
Vbid., footnote 5. REJOISDER OF SOUTH AFRICA I79
European workers are not free to improve their standard of living
if therebythey seek also fo gain added$oliticaEopfortunity or social
advancement l."
The theory suggested by Professor de Kiewiet as underlying Respond-
ent's policy in South Africa is that the Bantu should not develop
politically, and tliat, in order to prevent his advancement in the po-
litical sphere, he is denied opportunities of economic advancement.
That there is no such theory underlying Respondent'~ policy is clear,
not only from what has been specifically stated by Respondent to be the
objectives of its poIicy, but also fromwhat has infact been accomplished
by Respondent in the implementation of that policy.
Professor de Kiewiet's condemnation of Respondent's policy rests on
a complete misconception of the basic principles of that policy. This is
clear from the following statement made by him in the very lecture to
which Applicants refer, viz. :
"In the concretc language of economicç and politics afiariheidis
actually a system in which the power of the state is used to maintain
the economic and political supremacy of the white community over
a population of approximately ten million Africans, Indians and
coloured men 2."
That the objective of Respondent's policy is not to maintain supremacy
of the White community over the other population groups, politically or
economically, has been repeatedly stated at the highest government
levels, and has been evidenced by the advancement achieved by the said
groups. With regard to their political achievements, Respondent refers
to what has already been stated in the Counter-Illemorial and elsewhere
in this Rejoinder +.These considerations in themselves disprove the
theory propounded by Professor de Kiewiet, namely that because Re-
spondent wishes to withhold political rightsfrom the Bantu, it curbs their
economic advancement.
IO. Professor de Kiewiet's aiiegation is also disproved by what has in
fact been done by Respondent in improving economic conditions for the
Bantu in South Africa.
Respondent does not in this regard propose to present a survey of the
economic position of the Bantu in South Africa, but will cite a few
authorities who have sludied the position and have expressed themselves
thereanent ;and, in so doing, perhaps a natural starting point $vil1be to
quote Dr. W. W. M.Eiselen, the Chairman of the Commission on Native
Education 1949-195 w1h, isalso relied upon by Applicants.
Before doing so, it is necessary to point out that the excerpt from Dr.
Eiselen's article in Optimaw ,hich appears in the Reply ',may, if taken
out of its proper context, create a wrong impression. What Dr. Eiselen
said in this article, whicwas written in 1959, was the following:
"So it seems to the writer and to most members of the European
electorate, as well as to many enlightened representatives of the
Bantu and other groups, that the maintenance of White political
' IV, p.406, footnote 5.
De Kiewiet,C. W., The Anatotny ofSortthAfn'can Miser)(1956).. 49.
11,PP 477-483.
Vide secs.E and Frsupra. SOUTH WEST AFRICA
supremacy over the country as a whole is a sine qua non for racial
peace and economic prospcrity in South Africa l"
Indeed, as Applicants Say, this is the converse of the position takenby
Professor de Kiewiet, namely that in order to keep the non-Europeans in
South Africa from gaining added political opportunity, they are restrained
in economic developrnent.
What is clear is that Dr. Eiselen was not so much concerned with
describing declared government policy, as with possible futuredevelop-
ments. In the same context he cited Sir Percivale Liesching, then High
Commissioner for the United Kingdom in South Africa, to the following
effect:
"The High Commission Territories are advancing into a consti-
tutional syhere, into more representative forrns of government, but
it is not to be foreseen that their progress along these lines, whiis
the policy of Her Xajesty'ç Government, ivould ever mean that they
would advance to the status of independence comparable with
Ghana, that is, complete independence within the Comrnon-
wealth
XI. Since SirPercivale Liesching and Dr. Eiselen expressed the afore-
menfioned views in 1958 and 1959 ,espectively, much water lias flown
under the bridge of political developmcnt of the Bantu both in the High
Commission Territones and in the Bantu homelands in South Afnca 3,
and problems regarding the eventual political rights of the Bantu, which
Dr. Eiselen described as "problems for the future" l, have been resolved
much sooner than he could esrerhave foreseen. Hoivever, whatever doubt
Dr. Eiselen might have had as to the political future of the Bantu peoples,
he had no doubt asto the path of economic progress plaiined for them
in South Africa. In the very article from which Applicants have taken the
excerpt quoted in the Reply, Dr. Eiselen outlined the plans of the Depart-
ment of Bantu Administration and Development, of which Department
he was then the Secretary, for the economic development of the Bantu in
South Africa. He saidin that regard that-
"[tlhose Bantu who remnin behind on the land wil1, as full-time
progressive farmers, be tauglit to make the maximum productive
use of their ground and livestock in their ohvninterest and that of
their community. For the othcrs, many of whom still migrate to our
urban and rnining areas in search of work at present, other outlets
are being created. 'fhat is why, in the second place, we are busy
building a series of rural townships in the Bantu areasmany of them
on sites recommended by the 'romlinson Commission. Since X9j4,
18 of these pIaces have been laid out and proclaimed, and a further
47 are at various stages of development and JI sites are being
esamined frorn this point of view. The purpose of these townships iç
to provide a source of livelihood for those inhabitants of the Keserves
mho have had to leat-ethe land, by opening opportunities for them
in trade, the professions and administration, while it is also antici-
pated that the increased production of raw rnaterials to be expected
from the Rantu areas under the new agricultural policy willgradua11 y
1 Opti?naMar. 1959,p. 8.
2 The Cape Argus,12 Sep. 1958.
' 11,PP.477-483. REJOIKDER OF SOUTH AFRICA 181
lead to the establishment of Bantu industries and factories in such
centres to supplement the others being created or encouraged on the
borders of the Bantu areas but near enough to allow workers to
return home either daily or at least for week-ends. Briefly,therefore,
our purpose js to promote in the Rantu areas that transition from
primitive pastoralism and mono-culture of maize ta a diversified
modern economy, which is essential for the support of any large
population above the mere subsistence level."
And he stated that, in order to give a more direct stimulus to this
process of development ,
". .. we have established a Rantu Investment Corporation with the
South African Native Trust as sole shareholder, specially to promote
and encourage the economic development of the Bantu areas, by
indeydia, 'the provision of capital or means, technical and other
assistance and guidance, the furnishing of expert and specialized
. advice, information and enlightment .. . the encouragement,
extension and establishment of existing or new industrial and
financial undertakings in Rantu areaç .. . the encouragement of
thrift and the planning and promotion of capital accumulation by
Bantu .. . and the promotion of Bantu self-help in the economic
sphere' .
To prove the increasing interest that the Bantu themselves are
showing in commerce, 1may mention that over the last seven years,
from 1951 to 1955 he nurnber of Bantu traders in their own terri-
tories has almost doubled itself, rising from 3,871 to 6,032 l."
12. As further evidence of the advancement of the South African
Bantu in the economic sphere, Respondent quotes the following authon-
tativestatements :
(a) Projessor Wilhelna Ropke-Professor at the graduate School of
International Studies,Geneva:
"Exhaustive figures would be superfluous here, because it is a
matter of record that South Africa,along with Western Europe,
North America, Japan, Australia and New Zealand, belongs to
the definitelgr well-to-do nations. Its Bantu population partici-
pates to such a great extent in this prosperity that its standard
of living far exceeds that of the inhabitants of al1the other
African countries 2." (Translation.)
"Al1statistics prove, in addition, that noivhere in Africa is the
Negro so well paid, provided with such good living quarters, so
well fed and so well dressed as he is inSouth Africa 3."(Trans-
lation.)
(b) AIZen J. Ellefider-Member of the Senate of the United States of
America :
"South Africa is exceedingly p;osperouç, and the people5 of
al1 races are in varying measures sharing in that prospenty.
Consequently, the great majority of them are happy and
contented. The natives are eaming better wages and enjoying
l Opti~ia, Mar.1959,p. ro.
Ropke, W., "Südafrika. Versuch einer Würdigung", Schweizer Monafshefte,
No. 2,44thYear (May ~964).pp.97-112. atp. 101.
Ibid., p108. SOUTH WEST AFRICA !il
greater benefits in respect to education, health, and housing
than the black man in any other country of Africal."
(c) Démians d'drchimbnud-in an article published in La Revue
Française :
"One can say in conclusion that it is undeniaHe that the
[South African] Bantu is by far the best nourished African
people, the best dressed, the best homed aiid the best educated
in Africa. In ten years time, it is probable that this country so
maligned today willhave become the incontestable leader and,
I am persuaded thereof, uncontested in Africa south of the
Sahara *."(Freetranslation.)
(d) Projessor Henry Nofstetter-Professor of the Indiana University,
United States of Arnenca:
"1 would be very much surpriçed to find another country
governed by \mites where the Non-Whites are given such a
square deal in the economic fieldas in South Afnca 3."
(e) Marcus D. BanghardVice-President of the Newrnont Mining
Corporation,United States ofAmerica:
"The Bantu races ofSouth Africahaveexperienced great chan-
ges in purchasing habits and living standards and are now spen-
ding someR 700million (P Iiilion) per year on domestic purch-
ases. The own four times asmany automobilesper capitaas the
people or Rusria. The market opportunities offered by the
development and advancement ofthe Bantu are enormous 4."
(f) ClarenceB. RandalGretired board Chairman of Inland Steel Co.,
United States of America, and adviser to Presidents Kennedy and
Eisenhower of the United States:
"How has the Bantu fared under this policy of separaiion?
First ofall, hehas today, beyond question, the highestpercapita
income of aii the black races in Africa-an income that exceeds
that of the citizens of Ghana or of Nigeria, for exarnple. His
opportunity to earn makes him the envy of al1his neighbours to
the north, as witness the fact that 20,ooo of them endeavour
each year to enterSouth Africa illegally 5."
(g)M. R. ,M. Dale-Canadian Trade Commissioner in South Africa,
isquoted to the effect that:
"South Africa was doing more for its indigenous populatio,n
than any other country ... South Africa provided in sucha way
for the non-White population that they disposeof considerable
purchasing power 6."(Free translation.)
(hl MY.Garfield Weston-Canadian businessman, is reported to have
said that-
1 United States of America: 88th Congress, 1stSession-Senate-A Report on
United StatesForeign Operatéonsin Africsby Honorable Allen J. Ellender, United
States Senator from the State of Louisiana (1963).121.
La Revue Fran$aise, No. 139 (Apr. 1962),p. 19.
3 bahrtu. Aug. 1960p. 482.
ibid., Apr.1962,p. 227.
The Reudev's Digest, Vol. (Oct. 1963). p47.
6 Die Transvaler,28 Aug. 1961. p.z. REJOINDER OF SOUTH AFRICA 183
". ..the Government was raising the livingstandards ofAfricans
by fiveper cent. a year.. .l".
The above serve as examples of statements which have been made by
persons who have observed the economic conditions of the Bantu in
South Africa. These examples can be multiplied many times.
13. The following table, which reflects the occupational distribution
of al1 economically active Bantu in South Africa as on. 7 September
1960,other than labourers or Bantu engaged in fanning activities, further
illustrates the degree of economic advancement reached by the Bantu in
South Africa:
TABLE
Number ofNatives
Occu~ations emjhloyed
I. Professional, technical and related worker ... 48,714
2. Administrative, executive, managerial worker. . 4,796
3. Clerical worker ............... 19.472
4, Sales worker ................ 28,473
5. Miner, quarryman and related worker ..... 3,136
6. Worker in transport and communication .... , 64,402
7. Craftsman, production worker ........ 76,487
8. Service, sports and recreation worker ..... 720,593
g. Fisherman, lumberman, hunter, etc. ...... 29,165
Total ... 993,238
14.Applicants, after stating that economic apartheid, being "based
upon the same major premises as is educational apadheid ... produceç
identical results with respect to the inhabitants affected" 3,Say:
"The 'Coloured' inhabitants fall between the 'Natiye' and the
'European' groups, and reflect pet another application of the
a#artheidpolicy, inasmuch asthe rights, opportunities and burdens
of the 'Coloureds' are likewise wholly allotted on the basis of mem-
bership in a group 4."
It is correct to Say that the CoIoured people of South West Africa
constitute a separate population group, and that in the application of
Respondent's poticies they are treated as such. It is also true, in a sense,
that they faIl between the Native and European groups, inthat, intevalia,
in the economic sphere they generally stand on a level higher than the
Native groups but somewhat below the Europeans. Eut this is so not
by any decree of Respondent. It flowsnaturally from the fact that they
have generally reached a stage of development exceeding that attained
by the Native inhabitants of the Territory, but still below that of the
European inhabitants.
Respondent, moreover, denies the accusation of the Cornmittee on
South West Africa that Respondent aims at "keeping the coloureds as
a group apart, superior to the Natives but inierior to the Europeans",
Sunday Express, 15Nov. 1964.
Population Census, 1960:Sample Tabitlafion, No. 5-InduslryDivisims,Age
tabIe 3.2p.o56.ccupaiional Groups-Bantu (Mar. 1963).table3.1.pp. 52-55and
As to thisproposition vide par2,supla.
' IV,p. 407.184 SOUTH WEST AFR~CA
lvhich accusation Applicants quote in the section of the Reply dealing
with education ',and aIsoincorporate by reference in their treatment of
the economicaspect.
There is no question of a forcible keepin apart of the Coloured group
against its wishes. It is the desire of the ? oIoured people to be treated
as a separate group, and Respondent acts in observance of that dcsire;
but not, as the Cornmittee suggests, by placing them in a position
"superior to the Natives but inferior to the Europeans". Respondent
fias alreadyçtated 3,and here repeats, that its policy of separate develop-
ment, which involves, interdia, the treatment of the Colouredpeople as a
separate group, isnot based on a concept of superiority or inferiority, but
solely on the fact that the people of the various groups are different.
Indeed, there is nothing in Respondent's poIicy to prevent the Coloured
people generally, or individuals from amongst them, from developing
to a stage ofcivilizationand prosperity equalling or surpassing that of the
Europcans.
C. Migratory Labour in SouthWestAfrica,
andthe Implications thereof
15. Although Applicants in thc Mernorials mentioned the fact that
Natives recmited from the northern areas have to return to their homes
after completion of their contract periods, which may in no case exceed
two-and-a-lialf years 4, they did not make a substantive cornplaint re-
garding employment of migratory labour in the Territory. Such a com-
plaint isnow newly introduced in the lteply, and it is accordingly neces-
sary to devote more s ace to a treatment thereof in this Rejoinder than
would othenvise have geen the case.
In the succeeding paragraphs this subject wiil be dealt with under the
followingheads :
(a) the role of migratory Iabour in the economy of South West Africa;
(b) migratory labourinother countries;
(c) the extent to which the labour force in the Territory is in fact
migratory ;
rd) future developmentsregarding the system ;
le) AppIicants' criticisms of the system.
16. That the labour employed in the Territory is partly migratory
is a natural consequence of the social and economicconditions prevailing
in the Territory, a full exposition of which was given in the Counter-
Mernorial 5.
From the information there furnished it is clear that the situation in
South West Africa resernbles that found throughout Africaand elsewhere
2iIbid., p407, footnoteI.
II, p.471.
4 Vide1,p. 12+.
II,pp. 409-414and III,pp. 4-103. KEJOINDER OF SOUTH AFRICA 185
in underdeveloped countries of the world, in that there are two sectors
constituting the total of the Territory's economy. This situation is bnefly
described as follows in the report of the Odendaal Commission:
"The economy of South West Africa may be described as a dual
economy, consisting of a predominantly modern money or exchange
sector and a traditional subsistence sector l."
The modern sector of the Territory's economy comprisesfarming, min-
ing, fishingand other productive enterprises conducted in accordance with
modem commercial principles. These enterprises create labour require-
ments, and offer opportunities of gainful employment not only to the
inhabitants of the said sector, but also to persons whose homes are
elsewhere. From this sector there can be distinguished the traditional,
or indigenous sector, populated by the majority of the Natives of the
Territory, who still largely adhere to the traditional pattern of a sub-
sistence economy, but many of whom are at the same time desirous of
earning a monetary reward for services in the modem economy.
Respondent has already explained that, in the circumstances afore-
stated, the best course tliat could beadopteduvas to concentrate upon and
encourage a rapid developinent of economic enterprises in the modem
sector as growth points for further development of the economy of the
Territory as a whole. It was economically the most rational and practical
method ofemploying the available reçources oftlie Territory. The modern
sector would in this process not only produce income wliich could be
applied towards development of the Temtory as a whole, but would also
provide increased and more diversificd opportunities of gairiful employ-
ment to theinhabitants ofthe Territory.
The only contributory role which the traditional sector could play in
the course of such economic development would, at least in the earlier
stages, be the provision of labour for reward. Ho~vever,~vithprogress
in the education of the indigenous population and their understanding
of modern economic systems and methods, development could in the
course of time and as capital became available gradually be extended
from the modern to the traditional sector.
17, In this pattern of economic growth it was only natural that, for
some time at least,' the modern sector would continue to be better
developed than the traditional Sector. Such a result is the natural
consequence of economic development being fostered in a backward
economy, and its very existence is regardcd as a sign of progress. In the
words of Albert O. Hirschman, Professor of International Econornic Re-
Iations at Columbia University, U.S.A.,
".. . we may take it for granted that economic progress does not
appear everywhere at the same time and that once it has appeared
powerful forces make for spatial concentration of economic growth
around the initial starting points "".
The sarne authorit~ goeçso fa; as to advocate the creation of imbalances
in order to stimulate economic growth. Thus he says:
"Whatever the reason, there can be little doubt that an economy,
to lifl itself to higher income levels, must and will first develop
-
l R.P. No. 12/1gGq,p. 315.
* 11,PP- 409-414.
Hirschman, A. O.. The Slvaiegy of i?conoinicDevelopment (I~p. 183.I86 SOUTH WEST AFRICA
within itself one or several regional centres of economic strength.
This need for the emergence of 'growingpoints' or 'growth poles' in
the course of the developrnent process means that international and
interregional inequality of growth is an inevitabIe concomitant and
condition ofgrowth itself l."
In South West Africa, as welI as in many African countries, the growth
points referred to by the said author have been created and rnaintained
by Europeanentrepreneurs whohave established themselves as producers
ofmineral, fishingand agricultural products.
The situatiorl described by Applicants, namely that "[alreas of the
Temtory occupied by 'Europeans' are in al1respects economically well-
developed in cornparison with the areas occupied by approximately 75
per cent. of the 'Natives' " =,is a situation norrnally encountered where a
modern economy has been introduced to countries with an indigenous
population practising a traditional subsistence economy. Indeed, as
stated by two other economists:
"The Creator has not divided the world into two sectors, devel-
oped and under-developed, the former being more richly blessed
with natural resources than the latter. Al1developed countries began
by being underdeveloped by modern standards, which are the
operative ones; indeed they remained in this state until quite
recently 3."
The resultant effect mentioned by Applicants, namely that " 'Native'
labour will,to a significantdegree, be drawn from the reserves to service
the more advanced 'European' economy" 2, is likewise a normal and
inevitable concomitant. In this regard it has been stated in a United
Nations study that-
". ..where immigrant settlers from advanced economicbackgrounds
establish themsclves as producers for export in the midst of a tradi-
tional economy .. .it draws away part of the labour resources of the
traditional economy into wage-earning employment 4".
In such a pattern of development migratory labour is a normal, and very
often inevitable condition, brought about by social as well as economic
considerations.
18.Despite its known disadvantages, to which reference is made
below 5,the migratory labour systemhas positive advantagesboth for the
migrant worker and for the economy in which his services are employed.
Although it is an inevitable feature of the system that the worker is
temporarily separated from his family during the periods of lis employ-
ment, the system enables him to obtain a cash income without sevenng
kis traditional ties and tribal relationships. These ties and relationships
are often so strong that many Native workers would not be wiliing to
settle permanently in the modern economy sector if that entailed a
sacrifice of their accuçtomed agricultural and social ways of life. As
l Hirschman, op. cil.pp. 183-184.
IV, p.407.
Bauer, P.T. and Yamey, B. S., The Economiw of Undev-developed Countrles
(19601,p.46.
U.N. DOC.E13137, ST/ECA/57, StructureandGrowfh of SelectedAfricanEcono-
mies (1958)p,. 2.
Vide paras.20-21.infra. REJOINDER OF SOUTH AFRICA 187
stated by William Watson of the University of Manchester, an authority
on migrantlabour:
"As long as Africans have secure rights to the use of tribal land
they willchg tothe land, to the subsistence it provides, and to their
tribaliçm, for this offers a secunty they understand l."
A United Nations publication conceming the Federation of Rhodesia
and Nyasaland contains the following:
"As yet, there seems to be a rather strong resistance among the
African labourers to settle their families in town. Quite apart from
the need for suitable housing, rupture with the traditional tribal and
village surroundings, and facing a new life on an individual family
basis among people from other villages and tribes-perhaps with
other languageç-free from the traditional checks and restrictions,
and subject to unfamiliar western laws and law enforcement, cause
the African to hesitate =."
And, in a survcy of African labour, the International Labour Office
observed that the Native worker-
". . . while prepared to adopt work for wages as a more or less
permanent means of subsistence ... is not prepared, at least under
the conditions now prevailing, to give up contact with the village
from which he has corne, since he considers that there alone lies
security for him in old age and in periods of sickness or unemploy-
ment 3".
To these people migratory labour, which offers an opportunity of satis-
fying specific needs demanding cash means, obviously represents a practl-
cal solution, \l'hile the worker is employed away from his home, the
members of his family continue in the ordinary way with their farrning
operations in the traditional sector.And, not only are they in this manner
provided with sustenance during the absence of the workman, but their
presence and activities on the land ensure that the workman retains his
land rights, which ~vodd, in accordance with Native law and custom, be
lost to hirn if he and his family were to remove therefrom and leave it
unoccupied.
In so retaining his rights to tribal land the worker remains assured of
a living in times of industrial recession and economic depression, when
his services cannot be utilized in the modern economy and unernployment
results, or wl-ien for shorter or longer periods he prefers to live in the
tribal area rather than work in the modern sector, and also when, as a
result of il1 healthor old age, he can no longer hold employment. This
aspect is dealt with by rinother authority, W. EIkan, as foiiows:
"A permanent move to town would ...involve giving ap apart of
income and also of course,a potent form of insurance against hazards
of industrial life. This remainstrue whether the wage in town is low
or high, whether or not family houses are available and irrespective
of what social insurance may exist for wage eamers. Unless a
' Watson. W.. "Migrant Labour in Airica South of the Sahara-2.Migrant
Labour and Detribaliantion", InterfricanLabov7 Institute Bulletin, VI,NO. 2
(Mar. 1959)p.p. 8-33. at p30.
U.N. Doc. E/3137, STIECA157,Structure and GrowthofSelectedAfricanEcono-
mies (1958) .P.73-74.
' International LabourOfficeAjrican Labour Survey (1958). p. 138-188 SOUTH WEST AFRICA
permanent withdrawal from the countryside is actually made a
condition of employment in the town, worlrers tvill tend to hold on
to their land and the income and security which it affords l."
Another economist who has noted this tendency, William J. Barber,
States:
"In taking up the options whch are open to him as the money
economy expands, the African has appeared to demonstrate a
rationality in his economic behavior. It is, however, a rationality
which can only be understood within the context of the dualistic
economic structure within which he lives. If he isa wage-earner, he
iswell advised-as long as the real wagcobtainable from employment
in the inoney economy remains at its traditional level-to kcep a
'foot in two camps' by moving between the money and the indigenous
economies. He dare not risk a sacrifice inthe output of the subçi-
stence agricultural community which would follow from his continu-
ous absence. This situation recommends perpetuation of the migra-
tory system-an arrangement which is both rational and economic,
even though it may not appear so tothe European employer or to an
outside observer who expects rational economic behavior to take the
same form in both the underdeveloped and Western economies Z."
The system of migratory labour does not, however, offer advantages
only tothe individual worker. It is beneficial also to the general economy
of the traditional sector, in thatthe worker brings back tothe said sector
cash emolurnents, which raise local levels of living and assist in the eco-
nomic developments of the area, as well as esperience, lvhich can be ap-
plied in the process of development of that sector. Another advantage of
the system is that it ensures that employment, and opportunities of earn-
ingcash wages and gaining experience, are not confined to a fortunate few
employed on a permanent basis, but that tliese are spread out and ex-
tended to a much larger labour force on a temporary basis.
19. From the viewpoint of the modern economy, the system also has
decided advantages. If'hile the economic enterprises inthe modern sector,
which serve as growth points for the economy of the Territory as a wliole,
can, in making use of the services of the migrant worker, pay him for such
services and provide hirn with sustenance and accommodation, it would
for the larger part be economically impossible to absorb hirn and his
family permanently into the modern economy.
The economy of the modern sector would not be able to bear tlie
financial burden of accommodating and providing a large nurnber of
people, consisting of workers and their familieç, with housing and other
social amenities and facilities such as schools, hospitals, etc. The Terri-
tory's economy, being based upon the exploitation of primary resources,
agriculture, mining and fishing, and being geared to esports of pastoral,
mineral and fishing products, is subject to world market conditions. It
has therefore not only a limited income potential, but is also subject to
1 Elkan , .. "Migrant Labour in Africa South of the Sahara-The Persistence
of Migrant Labour".Inter-AfvicanLabour Insfittrte Bulletin, Vol. VI, 5o(Sep.
1959)P~P- 36-43, aP.42.
2 Barber.W. J.,"Economic Rationalityand Behaviour Patterns in an Under-
developed Area:A Case Study of African Economic Behaviour in theRhodesias",
EconamicDeuelopmentand CulttrralChange. Vol. VIII,No. 3 (Apr. 1960).pp. 237-
251,at p.251. REJOINDER OF SOUTH AFRICA 1~9
large and erratic fluctuations in world market prices and demand1.
In the words of the Odendaal Commission,
"[tlhe basis of its economic activities ishowever still very limited and
sensitive to foreign price fluctuations, while disappointments and
setbacks in the past have led to a cautious policy ofcapital invest-
ment =."
In view of past experience it would be unrealistic to assume that fluc-
tuations and setbacks will not occur in the future, and that unimpeded
growth is assured.A closer look at the facts makes itclear that it will re-
quire a long time (ifit is not altogether impossible) to lessen significantly
the Territory's dependence on primary production with its attendant
instability. However, short of far-reaching changes in the structure of
production, it would be irresponsible, from an economic point of view,
to permit a large-scale settlement of people within the modern economy
sector on this uncertain basis. Droughts, industrial recessio? and econo-
mic depressions would bring about unemployment and make it impossible
for the modern economy sector to maintain its labour force. In this regard,
Lord Hailey, referring to Africa in general, states:
"It is true, on the one hand, that the fluidity of the boundaries
between the subsistence and the money economies contributes to the
long-term stability of the economy as a whole. A people that con-
tinues to produce its own food is less vulnerable to aworld depression
than a people that is largely dependent on the market for its liveli-
hood 3."
And a United Nations Stzkdy on Processes and P~oblems of I~rdt~strializa-
lion in Under-developedCountries has found that the difficulty in stabili-
zing the industrial worker-
"... is in many cases intensified by the instability of empIoyment in
industries that are directly dependent upon foreign trade or senously
affected by it and are sensitive to the fluctuations of the worId
market 4".
Industrial workerç dispIaccd by the adverse effects of fluctuations in
world trade, tend to flock back to the rural areas. As the aforernentioned
study points out,this reverse flow into agriculture has adverse consequen-
ces for Livingconditions there ';but on the other hand it should be obvious
that failing such retiirn to rural areas the alternative would be starvation
in the towns.
20. Admittedly the system of migratory labour has certain adverse
effects, sociaiiy and economically. These result rnainly from the fact
that the worker is separated from his family during his period of employ-
ment, and the factthat temporary employment often makes for mefi-
ciency and waste.
When giving consideration to these adverse effects, sight must, how-
ever, not be lost of the extremeIy dificult process of adaptation which
bearers of a traditional culture inevitabl~ have to face when coming lnto
Vide also paras36-39.infra. in regard to special circurnstances afflabour
in the Territory.
H.P. Ko. 121r964p ,. 333 (para1312 (v)d).
Lord Hailey, AgaA fricanSuruey: Revised 1956 (1957)p. 1314.
Under-deueloped Counlrics (r955)p,22.esscs and Problems O/ Indrrslrialitalinn=go SOUTH WEST AFRICA
contact with the conditions ofmodern civilization. Thus a United Nations
publication observes that-
"... the gulf between the traditional culture of Africans in their
own surroundings and the culture of modern cities remains wider
and deeper than the rural-urban gulf in any other major region of
the world. The problem of transition, as a sociaI and psychological
problem, isthus encountered in Africa in an extreme form 1."
And in a publication from the ssme source it is stated that the transition
from rural peasant to urban industrial worker-
". .. requires, at the point of departure, ernancipation from the
dictates of custom and tradition, and at the place of employrnent,
adjutment toan unfamiliar kind of work and labour discipline, and
assimilation to a new type ofsocial environment. Peasantpatterns of
work and leisure are generalIy incompatible with the demands of
machine work and factory discipline 2."
It is also observed in this publication that-
"[i]n many instances, therefore, the undesirable social consequences
of indutrial development reflect incongnüties between the demands
of industrialization and the established ways of pre-industrial so-
cieties3".
Elsewhere in the Reply ' Applicants, in dealing with Respondent 's
influx control measures, aver that the "tme cause' 'of socialevils, such as
prostitution, venereal disease, alcoholisrn, crime and the like,
". ..is not to be found in the fact that 'Natives' congregate in urban
and proclaimed areas; it is in fact found in the discriminatory sys-
tem of migretory labour itself. Splitting of families, an evil attribute
of the systern Respondent nowhere seeks to justify, generates many
of the evils the influx cantrol policy is designed to meet '."
And in support of this allegation Applicants refer to a report of the
United Nations Economic Commission for Africa, in which it is stated
that the disruption of family life by a system of migratorylabour creates
situations which "breed the problems of venereal disease, prostitution,
crime and delinquency" '.
It is, however, a fact that the socialevilsin question are found in many
cities and towns of developing countries where there is no migratory
labour, but where people from traditional societies come into contact
with modern civilization.
Thus it has been stated in a recent United Nations RePorton the World
SocialSituation :
". .. inthe process of transition, of breakdown of oid social forms
and creations of nelv ones, there is a particularly dangerous phase
when attitudes and behaviour may be ~vithout anchors, controiied
1 U.N. Doc. E/CN.5/324/Rev. I,ST/SOA/33, Report on the World Social Siluution
(19571,P. 147.
2 U.N. Doc. E12670. ST/ECA(zg. Procts~es and Problems of Industvializalionin
Under-developed Couniries (1955)p. 21.
Ibid., p.IT~.
IV, p.467. REJOIXDER OF SOUTH AFRICA =gr
more by passing winds of demagogy, faddiçm or mob spirit than
by established values of home and comrnunity l".
Respondent must, however, not be understood to underestimate the
adverse effectç of the migratory Iabour system. What Kespondent wishes
to emphasize, is that at least part of the cause of the undesirable pheno-
mena often attributed to a system of migratory labour is to be sought in
the difficultieswhich are experienced independently thereof by mernbers
of traditional societiesin adapting themselves to the conditions of modern
economies and the ways of modern civilization.
21. That the system of migratory labour inevitably entails social
sacrifices, stands beyond doubt. But, it is Respondent's contention that,
on objective appraiçal, the adverse effects of the system are far out-
weighed by its advantages in the process of developin a modern economy
in an under-developed territory such as South \.est Africa. Indeed,
in the present circumstances of the Territory, as isalso the position in
many other territories in Africa having as yet under-developed economies
and largely backward population groups, a system of migratory labour
appears to be the most practical method of utilizing the available econo-
mic resources and fostering economic development.
Thus Lord Hailey, though drawing attention to the unfortunate social
consequenceç of the system 2,remarked as follows:
"It seems inevitable that in the existing circumstances of Afnca,
the labour market should be in a large measure dependent on floating
or migrant labour. It is, as the East African Royal Commission of
1953- has observed, the only system through which a considerable
section of the African population can now meet its needs. For many
Africans itis not possible to gain a higher income level for the sup
port of their families without wage-earning, and th migrantlabour
system appears as th mmt economicchm'cewhich they can make,
howeversocially undesirableitmay be 2." (Italics added.)
The Inter-Afncan Labour Institute,while drawing attention to, and
emphasizing, the adverse effects of the system of migrant labour, has
çtated :
"There are other more general conçiderations which should not
be left unnoticed. In the conditions of African industrial develop-
ment migrait labour is no doztbta necessary Phase: some bridge has
to be thrown across the gulf separating tribal and modern econo-
mies 3." (Italics added.)
And the United Nations Cornmittee on Infovnaationfrom Non-Self-
Governing Territories, though stating that in a system of migratory
labour-
"[tlhe disadvantages of excessive movement and instability are
many. There is Ioss of time and energv, wage levels are low, possi-
bilities for training afew and continGtp in employment is lacking.
The separation of the worker from his family leads to the perpetua-
UN. Doc. E/Ci;.5/346/Revr, ST/SOA/4z, Report on thWorld Social Situa-
tion (1961)..25.
Lord Hailey, An Af~ican Suruey: Revised 1956 (195p. 1387.
"The Human Factors of Productivity in AfricA:Preliminary Survey", Inlev-
A fricanLabour Institul2nd Ed. (1960),. 93.Ig2 SOUTH WEST AFRICA
tion of low levels of rural productivity and sometimes to social
disorganization l",
nevertheleçs concluded that-
"[hlowever undesirable extensive labour migration may be, ilcaa be
viewed as an vnawoidablestage O# the economicdevelopmentin these
[the Eon-Self-Governing Territories l". (1talics added.)
zz. Respondent, recognizing the economic advantages of the system,
and permitting it to operate in the Territory to an extent which will be
explainedhereinafter 2,has, at the same time, sought tocurband counter-
act the social evils attendant in the system by adopting appropriate
control measures, and by providing housing, social amenities and health
facilities.
III. MIGRATORY LABOUR LN OTHER COUNTRIES
23. The dualistic economic pattern in South West Africa-i.e., a total
economy compriçed of a modem as well as a traditional economy-is
largely characteristic of African economies as a whole. Thus, in the \ïrords
of a United Nations publication regarding African economies,
". .. at the present stage of their developrnent the economies of
African countrics are heterogeneous economies; therefore, in ana-
lysing their significant structures and relations it would be mislead-
ing to deal with them as if they were homogeneous modern money
economies 3".
It follows as anatural corollary that the systcm of migratory labour is
a common phenomenon in most African territories. Prof. D. Hobart
Hough-on of Rhodes Universitv states that the system-
". .. has arisen throughout the continent [ofAfrica] wherever foreign
enterprise and investrnent and new contact with world markets have
drawn Africans out of their primitive subsistence economies '".
And a United Nations publication, in which ecoiiomic conditions in
Africa are revieïved, describes the labour position as follows:
"A considerable part of the African labour supply consists of mi-
grant workers seeking employment, in somecasesin areas far distant
fromtheir country of origin. In certain regions-for example, in the
Gold Coast, and in the plantation areas of eaçterri Africa-thcre isa
seasonal migration which follows a pattern common to many other
parts of the world at harvest time. The most important migrant
labour in Africa, however, is of a non-seasonal type, in mining,
industrial and commercial areas. The migrants are almost evclusively
males in their most productive years, most of whom return after a
period to their tribal homes, though many leave again after a short
stay. There is therefore an almost continuous movement back and
forth 5."
C.A., O.R. .ixteenth Scss.Suppl. Xo. rg (A/47S5),p.53 (para.75).
Vide paras.27-28.infra.
U.hr. Doc. E(3137,S'T/T:Ci2/57,StvucturaitdGvowth of Selected African Econo-
mies (1958), p.3.
Smith, P. (Ed.),Africa in Tvansifio(rg58),p. 39.
' U.N. Doc. E/191o/Add. ~/Hev. I,ST/ECA/g/Add. I(1951)~Review of Economic
Conditioirs iir Africa.74. REJOISDER OF SOUTH AFRZCA I93
With regarddto the estent to which migrant labour is emploped in
African territories, Guy Hunter quotes the Report of the Director-Gen-
eral to the FirstAjrican Regio~talLabour Conferertceof the International
Labour Organisation to the effect that-
-
"[o]f the 12 to 13 million adult males in Southern, East and Central
Africa, it is estirnated that 5 million are absent from their tribal
homes, engaged on wage labour l".
24, As an indication of the extent to which the system operates in
certain African territories, Respondcnt gives the following available
particulars, in some cases by suitable quotations froiri authoritative
sources, and inothers by a brief statement of thc facts culled from such
sources:
(a) The British High Comntission Territories
(i) Baszltoland
"It would seem, therefore, that the Territory is depnved every
year of a proportion-generally estimated to be bettveen 50 and 60
per cent.-of its able-bodied men 2."
(ii) Bechuanaland
Estimates of the absence from the Territory of male workers
Vary from 27.5 percent. in xg3S-rg40, to 50 per ccnt. inlater years 3.
(iii) Swazilafid
Absence of male workers from the Terntory is estimated at 25
to 30 per cent.
(b) Moçambique
It is recorded that in 1958, 112,450 workers proceeded from hloçam-
bique to South Africa, and 47,345 to Southem lihodesia '.
"According ta Portuguese sources, there were at the end of 1953
155,000 workers from Moçambique in Southern lihodesia 5."
(c)Southern Rhodesia
According to the 1951 census, the immigrant labour force totalled
nearly ~47,000 as compared with 271,000 indigenous Iabourers em-
ployed at that time. The distribution of migrants by origin was roughly
86,000 from Nyasaland, 48,50 0rom Northern Ilhodesia, nearly ~oz,ooo
from hIoçambique, and the balance from elsewhere 6.
". ..in 1957-19jS, Southern Rhodesia recruited in Nyasaland more
than 15,000 workers who were added to some qo,ooo who had al-
Hunter, G.,The New Societies of TropicAfrica(1962),p.201.
Lord Hailey,Aa AjvicanSurvey :Revised 1956(1957)~p. 137%
Ibid., p. 1380.
il.ligvant Laboztr in AfSouth of the Sahara (C.C.T.APublication,No. 79,
19'1Oblath. A., "InternationMigrations in Africa South of the Saha~Migvation
iVews.12th Year, No. 6 (Xov./Dec. 1963). 5-10, atp.8.
Lord Hailey,An African Stluve: Revised 1956 (1957)p~.1380.I94 SOUTH WEST AFRICA
ready been in Southern Rhodesia a long time. At tbat time 20,000
workers from Northern Rhodesia were in this territory l."
(d) Zambia (formerlyhTorthern Rhodesia)
"It has been estimated that taking the territory as a whole at
least one-third to a half of the able-bodied men are normally away
from their villages, the actual proportion varying from as little as
3 per cent. in certain areas near the railway to 70 per cent. or more
in certain outlying areas =."
"Northern Rhodesia had at the end of 1957 about zo,ooo immi-
grants who came principally from Nyasaland and Tanganyika and
who were employed in industry l."
(e) Il.ialawz(formerlyNyasaland)
"The number of adult males in the Protectorate suited for ern-
ployment has been put at about 380,000. It was estimated that in
1954 there were about 160,oooNyasaland workers employed outside
the Protectorate . ..Z"
(f) East Ajvican Territories
(i) Uganda
". .. considerable interna1 movements take place in the last-named
territory, onginating mainIy in certain districts in the northern
and western provinces, where between 40 and 50 per cent. of adult
tax-paying males are normaliy absent from their homes 3". (Italics
added.)
"In so far as the supply is concerned, the question arises-where
does the labour cornefrom? In Kampala[thelargesttownin Uganda],
we find it cornes from al1 parts of Uganda and is very largely mi-
grant 4."
(ii) Tanganyika
In 1954 aItogether 21,350 migrant labourers proceeded from the Ter-
ritoj to mines in Northern Rhodesia, Southem Rhodesia and South
Africa 5,
". . .the number of workers from neighbounng territories, princi-
pally Ruanda-Urundi and Moçambique, was estimated in 1957at
some 55,000. In 1958, the number of workers recruited in Nyasa-
land, in pursuance of arrangements was estimated at about 30,000;
the workers recruited in Ruanda-Urundi, in pursuance of arrange-
ments also, was evaluated at 2,5jo in 1959T .he nurnber of workers
recruited from hfoçambique in employment on July 31, 1959 was
22.751 l".
Oblath. A., "International Migrationsin Africa Souofth Sahara", Migration
News, 12th Year. No. 6(Nov./Dec. 1963)~pp. 5-10, at p. 8.
Lord HaiIey, An Afràcan Survay : Revised 1956 (1957), p. 1381.
International Labour Office AfvicanLabour Survcy (1g58)p,p. 130-13I.
'"Migrant Labour in-Africa South of the Sahara-XIII. Migrants and Proleta-
rianInternational Labour Ofiice, African Labour Suruey (x958),. r3i.62),p. 58. RE JOINDER OF SOUTH AFRICA
I95
(g) Wesl AfricamTerrifuries
(i)Ghana
"hfost inter-territorial migrations in this area are directed to
Ghana, . .. whose mining enterprise and native agriculture are
lnrgely dependent on extra-territorial labour. The I 48 census
B
recorded 53,000perçons from other British territories an 122,000of
other foreign origin in the Gold Coast. The total number of perçons
to enter the territory incrcased from 108,000in 1938 to 392,000 in
1953 .. . Extra-territorial workers originate mainly iii the neigh-
bouring French territories of Upper Volta, Ivory Coast and Togo,
but a considerable immigration also cornes from Nigeria l." (Foot-
notes omitted.)
"... during the period 1953-1954, 253,610 persons entered Ghana
from French territories whiIe 273,897 left the country '".
(ii) Nigeria
". ..no less than 250,000 migrants have been checked lcaving the
Sokoto province of North Nigeria, of whorn three-quarters originated
in the province 3".
(iii) IvorCyoast
"For the Ivory Coast, which also receives a large number of
Soudanese, the Abidjan censuç of 1955 showed that out of 127,600
inhabitants, almost 22,000 were Voltaics, and more than 18,000
Soudanese; according to an investigation made in 1953-1954in the
Abidjan region, 50% of the employed workers were foreigners, of
whom 30% were of Voltaic origin, and, in the south-east, almost
80% of the workers employed were foreigners, of whom 70%
were Voltaics +."
(iv) Liberia
It appears that a significant proportion of labour employed on some
ofthe pIantations isobtained through a traditional system of recruitment
with the assistance oftribal chiefs
".. .the tribal chief [inLiberia] functions in much the same manner
as the 'labor contractor' in the Orient. To ensure that the men wiU
return to perform work forthe chief, it iç common practice to deny
families permission to accompany the men 6."
25. From the aforegoing it is clear that migratory labour is common
to many African countries, in the sense of migrations not only within
the boundaries of a particular territory, but also beyond the boundaries
of certain territories to neighbouring, and even distant territories, to
1 "Inter-Territorial Migrations of Africans South of the Sahara". Inlernalionai
LabourReview. Vol. LXXVI, No. 3 (Sep. 1957), pp.292-310, at p. 306.
International Labour OfficeAfrican Labour Survey(1958).p. 133.
3 Oblath,A.,,"International Migrations in Africa South of the Sahara", migral lion
News. 12thYear, Bo. 6 (Nov./Dec. 1963). p.9.
' International Monetary Fund, The EconomyofLiberia (Prepared by the African
Department and Exchange Restrictions Department, Feb. 1963).p. IO; Taylor,
W. C., The Firestowe Operations in Liberia (19591, p. 67; Anderson, R. E., Liberia:
America's African Friend(1952).p. 136 and vide also III, p. 76.
6 United States Department ofLabor, Labor in Liberia (May 1960)P. 9. SOUTH WEST AFRIC.4
196
which workers are attracted by more opportunities and better wages.
This phenomenon is yartjcularly evident in the liepublic of South
Africa, wlicrc agricultural, industrial and mining enterprises attract
workers not only from the traditional Bantu areas in the Repubhc itself,
but also from neighbouring and other territories, for temporary work in
mines, industries and agriculture. Instructive in this regard is the follow-
ing table, which reflects the distribution of foreign Bantu mine workers in
the Republic on 30 June 1961 :
TABLE '
Coulatry of Origila Emfiloyees
Basutoland ................ 68,311
Swaziland ................. 9,231
Bechuanaland ............... 21,200
Southern Rhodesia
Northern Khodesia ? ........... 47,562
Nyasaland I
hloçambique ................ rI5,728
Other countries ............... 50,312
Total ... 312,344
In addition there were 53,281 foreign Bantu employed in wrb6.t~areas
on 30 June 1961, of whom 35,353came from the three High Commission
Temtories, 4,120 from Mo~ambique and 13,808 from other countries 3.
And the nurnber of foreign Bantu workers in agricztlturalewtploymenl in
the Republic on that date was estimated as 270,000 '. Intotal, therefo~e,
approsimately 63j,000 foreign male Rantu workerç were in employment
in the Republic on 30J~me1961.
26. RIigratory labour is, of course, not peculiar to the African Conti-
nent; it 1salso noticcable in many countries outside Africa where ex-
panding industries and rnining enterprises offeremployment to workers,
including foreigners, who are yrepared to migrate temporarily in search
of highcr wages. An International Labour OAice publication describes the
position as follows:
"Alternating rnovement is now a feature of the ernpIoyment
market in many countries, but at present little dctailed information
isavailable concerning it 5."
Although this particular publication deals largely with labour conditions
in African territories, it mentions the system as operating also in non-
African territories. Thus the following is stated with regard to Turkey:
"hligration from subsiçtence- farrning into tehporary urban
employrnent or seasonal work in commercial agriculture is a perrna-
nent feature of the Turkisli employment market 6."
And it also records that in Yugoslavia-
Afrika" (The Bantu Labour Force innthe RepublicofSouth Africa), baNtic, VoIX,
No. q (Apr. ~gGz),pp. 210-218a,tpp.215-216.
Separate particulars fothesethree countries are not available.
Report ofthe Committee re Foreign Bantu (.4p1962).p. 164.
+Ibid., p.r4e.
'International Labour Offic.. W<v LabourEeavestheLand ,-q60.P- 16.5.
Ibid., p. 170. REJOINDER OF SOUTH AFRICA I97
"About half the industrial labour force (some 600,ooo in mining
and manufacturing in 1953) are estimated to be 'peasant-industrial
workers' of one kind or another. A large proportion of peasant
income is clerivcd from industrial and other non-agricdtural work:
a sample survey covering al1regions of the Republic in1953 showed
that on private farms only GI per cent. of the total cash income was
derived from work on the holding, while 39 per cent. was derived
from off-farni activitiel." (Footnotes omitted.)
In the following sub-pnragraphs a brief illustration is given of the
operation of a system of migratory labour also in other couniries of the
world. In somc cases the illustration is by way of quotations from
authoritative sources, in otliers by a brief statement of facts obtained
from such sources.
(a) Switzerland
"Over half a million foreign workcrs are now being employed in
Switzerland in the course of each year2."
"In August, tlic peak period for seasonal work, there were 550,000
in1961 and 645,000 in 1962, whicli isequivalent to abouta quarter of
al1perçons in remunerated activity in S~itzerland+~."
"As the figures show, the great rnajority of foreign wage-earners
currently employed in Switzerland are non-seasonal workers subject
to control. A foreign worker in this category is not permitted to
change his employer, his occupation or his branch of the economy.
What is more, he is forbiclden to bring his family, either wife or
children3."
(b) FederaE Repztblicof Gernzany(WestGermany)
àIr. hnton Sabel, the Presidcnt of the Labour Exchange and Labour
Insurance; said that-
"[alccording to his statistics there will be only 970,000 foreign
workers in the Federal Republic by the end of September [1964].
Alostof the Foreigners working in the Federal Republic, about 31 pc.
come from Italy, 15 pc. eacli come from Spain and Greece. Re-
cruiting of labourin Portugal has onlÿ started recently. Until today
there u7ereonly 3,500Portugiicse working in the Federal Republic +."
(c) France
According to the Interiiational Labour Review there were 78,879
foreign workcrs in France in 1961, mostly from Italy, Portugal and
Spain. The figure in1962 was 113,01 9.
(d) United Statesof Americu
According to statistics furnished by the Organization for European
Economic Co-opcration, there were in 1957 more than 450,000 immigrant
l International LabouOlfice,Why Labour leaves the Lun(1960)p. 179.
* "PoreignXï'orkerinSwitzerland", International LabortrReview, Vol.LXXXVI1,
No. 2 (Feb.1963),pp.133-155 ,t p.133.
3 Schneiter, E., "Foreign Labourin Switzerland". EFTA Bulletin (Dec. 1963).
pp. 8-12,atp. 8.
+ The German Tribune. Oct. 1964.
InternalionaLabozrr Review. VolLXXXVIII. SO. 2 (Xug.19631,p. 183.19~ SOUTH WEST AFRICA
farm workers employed in the United States, mainly from Canada, the
West Indies and RIexico '. 0
"The United States have, since 1946, attracted a considerable
number of seasonal immigrants, mainiy from Mexico. 'Tot al1 of
these enter the country legally, so that only partial records are
available=."
"The domestic mi ant labor force is augmented by a foreign
migrant labor force O equal number. Ahalf a millionforeign nation-
ah annually come to America to hanest Ourcrops. They comesingly,
leaving their families behind, and work for short periods of time
under contracts with our large faim-factories 3."
(e) lMexico
"The number of agricultural workers involved in annual interna1
migratory rnovements was estimated at about 200,000 in1940. In
1945 ,ccording to the census, there were593,97 workers in Mexican
manufacturing industries. ''
". ..70,000 migrant workers were admitted to the United States in
1950 under a formal agreement tu remedy manpower shortages, in
particular in the south western part of the United States. The
immigration of such workers is complicated by the abnormally large
number ol clandestine entrants to the United States from Mexico;
in 1950f,or instance, soine 565,000illegal immigrants were identified
and returned to Mexico +."
(f) Peru
"Another result of the poverty of the peasants is the emergence of
a Aoating indigenous mal population which is obliged to migrate
periodicaiiy to the coast in search of ernployrnenon the big cotton,
sugar andrice plantations.
OnIy a çmall proportion of Indian labour is full-tirne, however.
Nomaily the Indian altemates between mining work in the high
tablelands and agricultural work in the valley5."
(g) Argentine
"In the north of Argentine several thouand Indians penoaically
leave their tribal homes to work in the sugarplantationsin Salta and
Jujuy. It was estimated in 1940that zg,ooo Toba and Mataco
emigrate each year for this purpose. Thousancls of Indians alsocome
from BoIivia to work in the plantations or in the mining area of
Jujuy 6."
(h)puhi* Rico
"Recently the demand for farm labour in the United States has
given rise to a seasonal type of migration. American farm interests
contract the labourers in Puerto Rico, pay theirtransportation tothe
International Labour Offic,ternational Migration 1945-195(71959,. 1.54.
Ibid., p.153.
United States Senate Cornmitton Labor andPublic Weüare, Sub-Cornmittee
on Migratory Labor, The Migranl Farm Worker in rimeric(rg61)p. IO.
Internationai Labour Office-InternatioLabour Conference, Thirty-Seventh
Session, 195FifthItemonthe Agenda: Migrant Workev( Unde~devcloPedCountrées),
Report v (1 1,953)PP 44-45.
International I,abour Office,citp. gr.
Ibid.p.,55. REJOINDER OF SOUTH AFRICA I99
mainland, and retum them to the island after the hantest. Aslong as
there is fullemployment and high labour wages in the United States,
thistype of seasonal movement rill probably continue l."
IV. THEEXTENT TO WHICH THE LABOU R ORCE IN SOUTH WESTAFRICA
.- 1s IN FACT MIGRATORY
27. For an appreciation of the extent to which migratory labour is in
fact employed in the economy of South West Africa, it is necessary to
deal with certain calculations madeby Applicants in regard thereto. and
~vithstatements in the Reply which misrepresent the position.
In the Counter-hfemorial Respondent indicated that of the 65,998
adult male natives employed in the Police Zone in 1960, 27,771 came
from Ovamboland and 850 from the Okavango.
Applicants Say that these 28,621 workers represent approximately IO
per cent. of the population of the northern sector, and, calculating on a
life expectancy of 60 years as a base, they compute that "IO per cent. of
the population of the northern sector is the equivalent of approximately
one-half of. the adult male 'Natives' between the ages of eighteen and
forty-ho" 3.Wowever,when this calculstion is applied by them in argu-
ment, Applicants simply aver that there is a "prolonged absence of
approximately one-haljof the aduEtmale jbopz~latio[from the northern
reserves]" '.(Italics added.)
This statement is, of course, false. It departs from Applicants' own
calculation, inwhich the number of workers in question was expressed
not as one-half ofal1the adult maleNatives of the northern sector, but as
one-half of the adult male Natives of a certain ûgegroup only.
28. Alsoin another respect Applicants misrepresent the labour position
in the Territory.They Say that the balance of the Native labour forcein
the Police Zone (i.e., not hailing from the northern sector}, which is
"recruited from among the inhabitants of the 'Native' reserves within
the Police Zone, or is obtained from 'Natives' resident on 'European'
farms orin urban areas", also provides labour which is "temporary in its
essence" This they Say is so because of "the sweeping powers of the
Administration ivith respect to 'Native' rights of residence anywhere in
the Territory", and because "[d]ejure and de facto the entire 'Native'
population of the Territoryis so controlled and powerless with respect to
rights of residence and freedomof movement"
Respondent denies that the measures effected in order to contro! the
residence of Natives in urban areas, or the movement of Natives within
the PoliceZone, which measures have been dealtwith fully in the Counter-
Mernorial 6,have the effect that labour in the Police Zone is "temporary
in its essence". On the contrary, the said measures have a stahilizing
effect in preventing Natives from roaming over the Police Zone without
employment orother means ofliveiihood.
That there is some measure of rnigratory, O; shifting, labour among
International LabouOfficeop. cit. pp.57-58.
3 IV,p.407.piootnot4.
* lbid., 408.
Ibid.pp.407-408.
111Book VI (III ),ssim.200 SOUTH WEST APRICA
Natives who are ordinarily resident within the Police Zone, isnot denied.
Natives do move from the reserves within the Police Zone to take up
employment in the mal and urban areaç. There are, however, no statis-
tics available as to the incidence ofsuch rnovements. In most cases such
movements wouId hardIy be of a migratory naturein the sensein which
that word is generally used relative to labour conditions, inasmuch as the
majority of such Natives have their fainilies with them at thc places
where they are employed, Le., either on farms or in Native townships in
the urban areas.
The followingstaternent relative to migratorylabour iiithe Territory is
contained in the report of the Odendaal Commission:
"The onIy migratory partof the population is th27,77 1orkers
from Ovamboland and 850from the Okavango whowork temporarily
in the Southern Sector for periods ranging from one to two years for
married persons and from one to two and a half years for single
personsl."
The figurc of 28,621 [27,77plus 8501 iven by the Commission for the
year rg60 did not include a furth4,5zBNative workers who entered the
Police Zone from beyond the bordcrs of South West Africa, rnostly from
Angola '. Here too, as in many rapidly developing countries, it is found
that foreign workers are attracted to the Territory for gainful emplop-
meThe number of territorial Native workers in the Police Zone in the
year 1960who can properly be called migratory(28,621),reprcsented
approximately 43 per cent. of the total labour force employed in that
Zoneduring the said year.
V. FUTURE DEVELOPMEK REGSARDIHC THE SYSTEM IN SOUTH \j7~~~
APRICA
29. The present dualistic pattern of the economy of South West
Africa-i.e., an econorny divided into a modern and a traditionalsector-
must in Respondent's view beseen as a transitional phenomenon, bound
to disappear in time as the traditional sector is gradually brought to the
saxnelevel of productivity as that of thc prcsent modern economyçector.
By "cxyorting" itslabour services, the traditional secisensuring the
continued growth ofthe modern economy, a process which, in conjunc-
tion with appropriate measures aimed at the development of the non-
White areas, will gradually but steadily bring about a transformation of
the traditional economy of the Native groups into a modem one.
This irnplies that migrant labour in the Territory iç totbe viewed
as a permanent institution,but rather asa temporary expedient in the
economic development of the Territory-albeit an essentialone. ASthe
traditional economy of the non-White areas is being transformed and
developed, it will offer ever increasing opportunities of employment to
the inhabitants of such areas, and thus the need to leave these areas in
search of griinful empioyrnent elsewhere as migratory workers will
consequentlp diminish, andmay eveiitually disappear altogether.
30.This processof transformation must, however, of necessity be one
that willtake sometime. Economic dualism isinextticably bound up with
R.P. No.121196jp. 39. REJOINDER OF SOUTH AFRICA SOI
traditional and deep-seated socio-cultural attitudes which cannot be
altered by radical steps, but require considerable time and patience to
change. To quote an authoritative United Nations publication in this
respect :
"If it is to be a smooth and not unduly painful process, the
transition from rural peasant to urban industrial worker is not one
that can be greatly accelerated l."
The same publication contains al50 the following:
"The social organization of the subsistence or near-subsistence
sectors of under-developed countries invariably contains elements
which are not conducive to the interna1 growth of new forms of
industrial production and which generally constitute serious
obstacles to the introcluction ofthese new formç from without 2."
In this regard an International Labour Organization Survey of African
Labour states:
"The deep social implications which land-and cattle in areas
where they are raised-liave for Africans mean that resistance to
reforms, which is often stigmatised as conservatism, laziness or
stupidity, in fact springs frorn complex social and cultural factors
linked to existingcustomary systems of agriculture3."
And another authority, N. S. carey Jones, has written :
"One of the bi&est proble& in Africa, and which has hardly been
tackled, is that social institutions and ways of living adapt them-
selves to a changed economic environment slowly 4."
31. Where, for the reasons aforestated, transformation of the economy
of the traditional sector must of necessity be a slow process, while at the
same time economic development in the modern sector may proceed at
a fasterrate, the question mny well arise whether in these circumstaiices
a diminution of migratory labour can ever be expected-at least in the
foreseeable future.
With regard to Africa generally, the International Labour Organisation
has answered this question as follows:
"However, a diminution ofmigrations is not likely to occur inthe
near future; it may be expected, on the contrary, that the slow
progress of social mensures as compared to the rapid industrial
development of the continent will lead to a further increase in
mig-ator~ movements 5."
In South West Africa, Iiowever, future developments may, in view of
the particular circu~nstai~cesof the Territory, be different,and are, indeed,
expected to be. In the first place, it is queçtionable whether, with its
present knoivn resources, rnuch further development can be expected
in the economic potential of the Police Zone. And, secondly, the develop-
ments which, pursua~it to the report of the Odendaal Commission, are
U.N. Doc. E/267o, ST/ECAlz9. Processes and Pvolilems of Industrializaliolr in
Under-developedCounirifis (195p,.2 1.
Jbid., p18.
International LabourOffic e,rican LabourStiniey(1958),p.61.
Carey Jones,N.S.,ThePattern ofa Dtptndent Economy (19531p. IZ1,footnote1.
' "Inter-Territorial Migrations of Africans South of the SaharInternational
Labour Review, Vol. LXXVI, No. 3 (Sep. 19571,p 292-310, at p. jro. SOUTH WEST AFKICA
being initiated or accelerated in the non-White areas ',must create ever-
increasing opportunities and avenues of employment within such areas,
thus tending to diminish the need for migratory labour from such areas
into the PoLice Zone. This would apply particularly to Ovamboland,
whence the bulk of the present migratorylabour forceis drawn, and where
large development projects are being initiated in implementing the
recommendations of the Commission 2.
VI. APPLICASTS ' RITICISM OFS THE AZIGRATOL RAYBOUR SYSTEM
OPERATIX IS THE TERRITORY
32. Applicants contend that, in perrnitting the operation of a system
of migratorylabour in the Temtory, Respondent has violated its obliga-
tions towards the inhabitants, inasmuch as the "consequences of the
poiicy are impossible to recancile with the positive obligations of Article
2of the Mandate" 3.Arguing in support of this contention, they Say:
"A factor contributing to economic stagnation of the northern
reserves is the prolonged absence of approximately one-half of the
adult male -opAlation therefrom '."
Respondent ha5 already indicated that this statemcnt, in so far as it
describes the proportion of the population which is usually absent from
the northern reserves as a migrant labour force, is incorrect Much
less than "one-half of the adult male population" is absent from the
northern reserves at any one time.
33. As proposals for counteracting what they describe as the "econo-
micstagnation" of the said reserves, Applicants put fonvard two sugges-
tions. The first suggestion isthat-
"[hvlere the families of 'Native' labourers permitted to accompany
them to their work, popuIation pressure upon the land inevitably
would decrease with the possibility of a correspondingly more
prosperous agriculture for those remaining; similarly, the land in the
northern reserves would tend to be farmed by persons who would
devote themselves exclusively to farming, rather than on a 'part-
tirne' basis by perçons who migrate to and from the Police Zone at
intervals 4".
The suggestion that the families of migrant workers should accompany
the workers "to their work", is apparent1ÿ put forward on the basis of
a suggested ternporary sojourn in the Police Zone. This is, indeed,
implied in another staternent in the Reply, where Applicants speak of-
. ". . . the widely-criticized policy of preventing the families of
'Natives' from the northern reserves from accompanying them on
their tours of employment ...6".
It is,however, followedby a more far-reaching suggestion in the following
terms, viz.:
"If equality of opportunity were afforded to inhabitants without
' IV,pp. 202-211.
3 Ibid.p.p409.-20).
+ Ibid.p. 408.
Vide para.27,supra.
IV, p.413. REJOINDER OF SOUTH AFRICA z03
restriction based on 'group', tribe or colour, many families would
remove from the reserves to the Police Zone; a surplus of production
would result in the reserves, in place of the subsistence economy
which now fmstrates creation of capital or entrepreneurial skills
from within '."
In making these suggestions,Applicants, in the first place, seem to have
misled themselves asto the whole premise upon which their argument is
based, and, secondly, to have given no thought to the implications
involved.
34. Applicants' argument in respect of both the aforementioned
suggestions is based on an assurned prernise that there is a "population
pressure upon the land" in the northern reserves, and that this situation
compeIs the practice of a mere subsistence economy. or, to put it in their
own words, "the inhabitants cannot generate capital owing to the
subsistence economywhich is fostered ...by the largepopulation" l.
Applicants' basic premise is, of course, false: there is in fact no "popu-
lation pressureupon the land".
As a reason for assurning that there is such a "pressure", Applicants
refer to certain statistics furnished in the Counter-Mernorial relative to
population increases in the northern reserves, including Ovamboland,
in respect of which Respondent commented as follows:
"This rapid increase of population, particularly during the penod
of Respondent's administration of the Territory, points to the
favourable conditions under which the Ovarnbo have been living 2."
It does not, however, follow that, because there has been a rapid increase
in population, there is also a "pressure upon the land". Far from that
being the case, large portions of the northern reserves are not put to
agriculturül use at all. Nor is a form of subsistence economy practised
because of any alleged limitations of land, or because of any increase in
population figures. It is practised by the indigenous people of South
West Africa, Iike the inhabitants of other countries in Africa, as an
age-old tradition 3, which can be altered only by a very slow and gradua1
process of education and the introduction of modern economic methods '.
Subsistence economy in the reserves is as little fostered by the size of the
population today aç it was "fostered" by the very rnuch smaller popu-
lation which existed at the inception of the Mandate 5,when the practice
waseven more tradition-bound than it is at present.
In this regard Applicants, when quoting from the report of the Oden-
daal Commission to the effect that the inhabitants of the northern
sector "consume what they produce and there is consequently little
building up of permanent capital assets", and that "animal husbandry
and crop production are practised mainly for self-maintenance", convc-
niently omit to statethat the Commission did not find this situation to
exist because of a "population pressure upon the land", but because, to
use the words of the Commission, the ",.. economy [of the Natives] is
' IVI p.409.
III,p.8.
Vide Chap. III, para. 5infra.
' Ibid., para. 6, infra.
Vide III,p.8.
IV, pp 408-409. S04 SOUTH WEST AFRlCA
still rooted in the traditional subsisteiice economy, in both the physical
and the psychological sense of the word .. .lu,
Respondent deems it appropriate to draw attention, in so far as the
future is concerned, to its acceptance in principle of the Commission's
recommendations that provision be made for an appreciable extension
of the areas of the existing Native reserves in South West Africa. Save
in the case of the Kaokoveld, lvhich is very sparsely populated, the
recommendations of the Commission involve, intear lin, the addition of
large areas of land to the proposed homelands in the northern sector 2.
35. Applicants' further arguments that a reduction of population in
the ~iorthern reserves will bring about "more prosperous agriculture for
those remaining" 3,that "the land in the northern reserves would tend
to be farmed by perçons who would devote themselves exclusively to
farming" 3;that "a surplus of production would result in the reserves" 4;
and that "[nlot only would productioii be more eficient, but a natural
modernization of agricultural methods would take place" ', not only
founder with the premise upon which these arguments are based, namely
that there is a "population pressure upon the land", but also reflect a
totaiiy unrealistic view of the situation in the iiorthern reserves and the
traditional customs of its peoples.
The fact that the Native inhabitants of the northern temtories gene-
rally practise a form of subsistencc economy and do not yroduce a
surplus over and above their immediate needs, cannot be ascribed to
Iack of opportunity for expansion in their farming activities, nor to a
lack of encouragement to apply modern methods. Itis, as already stated,
due to an ingrown tradition which, as indicated elsewhere in this Rejoin-
. der5, will take a considerable time to change by educating the Natives,
and leading them from a subsistence economy to a modern econorny.
That much lias already been achieved in this regard, is evidenced by
the finding of the Odendaal Commission that-
"[tlo a great extent . . . the modem exchange economy has already
strongly influenced the siibsistence economy of a large part of the
population 'j".
But th& further efforts in educating and encouraging the Natives to
adopt improvcd inethodç, and to look beyond their immediatc needs,
will stillentai1 a lengthy process, isequally clear from other findings of
the Commission, viz., that the Natives in the northern areas-
"[oJn the whole ... have not sufficient ski11and enterprise, either to
triumph over local conditions and the limitations imposed by nature
in their own areas l",
and that-
"these traditional sectors are still a long way from capital formation
hy their own efforts for investment in projects which could promote
their own cconomic developrnent-still fnr from the stage where the
1 R.P. Xo. 1211964 ,.315 (para. 1286).
* Ibid.,pp. 81-89and Chap. III, paras. 27-28infra.
IV,p. 408.
' Ibgd., p409.
"Vide Chap. III, paras. 5-8.
R.P. Xo. 1211964p ,. 315(para. 1284). REJOINDER OF SOUTH AFRICA 205
indigenous popuIation could advance themselves by their own drive
and volition from a stationary economy to self-sustaining growth.
They will still have to be given much aid and advice to encourage
them on their way ... l"
The aforementioned considerations apply equallp to Applicants'
further criticisms that the migratory labour system deprives the northern
reserves "of the presence of a large percentage of the able-bodied men"
and "[alt the same time, the initiative for effecting changes devolves
upon the women inhabitants in addition to their accustomed Iabour
on the land" 2. In this regard, too, custom and tradition play their part,
inasmuch as the bulk of the work as far as agicultural activities are
concemed was traditionally performed by the womenfolk 3.And this is
still the position today, even when the menfolk are not absent in the per-
formance of migratory labour but are resident with their families in the
reserves.
36. Not only would implementation of Applicants' suggestions fail
to bring about the progress and prosperity which they predict for the
northern areas if there were to be a mass exodus of workmen and their
families to the Police Zone, whether on a temporaryor apermanent basis,
but their suggestions reflect a total lack of insight into, and appreciation
of, the economic conditions of the Territory and the customs and tradi-
tions of the indigenouspeople.
In suggesting that the families of Native migrant workers should be
permitted to accompany them "on their tours of employment" 4,Appli-
cants seem to have given no consideration to the implications of such a
policy, either in so far as the workmen themselves are concerned or as to
the effect which it would have on the economy of the Territory.
Irrespective of the light inwhich the tribal authonties would view this
proposal 5,it is doubted, for the reasons already stated 6,whether, if such
permission were to be granted, and if the workmen were to appreciate the
necessary consequences of taking their families with them, any apprecia-
ble number wouId in the long run avail themselves of the right. Those
that would venturethe step, would upon their retum to their rural homes
after expiration of their contracts of service, be sadly disillusioned, for
not only would theirfarmingactivities have corne to an end during their
absence, but they would also, in the words of the authorities to which
reference has been made 6, have lost the "only security" which they
understand, viz., the "rights to the use of tribal land"6.And the question
would then immediately arise as to their sustenance in the reserves while
waiting for the next period of empIoyment to commence. Applicants do
not venture an answer to this problem. Nor, it would seem, have Appli-
cants given thought to the other implications which would arise in the
modem economy sector if their suggestion were to be implemented. There
wouId be the cost of transport of the workmen and their families over
many miles in a land in which transport iç at al1times a vexed problem;
l R.P. No.1211964, p. 513(para. 1551).
IV, p.409.
11,p. 324 (para. 47).
Vide para. 33, supra.
VideII, p.325 and III, p. 73, regarding the opposition of the tribal authorities
to such a step.
Vid8 para. 18,supra.206 SOUTHWEST AFRICA
the cost of accommodation of the workmen and their families and the
provision of other facilities and conveniences at their places of employ-
ment, albeit only for the duration of their contract periods. These costs
wouid have to be borne by the economicresources within the Police Zone,
either by way of a very much increased wage to the workmen or by pro-
viding accommodation, conveniences and other facilities in kind, neither
of which can, as will be shown hereinafter, be afforded by the economy
of the Territory l.
37, Sirnilar, and even more serious, implications would be involved in
the implementation of Applicants' other suggestion, viz., that-
"[ilfequalit y of opportunit y were afforded to inhabitants without
restriction based on 'group', tribe or colour, many families would
remove from thereserves to the Police Zone. ..2".
For the sarne reasons as have been mentioned relative to Applicants'
suggestion that families should be allowed to accompany the workmen on
their migratory visits 3,Respondent expresses grave doubt whether, ifthe
consequences were realized, any appreciable number of Natives would
choose to sever their tieswith the traditional sector andsettle permanent-
ly with their families in the strange surroundings ofthe modem econorny
sector, away from their traditional cultures and customs, and without re-
taining riglits to the use of tribal land. That many Natives would be at-
tracted by the novelty of living in urban areas, and would, if permitted,
embark upon such a venture, can be foreseen. But it can equally be fore-
seen that the rigours of city life, and conditions in times of unemploy-
ment, sickness and old age, might well, after the experiment had been
tried, cause many such settlers to return to the reserves.
In any event, implementation of Applicants' proposa1is not economi-
caUy feasible. Under present circumstances, implementation of their
suggestion would require that the large number of people envisaged would
have to be provided with employment, with housing and with other social
amenities by the enterprises which at present attract the buik of the
labour force: the mining industry, the fishing industry and agriculture.
The suggestion implied in Applicants' proposai, viz., that these three
sources of employment can create employment opportunities at will,
rather than in accordance with market conditions, is so naive that it
merits no further consideration.
38. Witli regard to the suggested permanent accommodation of a
large number of workmen and their families in mining, industry and
agriculture in the Police Zone, Respondent states as follows:
(a) Th iMining Industvy
hIining areas in the Territory are situated in parts which have no
other economic actiïities on any scale, so that the mining companies
concerned are compelied to accommodate all their employees themselves.
Apart from accommodation, recreation and other social amenities must,
of course, be provided. This means a heavy capital outlay for industries
already affected by very long distances separating them from both
sources of supply and from markets, and by the considerable extra
l Vide para. 38, infra.
2IV, p.409.
Videpara. 36. supra. REJOINDER OF SOUTH AFRICA 207
awards they have to pay in order to attract both capital and skilled
personnel.
It goes without saying, that this outlay would have to be very much
greater if whole families were to be housed in individual dwellings and
provided with schools, hospitals, and other necessary facilities, than
when single workers are accommodated. Mining is based on the exploi-
tation of a wasting asset, the exhaustion of which automaticallyrenders
obsolete not only the productive apparatus, but aIso the homes and
other facilities which cannot be transferred to other occupants in an
otherwise uninhabited area. In this regard mention may be made of
the view expressed by the Odendaal Commission that the diamond fields
and base metal mines in the Police Zone, which at present produce more
than go per cent. of the mining output in the Territory, "will inall prob-
ability be largely worked out in 25 years' tirne" l.
These are important considerations when thought is given to pro-
posals to stabilize a labour force dependent on the mining industry. Thus,
with regard to migrancy and urbanization of Native workmen in the
Republic of South Africa, G. E. Stenthas stated:
"Were the anticipated life of the mines long, or were it a question
of beginning new operations with n'ew methods, it might be an
economical proposition [Le.,toencourage a stabilized labour force].
As it is,however, the outlay would be spread overonly a lirnited pe-
riod of working, and as such its cost would prove prohibitive 2."
In the circurnstances it must be obvious that the mines would suffer
heavily and could be forced to close down, if they were compelled to
provide not only for the workers but also for their families-whether
provision were to be made in cash, by way of increased wages, or in kind.
(b) The FishifigIadustry
The fishing industry differs from the mining industry in that it operates
on a more permanent basis or is, at least, expected to do so. The industry
is, however, subject to significant seasonal fluctuations, with the result
th'at it is active for only part of every year, and cannot afford to employ
a permanent labour force. It would a jortioribe unable to provide
permanent accommodation for workrnen and their families. The migra-
tory labour system is therefore the only practical modusoperandi in this
industry. The average number of extra-territorialand northern Natives
employed in factories in the Police Zone every year is 2,588, their con-
tracts generally being for eight months of the year 3. A very large
proportion of the said number are ernployed in the fishingindustry.
(c) Agriculture
Although stock farming in the Police Zone is also a permanent activity,
and is not marked by seasonal fluctuations, it offers very little scope for
Iarge-scale permanent settlement by non-White workers. Inasmuch as
the Police Zone often suffers protracted droughts, stock diseases and
epidemics, resulting in a substantial curtailment, albeit ternporarily, of
the agricultural labour force, settlement of a large number of.workmen
and their families on farrns wodd be at best a precanous venture.
R.P. No. 12j1964, p. 333 (para1312(v) b).
Stent, G. E., "Nigrancy and Urbanization inthe Union of South Africa",
Africa,Vol. XVIII, No. 3 (July1948),pp. 161-183. atp.183.
3 Departmental information.208 SOUTH WEST AFRICA
With regard to non-White persons employed in other branches of
activity in the modern economy sector, it is true that many of them are
in fact housed in urban townships togethcr with their families. It may
be expected that as employment opportunities in coinmerce, brulding and
construction, administration and the services increase, their number wjll,
for some time at least, also rise. The scope for such an increaseis, however,
limited, and will largely depend on the extent to which primary economic
production-mining, fishing and agriculti~re-stimuIates secoridary and
tertiary activities. And, as has already been stated l,it is questionable
whether any considerable furtlier development can be expectcd in the
economic potential of the Police Zone.
39. From the aforegoing it is clear that fundamental economic factors
strictly limit the modern sector'scapacity for absorbing, on a permanent
basis, a largenumber of the population of the northern territories.
There are, however, additional and equaliy fundamental considera-
tions bearing oii the absorptive capacity of the said sector. A policy of
encouraging stabilization of Iabour by way of settlemeiit of a larger
permanent labour force in the Police Zone, must tend to reduce sub-
stantially employment opportunities for those normally resident in the
traditional sector. Implementation of Applicants' suggestion could,
therefore, in this respect result in hardship for the majority of the Natives
in the Territory.
40. Another fundamental consideration bears on the number of people
involved. It isof course impossible to estimate the number of Natives
who would, if permitted, remove with their famiiies from the northern
sector and settle inthe Police Zone. Applicants' whole thesis, however,
is based on a presumption that there will be a large exodus of the popula-
tion from the northern territories-othenvise the whole point in Appli-
cants' suggestion is lost. An absorption of such a large community into
the Police Zone must surely, in addition to the economic problems
attendant thereupon, bring about more and even greater social evils than
the adverse effects of the present system of migratory labour. Thus,in
the words of a United Nations publication already referred to,
"[tlhe multitudes that congregate in and around the cities olmany
of the under-developed countries today, technically living in an
urban environment bilt socially and ciiIturally still to a large cxtent
peasants, by the sheer magnitude of their numbers pose social
problems that the industrializing countries of Europe did not have
to face 2".
There are signs that, failing appropnate counter-measures, a sirnilar
condition could very easily develop in the Territory, for in the words of
the Odendaal Commission :
"From evidencc submitted to the Commissioii itwould appear
that there is at present a considerable influx of non-iV11itewith their
families from the rural areas [within the Police Zone] into the larger
towns despite the fact that there are insufficient avenues of employ-
ment for them in the urban areas 3."
Vadepara. 31, supra.
2 U.N. Doc. E(2670, ST/ECA/z9, Processes awd Problcrns of Induslriali~ation in
Under-developedCouniries (1955)p~.1'9.
3 R.P. No. 1211964,p.117. REJOINDER OF SOUTH AFRICA 209
In the circumstances Respondent would indeed be failing in its duty
if it were to adopt a policy as suggested by Applicants, instead of taking
steps to prevent the position from deteriorating intothe chaos and snisery
which beset the urban areas ofso many other under-developed countries.
Applicants' suggested solution of the problcms of migratory labour,
i.e., by permitting an uncontrolled influx of Native families from the
northern sector into the Police Zone, can, to Say the least, only result in
econornicregression and an aggravation of existing social problems.
The position which would be created by an implcmentation of Appli-
cants' suggestion would be bad enough in times of relative prosperity, as
is now being experienced in the Temtory, but, inasmuch as the economy
of the Territory is geared to exports of prirnary products and is therefore
dependent on world market prices, the position must surely and in-
evitablÿ lead to disaster in the event of industrial setbacks or economic
depressions.
41. For the reasons aforestated, implementation of Applicants' sug-
gestions would not foster progress in the reservcs, nor would it be feasible
from thc general economic point of view. On the contrary it could only
lead to economic disruption of the enterprises which have been biult up
in the Police Zone alid which serve as the foundation of the economy of
theTemtory.
42. In the premises Respondent submits that, upon analysis, tl~eereis
no substance in Applicants' charges that "[tlhe . ..consequences of the
poiicy [of migratory labour] are impossible to reconcile with the positive
obligations, of Article 2 of the Mandate" l,and that, in permitting a
system of migratory labour to operate in the Territory, Respondent has
violated its obligations towards the inhabitants of the Territory I.
D. Applicants' Allegations regarding Low Wages
in the Territory
43. Whereas in the BIemorialsApplicants made no complaint regarding
wages paid in South West Africa 2,a complaint is now introduced in the
Rcply that Native laboiir is cheap, and that the wages paid to Native
labourers are low. Thus, in support of an argument that the Native child
iç educated for a "distinctive sole in the economic Iife of the Tenitory,
that of agricultural and industrial labourer", Applicants rely, interalza,
on a statement by the Cornmittee on South West Africa to the effect
that-
". ..their training and education seemsdirected merely to preparing
the 'Katives' as a source of cheap Eaboi4rfor the benefit of the
'Europeans' (Italics added.)
In deaIing later with the opportunities offcred to the Natives in the
IV, p.409.
The only rcference in the Mcmorials to allcged "wages" was contained in an
extract frorna petition by Hosea Kutakoand others to the United Nations, quoted
by Applicants at r,p.171. assupplemental rnaterial in support of their atlegations
regarding "Government and Citizenship".dpplicants themselves did not make such
a cornplaint. VideIV,p. I8 (para. 47).
IV, p. 406.2IO SOUTH WEST AFRICA
economy of the Territory, Applicants refer to "[tJhe predilection of
employers for low-cod labour. .." l (italics added), and, still later, there
follows the categorical statement by Applicants that "[tlhe wages paid
to 'Native' labourers are extraordinarilylow" (italics added).
Respondent has some difficulty in dealing with Applicants' bald allega-
tions that the cost of labour in the Territory is "low" and that the wages
paid to Native labourers are "extraordinarily low" in that-
(a) Applicants themselves furnish very limited and, in fact, incorrect
information regarding the wages paid to Native workers in the
Territory 3, and may therefore, in drawing their conclusions, have
been misled by their incorrect factual information; and
(b) they do not state by what criterion they have measured wages when
drawing the conclusion that such wages are "extraordinarily low".
Respondent willhereinafter give consideration to both these aspects.
W. With regard to wages paid to Native workers in the Temtor).,
Applicants Say:
"The average cash earnings per month of 'Native' workers in the
Administration, the railways, the mines, on roads, inrnunicipalities,
in industries and in domestic service was reported by the Committee
on South West Africa as estimated at L510s. ad. [i.e., Rrr.061, for
1956 2."
That Applicants have in the above statement misrepresented the fig-
ures given in the Committee's report is clear when regard ishad to the
relevant part thereof, which reads as follows:
"Average wage rates for recruited or local 'Natives' during 1956
were reported to be L5 8s. gd. RIO.^^]for farm labourers and in
urban areas£86s. oad. [Rr6.60].These calculations were based on
wages earned by workers in the Administration, the railways, the
mines, on roads, in municipalities, in industries and in domestic
service. The averagecash earnings$er month of the last menlàoned
grou+ were sfcltedto6e L5 10s. 8d. [Rrr.oq '." (Itaiics added.)
The figuregiven by the Committee was obtained by it from the report
of the Commission of Inquiry into Non-European Education in South
West Africa. The figure of £510s.8d. (R1r.06) quoted by Applicantswas
the average monthly wage of domastic smants and not the average month-
ly wage of the other classes of workers mentioned by Applicants, which
was L86s. oid. (Rr6.60).
45. The only other particulars furnished by Applicants with regard to
Native wages are contained in the following extract from a report of the
Special Committee for South \Test Africa, viz., "[tlhe basic wage under
[the contracts for Northern labour] . .. is 18 cents a day, increasing
lTV, p.408. riB
Ibid..p. 417,footnote3.
RePwtn ofcthe I.L.OAdAnhocCommitteeeonepFwced Labour to allegations in petitions
received by it frorn Native persons and organizations inSouth West Africa to the
effect that the wages paid to Native workers in the Territory are Iow. No information
is, however, given in the Committee's report regarding wages in the Territory, and
the Committee did nat deal with the cornplaint, inasmuch as it considered that
"investigation of [the] question wouldoutside its terrns of referen(para. 382).
AC.A., O.R., 15th Scss., Suppl. No. (A/4464), p. 41(para. 321)- REJOIXDER OF SOUTH AFRICA 211
slightly with length ofservice"l.The true position isthat aminimumcash
wage is fixed for al1northern and extra-territorial Natives who enter the
Police Zone in order totake up employment therein. The minimum wage
differs as between the various occupations in which the said Natives
are ernployed. The minimum wage rates which apply at present are the ,
followjng 2:
(a) For Natives employed on mines and in industry
17+cents per shift for the first 155shifts;
20 cents per shift for the next 77 shifts;
22* cents per shift for the remaining 77 shifts.
This works out at an average of 19.3 cents per shift for 309 shifts
in the contract period of a year. As Native industrial workers and
mine employees work one shift per day, their minimum cash wage
on an average is 19.3 cents per day, excluding additional remune-
ration for overtime.
(6) Domestic servants
The minimum cash rate rises from Rq per month for workers who
are inexperienced, or have physical disabilities, to R5.50 per month
for those who are experienced and have no physical disabilities.
(c) Farm workers
For farrn workers, who are not employed as shepherds, the mini-
mum cash rate rises, on the same basis as stated in (b) above, from
R4.30 per month to R6.30 per month. In the case of shepherds,
corresponding figures are R5.30 and R7.30 per month.
The minimum wages apply only to northern and extra-territorial
Natives, and are administratively fixed by the Minister of Bantu Ad-
ministration and Development in collaboration with the South West
African Executive Cornmittee, after consultation with the various groups
of employers. Iirom time to tirne the minimum wage rates are raised in
accordance with the rise in the cost-of-living, or as a result of other
changing conditions which bear upon the determination of a reasonable
wage. The minimum rates at present applicable have been in effect since
July 1961T .tmay be stated in this regard that the folloxvingminimum
rates were fixed on 16November 1964,to come into operation on a date
to be determined by the Minister of Bantu Administration and Develop-
ment 2.
(i) In al1 occupations, excluding work on mines, an increase of 50 per
cent. over present rates;
(ii) In respect of mine workers, the rates are to be as follows:
30 cents per shift for the first 155shifts;
35 cents per shift for the next 77 shifts;
40 cents per shift for the remaining 77 shifts.
46. While the aforementioned rates are minimum.rates, the vast ma-
jority of Nativesare paid well above the stipdated minimum. In addition,
many receive annual or seasonal bonuses over and above their wages.
Moreover,al1the Native ernployees who are recruited from the northern
areas are supplied with free accommodation and food, or rations, free
l IV,p. 417,footnote 3.
shillings.mental informationThe figures are given in Rand and censRI = IO212 SOUTH WEST AFRlCA
medical attention and also with some articles of dothing, as weI1 as
blankets.
The following tables furnish illustrative examples of the value of
remuneration in cash and kind received by Natives who contract for
employment in the diamond mining industry and in the fishing industry:
TABLE l
Average rnonfhly wages
of Natives ernployed by Average mo?ithly wages
Cmsolidafed Diamond of Natives emplcyedby
Mines ofS.W.A. Ltd. fishing enterprises in
dtrring 1963 Walvis Bay during 1964
Basic wage .....
Proficiency and compai
allowance. ....
Overtime. .....
Bonus .......
Expenses on Food. .
Clothing expenses . .
Hostel expenses. ..
Recreation expenses .
hledical sen xes. ..
Total per month
It will be noted from the above tables that in both cases the cash
wages and allowances paid far exceed the stipulated minimum wage, and
that payrnents in kind fom a substantial part of the total remuneration.
47. Respondent has already stated that the aforemcntioned minimum
wage rates are applicable onIy to northern and extra-territorial Natives
who are employed in the Police Zone. Aithough there is no minimum
wage rate applicable to other Natives employed tvithinthe said Zone,
i.e., Natives who are ordinarily resident therein, they generally receive
wages which are well in excess of the aforestatcd minimum rates.
This is illustrated by the following table, which reflects the average
monthly income of Natives employed in certain stated occupations in
the rural and urban areas of the Police Zone during 1962 :
TABLE l
Average income pev mo~tth
Ruvu1Areas Urban Aveas
Teachers, policemen, clerks ........
Labourers in govemment service ..... R20.64 RRzz.11
Labourers in service of the railways and
harbours administration ........
Labourers in industrial enterprises. ....
Labourers in mines ...........
hiunicipal employees ...........
Labourers on farms ...........
Domestic servants (male). ........
Domestic servants (fernale) ........
1 Departmental information. KEJOINDER OF SOUTH AFRICA 213
The above figures stand in shatp contradiction to the average figure of
--1.06 per month mentioned by Applicants in the Reply l.
48. The second feature of Applicants' compIaint to which Respondent
drew attention above, iç that Applicants nowhere indicate what com-
pansons they have made in ordcr to conclude that the wages paid to
Native labourers in South Wcst Africa are "extraordinarily low" 2.
It is therefore impossible to deal with the cornplaint in this respect
without speculating as to what comparisons Appiicants could have had
in mind. In so speculating, Respondent can conceive of only two bases
upon which Applicants coiild possibly have made a comparison, namely
a cornparison of the wage level of the Xative labourers of South West
Africa with the ivagc level of Native employees in other countries, or a
comparison thereof with thc general wage level of the European employ-
ees of the Territory. liespondent will therefore deal with these in turn.
49. International comparisons of wagc 1eveIsoften create misleading
impressions inasmuch as, for obvious reasons, it is almost impossible to
present a complete, accurate and objective picture, mainly for the foilow-
ing reasons :
Firstly, the purchasing poiver of a given surn of money can, and very
ofteii does, differ considerably fram one country to another.
Secondly, cash wages are often only a part of total wages,especially
in Africa. Apart from free food and housing, which can be interpreted as
wages paid in kind, the cash equivalents of medical care, educational and
recreational faciiities, free transport to and from work, free grazing of
employees' stock, etc., are difficulttodetermine. Yet these benefitsoften
represent significant contributions to the workers' welfare.
jo. Ifiile conceding that, for the reasons aforestated, as well as for
other lesser reasons, cornparisons cannot be taken to be accurate in al1
respects, Respondent has endeavoured to meet Applicants' bald accusa-
tions with regard to low wages by prepanng as accurately as it can a
comparative table of the wage level of Native empIoyees in South West
Africa and in other comparable territories.
The table on the following page compiled from the most recent informa-
tion available to Respondent, reflectç the average monthly wages of
African employecs in the major divisions of economic activity in the
territories mentioned therein.
51. While repeating thnt the said table cannotbe regarded as an
accurate comparison of wage-Icvels, Respondent submits that it givesa
broad picture of the true position and, in that sense, indicates that the
wages paid to Native employeesin South West Africacompare favourably
with the wages of Afncan employees in the countries mentioned in the
table, and particularly with wages paid in the two Applicant States,
which appear to be very low when compared with those inother African
territories.
l Vide para. 44supra.
Vide para. 43, supra, TABLE l
AVERAGE MONTHLY EARNINCS OF AFRICAN WORKERS
Monthly eamingsin Rand
General Major divisions of economic activity
level
Country 2 1 Dale of Rlanufac- Agri-
wages turing Mining ) strYgin Transport culture
(a) Total remunerafion: parlly i?tcash
and Parlly in hind
South Wcst Africa4 ......... 1964 26.8 27.6 25.9 27.6 26.8 13.8
Kcnya .............. 1959 12.8 5 14.1 ' 13.67, l3 14.3~. l3 20.5'. l3 6.96
hlalawi (formerly Nyasaland) .... 1g6z '3.4 11.4 8.2 r1.4 19.0 6.4
Southern Rhodesia ......... 1962 21.2 23.4 18.2 20.4 32.6 10.0
Zambia (formerly Northern Khodesia) 7 1962 27.4 23.6 48.2 21.2 30.4 9.0
Nigeria9 .............. 1960 14.8 14.8 14.4 'O 12.8 24.7 15.0 "
Tanganyika ............ - - - - -
1962 - - - - -.7
Ethiopia. ............. 1958 7.4-1 2.1
(b) Cash remuneration only
Hepublic of South Africa. ...... 1963 23.1 35.2 12.0 31.7 33.0
Ethiopise ............. 1958 & 10.0 - - - 10.7-52.1 7.5
Liberia .............. 1957 f 11.0 - 5.9-10.4 - - 1.4-7.4
Tanganyika ............ I962 13.6 14.1 12.7 21.0 i2 4.6-6.5
15.4 -
Iri tliis taivnpespnid in othar curroiicica Iiavc ben convcrted to Rand. South Africa:dfwrirhl~ilar~llrfSt<llie/ira,Vol. SLIII, N5.(May 1904).
IL1= £0.5= 10 shillings. tables153,#, iantl 13, pp. IR20 nntl20.
Infonnalwn obînintd {rom the Idloiring sorimer: SoiithWmt Afi-icn:I)eparttnentnl inforinatiun.
Al1 countrle*, exccpt Elhloliin, Libcria. Soiith Africa niid SouWest Footnatm nlipowing imiiiediztely liehind nnmc of coririlrlm.i,zelu&rcference
Afriw : toagriculture.
1363,tables15. IBandl18,pp.300-361knnd 414-429.Ld&ics lncliidlng nll divisions of activity nppenrlng in ndjolriinp colunina. cxcept
Ethioyia: Btnte Hnnk of lithloplii SlntistlcOIRce, Jio~y Supplu, Mnlcaonly.
Cost of Lirinu andRelald .\l&rb (Sep.1953), pp. 8-7. Snlrohi. Ailult males; including saluried etnploj~ccs.
Luther,E. W., EthiopfaToday (1958), pIlS. Ilegulnr ntliilt niale laboureru.
Lipsky, G. A., EthiopiIut:s Pcoplc, Its Ciiltu(19621,pp. Incluiliiig suInriet1employeos.
.......4 No flgurcs on astriclly comparnbIe bmisnrc nvnilnhlc for lhescouutries;
I,ibciia: 11-16.pnrtmcnt of 1,nbor. Luborifl Liharéa(May IOOO)p,li iiidicntlofdprcrnilinp earnings.It is possililc suitiof tbc quotcd buresr
iiiclitpnymnt In kind without cxplirilly snyiBO.
p.6s. Al1iinsklllcd cmployew.
Hcnipatone, S., ThI%'~UAfrica(19Fl),p. 457. LqIt~f~~to 105D
Iïasce,W. A., Ai&fl RconornioUerelopment (1058), p238. Unakillcil tritalmonly. Bemitncrstion u*hollyin cmh.
Carter,O.M., Alriuin One I'arlvStatee(1062)p.. 378. r;xslirding Tnngnnyikn Ileilways.
isAdulta o~iiy. REJOINDER OF SOUTH AFRICA 215
III.COMPARIS OF NHE WAGE LEVEL OF THE NATIVE LABOURER W ITH
THAT OF THE EUROPEA ENMPLOYE ENSTHE TERRITORY
52, If a cornparison between the wages paid to Native and European
workers, respectively, is the cnterion upon which Applicants' charge of
"extraordinarily low" is made, then Respondent says that the charge is
wholly unfounded. Al1over Afnca alarge and inevitable gap exists in this
regard, for reasons which will be dealt with hereinafter. The only useful
guide to be afforded by this criterion would therefore beta seewhether the
gap in South West Afnca is wider or narrower than in other partsof
Afnca.
53. In the Territory, as in allother countries characterized by the
juxtapoçition ofa small but economical1yhighly productive goup and a
large but economically backward group, two distinct wage structures are
inevitable, and the reason therefoiçtwofold. In the first place, in a free
market economy, such as obtains in South West Africa, wages reflect the
productivity or the value of the services of the worker. With the exception
of the physicaily or otherwise handicapped, where other considerations
prevail, no one içpaid more than he deserves on the ground ofhis produc-
tivity or the marketvalue ofhis services. Secondly,wagesin the Territory
must, in order to attract and retaanhighIy productive and skilled Euro-
pean man-powsr, at least keep Pace with the rate of earnings in neigh-
bouring South Afnca and elsewhere. In the succeeding paragraphs
consideration wilIbe givento each of these reasons.
54. With regard to productivity and value ofservices, it isonly natural
that, since the European employees are on the whole better educated,
more experienced, and accustomed to çkilled work, they generallfilthe
more highly remunerated posts, as compared with the Native employees,
the majority of whom, by reason of lack of education, knowledge and
experience, can only be employed aç semi-skilled or unskilIed workers.
And it followsas a matterofsimple economicsthat the general wage-level
of the European employees would be higher than that of the Native
employees.
Thisis generally recognized as the basic reason for a differential wage
level between Europeans and Natives, in Africa. The point is made as
follows inan article in an International Labour Office publication, the
IfiternationaLabour Rewiew :
"To a large extent, racial wage differentials in Afnca are ski11
differentials. Europeansand Africans have been, and to a considera-
bie extent stiiarenon-competing groups l."
In the same article the followingis çtated with particular reference to the
copper rnining industry in Northern Rhodesia:
".. .the 'skilledfrica a ns not have the sarne degree ofskillas the
Europeans and are not given, nor are they at present capable of
accepting, the same amount of responsibility =".
Another authonty, Professor Stephen Enke, has given the folIowing
general explanation for this situation:
"The wages of natives in the coIonies, as in other backward but
"InterraciWage Structurin CertaiParts of AfricaInt8rfiatioLabour
Reuiew, Vol. LXXVIII,No.I (July 1958.p.20-55,5tp. 21.
Ibid., 23. REJOINDER OF SOUTH AFKICA 2f7
(b) SouthernRhodesia
AVERAGE ANEUAL EARNINGS PER HEAD OF EUROPEAN AND AFRICAN EMPLOYEES,
IN MANUFACTURING, CONSTRUCTiON, AND WATER AND ELECTRICITY INDUS-
TRIES, 1938-1952=
Ajvican earnings as per-
centageO/European earn-
Year ings
(c) Zambia (formerlyNorthern Rhodesia)
EARNINGS IXCASH AND KIND OF AFRICANS AND EUROPBAh'S EMPLOYED BY THE
COPPER MININC COMPANIES
Average African eamings as
percentage ofminimum
Year
Euvopean eavnings
Cornrnenting, inter dia,on the aforernentioned statistics the article
states:
"Examination of available statistics indicates that the range
between low and high wagesis much greater in Africathan in most
other parts of the world. This is a ski11differential and at the same
time a racial differential, since Africans are heavily bunched in the
lowest-paid unskilled occupations and the highest-paid skilled jobs
are occupied almost exclusively by Europeans 3."
56. In regard to another African territory, Uganda,it Ras observed in
1962that "[tlhe average monthly cash wage in Kampala is for an Afncan
employee 107 shillings, fora European ~CIOf or, an Asian, a little below
v.m" 4.
And a publication of the Department of Labor of the United States of
America gives the foiiowing description regarding wage differentials in
Liberia :
"Of the 74,000 perçons employed in the money economy in mid-
1 "Interracial Wage Structure in Cedain Parts ofAfrica", op.cil.p. 33.
Ibid., p.24.Af~ican avevageeavnings include "cash (basic wages, cost-of-living
aIlowance, copper bonus) and cost offood, housing, ligand water supplied ftee".
Euvopean minimum earnings include "lowest basicwage, plus cost-of-living al-
lowance, copper bonus and housing subsidy".
Ibid..p.54.
* "hlig~ant Labour in Africa South of the Sahara-XII1 Migrants and Proleta-
rians". Inter-A frican Labour Inditute Bullelin, Vol. IX, Io(Feb. 1962).p. 60.218 SOUTH WEST AFRICA
1958, approximately 2,700 were Europeans, Americans, Lebanese,
and other non-Afncans. Almost without exception, these perçons
were comparatively high salaried personnel, self-empioyed buiness-
men, or members of foreign diplomatic, economic, or religious
missions l"
The position is very much the same in Ethiopia, in respect of which
G. A, Lipsky wrote as follou~s :
"The difference in pay between skilled and unskilled Iabor is
considerable, even though the particular skills involved may be
very basic. The very highest rates for skilled work are paid to non-
Ethiopians, a fact whichgreatly increases wagedifferentiak between
unskilled and skilledlabor =."
Another authority, E. UT.Luther, who made a study of conditions in
Ethiopia, stated:
"Administrative and technical staff, mostIy non-Ethiopian,
receive salaries ten and fifteen times as high as ordinary workers,
with a fewtop officialsearning much more 3."
And G. H. T. Kimble, in dealing with wage differentials, stated:
"Comparable disparities could be cited from most of the multi-
racial territories. At Dakar (Senegal), for instance, the basic salary
in the mid-rgjos of a European clerk employed in a commercial
house ranged from the equivalent of $170a month to $300a month,
depending on his length of service in the country. The basic salary
of an African clerk employed in the same kind of work ranged from
the equivalent of S3ja month to 3150 4."
57. No comparable figuresof wagedifferentials are available for South
West Africa, but the differential there cannot Varymuch from the differ-
ential in the Republic of South Africa,in respect of which the position is
illustratedby the folIowingtable:
SOUTH AFRICA
AVERAGE ANNUAL EARNINGS AT CURRENT PRICES OB WKITBS AND
BANTU EMPLOYED IN PRIVATE MANUFACTURING AND
CONSTRUCTION INDUSTRIES (IN RAND)
Bantu cnrnings as
perccn6a g8White
Yeu* Whites Bantu earnings
1955-1956 . . . , . 1,621 300 18.5
rg56-1gj7 . . . . . 1,692 308 18.2
1957-1958 . . . . . 1,761 316 17.9
1958-1959 . . . . . 1,819 330 18.1
1959-1960 . . . . . 1,872 348 18.5
1960-1961 . . . . . 1,938 371 ' 19.1
U.S. Department of Labor, LuboritzLiberia (May 1g60),p.6.
Lipsky ,. A..Ethiopia: Its People, Its Society, ItsCult(1962).p.274+
Luther, E. W.,Elhiopia Today(1958)p, .118.
' Kimble. G. H. T., Tropical Africo. Vol.I (rgbp. 600.
na1 O/Economics, Vol.30. No.n2u(June 1962),pp. 93-118. at p96.uth Africanjout- REJOINDER OF SOUTH AFRICA 219
Commenting on the above statistics, Professor W. F. J. Steenkamp,
from whose work the said tablehas been extracted, states as follows:
"A cornparison of the South African and European wage diffz-
tial does not, in itself, show that local unskilled labour is, economi-
callyspeaking, being grossly underpaid.If that wereso,one wouldbe
justified in concluding that unskilled labour wns being exploited in
most dual economies,for largeskill diferentials are afeature of thesc
societies. Demandand su+$ly conditionsin lhelabourmarkets of the
developedandundardevelofied economiesdi#er sogreatlyas to invalidate
com$arisonsofthisnatztre l."(Italics added.)
Although the diflerential figuresinthe above table on the wholecover a
later period than those dealt with in the tables cited in the aforegoing
paragraphs relative to other African territories, they do, in Respondent's
submission, show that the position in South Airica compares favourably
with that prevailing in the said territories and, inasmuch as the differen-
tialpattern in South West Africa cannot Vary much from that of South
Africa, the conclusion also applies for South West Africa.
58. A factor having an important bearing on the wage structure in
South West Africa, is that alternative opportunities are open to European
employees in the Republic of South Africa and elsewhere. This means
that the Territory can only attract and retain a skilled and experienced
European manpower by offering it a rate of earnings at least equal to, or
greater than, that obtainable outside the Territory. On the other hand,
this factor does not influence the generai wagelevel of the Native n~orkers,
the large majority of whom are unskilled. This phenomenon is encoun-
tered in practicaily al1 the countnes on the African Continent where
European employees fil1the higher and more skilled posts, nhile the
indigenouspeople are largely unskilledworkers.
59. The importance of offering a cornpetitive remuneration in o@er
to attract and retain skilled and experienced personnel, is emphasized
in the following statement ina report of an Economic Survey Mission of
the International Bank for Reconstruction and Development of Tangan-
yika, with regard to expatriate oficials:
"While expatriate officiaisare currently wellpaid bylocalAfrican
standards, their remuneration does not compare favorably with
their market value in their oln and many other countries. The
Mission encountered various cases where the present salary scale
in the tenitory appeared inçufficient to attract qualified people and
where, in other words, a greater salary differential is perhaps called
for2." (Italics added.)
This phenomenon of payiiig relatively much higher wages to skilled and
experienced expatnateç than the wages paid to the indigenous people,
has been noticed al50 in the other African temtories to which reference
has been made above 3.
60. In the premises aforestated, Respondent submits that, if Appli-
l Steenkamp. op. cil.p. IOO.
a The Economic Dcuelopment of Tanganyika (ig61), p. 347-Similarstaternents
are made in reports of the International Bank for Reconstructnd Development
illissions to Kenya (The Economic Devel@menl of Kenya, 1963, pp. 37 a47) and
to Uganda(The Economic Development a/Ugcnda, 1962,pp. 23-24and 38).
' Vide paras.54 and 55,supra.220 SOUTH WEST AFRICA
cants' complaint regarding alleged low wages of the Xative labourers of
South West Africa is based upon a cornpanson between the general wage
level of European employees of the Territory and that of the Native
employees, then the cornparison is meaningless, and the complaint
unfounded. Not only is the differential wagc structure that does exist
inevitable in the economic circumstances of theTemtory, as it also is in
other countrieswith comparable conditions, but the differential appears,
in fact, to be lessin degee than in those territorieinAfrica in respect of
which available statistics have been quoted above.
61. It will be convenient to deal in this context also with certain
further accusations made by Applicaiits which are allied to their charges
concerning aiieged "low-cost labour" and "low wages".
In the Reply l Applicants quote an extract from a newspaper, the
WindhoekAdverliser,in which the former Administrator of the Territory,
Mr. D. du P. Viljoen, was reported to have made a plea to employers of
labour in South West Afnca to "do with as little non-European labour
as possible. Wemust create a surpIus oflabour".
Applicants Saywith reference tothis reported statement that Respond-
ent "has not concealed the racially discriminatory motivation of
ent's policy to create a surplus of non-European labourhainithe Territory,
with the implication that Respondent fosters the creation of a low wage
level fornon-European employees.
Applicants' contention, and the implication arising therefrom, are
unfounded. Iith regard to the statement ofthe Administrator, Respond-
ent states that the newspaper report related to a speech made by JIr.
Viljoen at a social function at Walvis Bay during January 1960in which
he referred, inter dia, to labour conditions. When the newspaper report
was brought to the notice of &Ir.Viljoen, he stated that his speech was
neither fully nor correctly rendered in the report. Indeed, if Mr. Viljoen
had made the statement attributed to him, it wouId have been in d~rect
conflict with the policy of, and pronouncements made by, Respondent
regarding this selfsame issue. It has never been Respondent's policy to
create a surpIus of labour, or to reduce, or peg, the wages of Nativcs or
othcr non-Europeans in the manner suggested by Applicants, or other-
wise. On the contrary, Res ondent's whole system of control of Native
labour is designed, inter a ia, to protect the Native population in the
developed areas. If Respondent's existing control measures were to be
abandoned, an influx of Natives to the urban areas would bring about a
surplus of labour, and consequently a lowering of tvageç. And the very
fact that a minimum wage islaid down for northern and extra-territorial
Natives who enter the Police Zone to take up employment therein *,
dispels any suggestion of a desire to create a situation of "cheap labour".
62. In support of its denial of Applicantç' ailegations in thiç regard,
Respondent qiiotes the following extracts from staternents regarding
labour policy made by the South African Prime Minister, Dr. Verwoerd,
both before and after the occasion of &,Ir.Viljoen's speech in January
1960.
At the opening, on 17 Decembcr 1956o ,f the Fifth Annual Congress
IV, p. 410.
* Vide para45, supra. REJOINDER OF SOUTH AFRICA 221
of the Administrators of non-European Mairs in Southern AfRca,
Dr. Verwoerd, then &finisterof Native Affairs, said, interdia:
"In the long run it is perhaps the Native who wfilbe the biggest
victim of the selfishness of the European if he allows uncontrolled
influx, because when excessive numbers of Natives are present then
the consequences are low wages, inferior housing and vagrancy and
from the vagrancy arise crime, poverty, distress, and the disintegra-
tion of family life. These are social evils ~vhichwe must avert, inter
alia, by seeing that unlimited, uncontrolled influx does not take
place ...
In other words, uricontrolIed influx merely to create an unneces-
sarily large pool of labour, in spite of the darnaging effect on the
Native and in the European community and notwithstanding the
heavier burden of providing housing and finding land for locations
lvhich it brings about, is altogether wrong. Influx control which is
sometimes represented as merciless in its operation, is in reality
merciful and sensible asregards bothEuropean and non-European l."
And, as Prime hlinister, Dr. Venvoerd said the following in the South
African Parliament on gMarch 1960:
"Influx control-ensures ihat there will be no redundant pool of
labour in the citieswith consequentid unemployment and lowwages.
Steps are being taken by means of influx control to see that the
amount of labour while sufficient is sufficiently lirnited so thât there
can be competition for that labour, competition which is basic to the
building up of any wage structure 2."
Although the above statements relate more specifically to conditions
and policy in South Africa, they are basically applicable also to South
ilTestAfrica.
63. Another accusation made by Applicants relative to the cost of
labour isthe following:-
"The predilection of ernployers for low-cost labour, coupIed with
Respondent's concern that no 'European' person be placed in the
position of 'serving under the authonty of a Native' ... assures
that the horizon of 'Native' economic potential remains confined to
the semi-skillecllevel 3."
Here again is a case where Applicants utilize a wrong premise for the
formulation of a charge which isbaseless.
As Respondent has indicated 4,the wage-levels of the Native workers
in the Territory are in fact not low by any comparable standards, and
nothing is advanced by Appfcants in support of their statement that
there is a "predilection" on the part of ernployers for "low-cost labour"
which, if intended to mean that employers in the Territory are generally
not prepared to pay their uyorkmen a reasonable wage, is wholly un-
Local Authorifiesund Tlie Stafe, Opening Speech delivered by the Hon. Dr.
H. F. Verwoerd, Minister of Native Affairs, at the Fifth Annual Congress of the
Administrators 'of Xon-European Afiairs in Southern Africa on 17 September,
1956 (19573p,p 10-12.
U. of S.A.,Parl. Deb., HouseofAssembly,Vol. roq(1g60)C ,ol.2996.
3 IV, p.408.
Vide paras.50-51. supra.222 SOUTH WEST AFRICA
founded. On the contrary, as Respondent has indicatedl, many em-
ployer~ pay their workmen well above the stipulated minimum wage,
and thereby a tendency is created for wages generaily to rise above the
minimum.
64. Likewise, when speaking of "Respondent's concern that no
'European' person be piaced in the position of 'serving under the authori-
ty of a Native' ", Applicants make use of part of an esplanation given
by Respondent relative to certain provisions in the mining regulations of
the Territory in such a manner that it creates a wrong impression.
Respondent's explanation of the said measures was, inter alia, that,
due to the traditional position of the European group vis-A-visthe Native
groups in the economic field, "most Europeans would refuse to serve
in positions where Natives might be placed in authority over tliem" 3,
and that, accordingly, "[a] major and harmful degree of tension and
friction could residt from situations in ~vhichEuropean employees in the
rnining industry could be piaced by their employers before the choice of
either serving under the authority of a Native or reIinquishing their
employment" 4.
It is not so much a case, as Applicantssuggest, "of concern on thepart
of Respondent that a Native should be pIaced in a position of authority
over a European", but rather a case of being concerned about the conse-
quences of such an act in the situation which obtains in the Terntory.
65, Finally, it may be observed that Applicants fail to indicate how
the factors mentioned by them do, or could in any wap, "assure" that
"the horizon of 'Native' economic potential remains confined to the
semi-skilled level"-which, as a factual statement, is in itçelf untrue.
Respondent has already indicated that many Eatives are employed
in higher and skilIed occupationç in agriculture, in industry,in commerce
and in the generaI administration of the Territory.
The fact that the majority oi the Native workers of the Territory are
still employed as unskilled or semi-skilled workers, cannot be attributed
either to the aforementioned regulations, or to the wageç which are paid
to Native employecs. It is, as Respondent has already stated 5,due to the
fact that, inasmuch as the Natives generally are still on a path of transi-
tion from a traditional economic and social system to a modern one, the
majority of them have iiot yet attained the ski11 or experience to hold
higher and skilled posts.
The position which the majority of Natives occupy in the economy of
South West Africa can no more be ascribed to the lcvel of wages paid in
the Territory than the labour position which obtains in the Applicant
States can be ascribed to the wage Ievels in those countries 6.
With regard to the position in Ethiopia the following is stated in a
publication of the United States Department of Commerce:
"The labor force employed for wages is not known, but it is a
small rninority of thetotal ~vorkingpopulation. The unskilled labor
force is virtually entirely Ethiopian. hluch skilled labor içstill non-
Vide para.46,supra.
3 III, p. 55.vide III, pp. 55-56and paras. 76-77, infra.
Ibid.p.56.
Vide para- 6sufiva.
Vide in this regard para. 50, supra. REJOINDER OF SOUTH AFRICA 223
Ethiopian, but increasing numbers of Ethiopians are entering the
skilled category as cornpetence is acquired through education and
on-the-job training l."
Another authority has described the labour position in this country as
follows:
"One of the basic handicaps of industrial development is the
shortage of skilled labor ... Virtualythe entire unskilled labor force
is Ethiopian 2".
The position obtaining in Liberia is very much the same. Thus, in
another publication of the United States Department of Commerce, it is
stated that-
"Liberian workers on the whole have had relatively little training
in modern work methods and skills. Such training as they have
received has corne almost entirely from foreign employers and, to a
lesser extent, from the Liberian Government ...
And W.A.Hance wrote in 1958that-
"[tlhe shortcornings in quality of labor stem largely from the lack of
training and educated Liberians ... Almost the entire labor force is
unskilled 4."
66. Respondent, for the reasons aforestated, denies Applicants'
allegations that wages paid to Native ernployees in the Territory are
"low" or "extraordinanly low", or thatthe level ofwages in the Territory
"assures that the horizon of 'Native' economic potential remains confined
to the semi-skilled level".
E. Rights ofthe Natives in Respectof the Acquisition and
Occupationof Land
67. In this connection Applicants Say :
"The relegation of 'Native' interests to a low priority occurred
from the inception of the Mandate; it is apparent even from the
manner in which Respondent describes certain historical situations,
in its Counter-Memonal 5."
Upon thisstatement there followin theReply four shortpassagesextracted
by Applicants from a part of the Counter-Iilemorial in which Respond-
ent explained the policy which was applied from the inception of the
Mandate in developing the agricultural potential of the Police Zone, and
dealt with certain allegations made in the Memorials thereanent 6.
Applicants do not indicate in what respects the passages quoted by
thern are regarded as illustrating that there has been a "relegation of
'Native' interests to a low priority". However, from the fact that Appli-
cants italicize certain words in the quoted passages, and from their
rernark that "the 'Natives' acknowledged as living on land. ..were not.
1 United States Department of Commerce, "Establishing a Business in Ethiopia",
World Tradc I~forrnation Semice-Economic Reports, Part 1,No. 59-16,p. 6.
Lipsky. G.A., Elhiopia: Its People, Its Society, Its Culture (rg62270.
U.S. Dept. ofLabor, Labor in Liberi(May 1960)p.. IO.
Rance,W.A., Afvican EconomicDevelopwacrtt(x958)p ,238.
IV, p.410.
6 III, pp.10-38.z24 SOUTH WEST AFRICA
of course, in 'possession' thereof" l, coupled with their submission that
the said passages contain "mutually contradictory contentions" 2,lie-
çpondent understands the points sought to be made by Applicants to be
the following :
(i) Wliereas Keçpondent, on the one hand, averred that the Natives
in the Police Zone were at the inception of the Alandate "to a
considerable extent landless", and that Respondent had to create
reserves to ensure possession of land by them, it stated, on the other
hand, that when land was granted to European farmers, on u~hich
Natives were living at the time of the grant, such Natives had to
remove from the land unless they were prepared to work for the
farmers: Respondent's contentions were thereforc "mutually
contradictory".
(ii) Tnasmuch as Natives who were li\.ing on land were thus forced off
slich land, unless they were prepared to take up emplopent with
the farmers to whom the land had been granted, their interests were
relegated to a "low priority".
Iiespondent states that both these conclusions, which can be reached
only by contrüsting, out of context, certain passages contajned in the
Counter-Mernorial, are unsound. For s proper understanding of lie-
spndent's contentionsin question,regardmust be had to the full context
in which the said passages appear, inwliich an exposition wasgiven of the
situatioii iiSouth West Africa at the inception of the Nandate, and in
which the application and development of Respondent's policies relative
to land tenure were described against the historical background.
65. Dealing first with Applicants' point that Respondent's contentions
are "mutually contradictory", Respondent states that there is no contra-
diction between its statement that the Natives in the Police Zone were at
the inception of the hlandate "to a considerable exterit landless", and its
further staternent that in cases where land had been granted toEuropean
farmers on which there were Natives, such Natives were rcquired to re-
move from the land unless they were prepared to work for the farmers.
This will appear from the following brief restatement of the lengthier
exposition given in the Counter-Mernorial.
The limited extent to which the Native groups in the Police Zone were
at the inception of the Mandate settled in defined areas of land to whicli
their rights of occupation were recognized under the German regime, is
described in the Counter-Mernorial 3.For therert there had, as a result of
the wars during the German regime, been a considerable confiscatioii of
tribal lands by the Gerrnan authorities 4.As a result thereof, and also as a
result of the severe conflicts which had taken place between the Native
groups themselves, mainly due to conflicting claims to land, the Natives
in the Police Zone, which had a Iow density of population, were at the
inception of the Alandate largely detribalized persons scattered al1 over
that Zone, in many cases separated from their clans and families 5, and
without anyrecognized occupational rights toland. Nany simply squatted
on land which had not been occupied by thern prior to the inception of
1 IV. p. 410,footnote3.
2 Ibid., p.410.
111,pp. 239-240.
'II, p. 403and III, p. 239. XEJOIXDER OF SOUTH AFRICA 225
the Nandate, and a large nurnber were vagrants who rnoved from place
to place.
It waç in describing this situation that Respondent stated that the
Natives of the Police Zone were "to a considerable extent landless",
which in the context does not stand in contradiction to the other fact
stated by Respondent, viz., that these Natives were in fact living on, or
roaming over, land in the Police Zone.
69. With regard to the second point sought to be made by Applicants,
viz., "the relegation of 'Native' interests to a low priority", Reçpondent
esplained fully in the Counter-blemorial the basic considerations of its
reserve polîcy, in irnplernentation of which it from time to time estab-
Lished new reserves for the Natives in the Police Zone and extended
them over the years
Ml these considerations had at heart the interests of the Native groups,
who, through the creation of reserves, were provided with defined por-
tions of land in which their rights of occupation wererecognized and could
not be disputed by others who originally made conflicting claims. The
land urasprotected for them by prohibition against alienation thereof, and
provided a basis for their advancement in a maiiner and at a Pace appro-
priate to their circumstances.
At the same time, however, Respondent had to develop the agricul-
tural potential of the Territory, and the most practical way in which this
could be done was by cncouraging European settlement of parts of the
PoliceZone that had not been reserved to the Natives as aforementioned2.
In the process of settling European farmers on the land it was un-
avoidable that in those cases where Natives were present on farms gran-
ted to European settlers they should be required to remove therefrom
andsettle in the reserves createdfor them, orelsewhere-unless they elec-
ted to remain on the farms as employees of the farmers.
Looking at the situation as a whole, the requirement that Natives
should in such circumstances remove from land and take up residence
elsewhere, cannot, in Rcspondent's submission, be deçcribed as a "rele-
gation of 'Native' intercststo a lowpriority". Inits entirety Respondent's
policy made provision, by the establishment of reserves, for Natives who
had to depart from land upon which they rnight, at the time of the grant
thereof, have been liviiig, but to which they had no recognized right of
occupation.
Without such an arrangement economic development of the Territory
would have becn stultified,to the detriment of al1 the inhabitants, in-
cluding the Natives.
70. In support of a contention thal alço other "mutiially contradictory
contentions of Respondent underscore its preoccupation with 'European'
interests and itç abdication of responsibilities with respect to 'Native'
interests" 3,Applicants quote certain passages from the Counter-hlemo-
rial in ~vhichRespondent dealt with individual land tenure in the urban
areas of the Police Zone.
By quoting these passages, Applicants seek to bring in contrast, as
contradictory contentions, Respondent's statement, on the one hand,
III, pp241-252.
II, pp. 409-410andIII.pp.Io-sr
IV, p.j IO.226 SOUTH WEST AFRICA
that, although it has alxvaysbeen open to Natives to purchase land in the
rural areas of the PoIice Zone, they have not done so or shown any
interest in the possibiiity, with, on the other hand, the following state-
ment relative to leases under Respondent's land settlement scheme, viz. :
"The condition regarding rniscegenation in the probationary
lcase cannot by itselfbc relevant to 'well-being, social progress and
development in agricultiire', except to the extent that it indicates a
contemplation that suchleases would ... begrantedtoEurofieans only.
That this has indeed been the corztewz$lation, is admitfed. When Re-
spondent deems theNative population ripe for individual land settle-
ment, provision cari be made therefor l."(Italics added by Appli-
cants.)
Here, too, there is no contradiction. The fact that it was Respondent's
purpose that the leases under the said scheme were to be granted to
Europeans only, is not in conflict with Respondent's statement that no
Native has ever, despite the absence of any legal impediment in that
regard, purchased land in the Police Zone. The reason why the leases in
question were intended only for European farmers was that the Coloured
and Native persons were regarded by Respondent as on the whole not
sufficientlyadvanced to meet the requirements of modern farming prac-
tices in the Territory *. In their case other provision was made, in the
form of reserves, to meet their needs as these increased from time to
time 3.The fact remains, ho\vever, that most of the farms in South West
Africa are already held in individual ownership without any restriction
regarding alienation thereof, and whiIe farms change hands from day to
day, no Native has as yet purchased a farm.
71. In this connection Applicants say :
"It is not surprising that no 'Native' has ever purchased land.
'[A]ssistance under the land settlement laws had not been requested
by, orgranted to, Natives' '."
Respondent explained in the Counter-Memorial ~vhyits land settle-
ment scheme has up to the present been applied only with respect to
European farmers, by referring to-
"[tlhe difficulty of developing land in the Territory, the necessity for
applying modern scientific methods offarming, soi1conservation and
water utilisation, and generally the complexity of agriculture and
marketing in the adverse conditions existing in South West Africa =",
and by stating that the Natives generally have not yet reached the stage
of development where, under the circumstances aforementioned, they
would beneht from individual land ownership 5.Inasmuch as Applicants
fail to deal at al1withRespondent'ç reasoningin thisregard, it isconsidered
unnecessary to take the matter further, Save to deny Applicants' charge
that there is in this connection a "preoccupation with 'Eiiropean'
interests" or "an abdication of reçponsibilities with respect to 'Native'
interests".
IV, p. 411. Videalso inthis regard the allegations at p. 415,
III,p. 33 and videChap. III, para.25, infva.
Ibid.p. 31.
+IV.p. 41I.The portion in singIe quotation marks iscitedfrom III,p.26.
IIIp. 33. REJOINDËR OF SOUTH AFRICA 227
WhiIe Respondent has, on the one hand, granted assistance to Euro-
pean farmers, it has, on the other, also assisted the Natives by estab-
lishing and enlarging the Native reserves l, and by contributing to the
agricultural development thereof The form of assistance granted to
each of the groups was, iii Resyondent's submission, appropriate to the
circumstances of that group.
72. Applicants conclude their comments relative to Respondent's land
settlement scheme with the following remark:
"Furthemore, any such purchase [of land] would give to a
'Native' precanous tenure, inaçmuch as he could at any time be
moved from his land 'to any other place within the mandated
Territory' by a government in which he is not represented 3."
This remark ismade with reference to section I of the Native Admilzis-
tration Proclamatio~zNo. 15 of 1928 4, which, inter alia,empowers the
State President, "ivhenever he deems it expedient 212th general $ublic
interest,[to] order the removal of any tribe or portion thereof or any
Native from any place to any other place within the mandated Temtory".
(Italicsadded.)
Respondent explained fuIly in the Counter-;\fernorial the necessity for
vesting the State President with powers of this nature 5, aiid mentioned
the few occasions on which the said powers had been exercised, on each
occasion to protect the public interest6.
Applicants have not dealt at al1 with Respondent's argumentsor with
the facts adduced by it in this connection; instead they simply refer in a
footnote in the Reply to what they term a "survey of a number of such
removals in the past". This reference isto a 1957 report of the Committee
on South West Africa which dealt, interalia,with newspaper reports and
petitions received by it relative to (i)the voluntary removal of certain
Natives frorn the Aukeigas lieserve to other and larger areas added to a
proclaimed reserve for them 7; (ii) a proposa1 to add a certain portion of
land called the Corridor to the Aminuis Reserve in exchange for two
inferior portions of the said reserve, and (iii)the proposed rernoval from a
farm Hoachanas of certain Natives who were unlawfully resident there-
on In fact none of the said matters was dealt with under the proclama-
tion referred to by Applicants.
Respondent finds it strange that Applicants should refer to the so-
called "survey" when Respondent had dealt fuliy with the above mat-
ters in the Counter-Xemorial and had given a detailed explanation
1 III, pp. 249-250Videalso Chap. III, paras26-29,infra, regarding the recom-
mendations of the Odendaal Commission for the further extension of the Native
areas and the constitution of homelands for the various groups.
2IbDd.. pp. 6-8 and 17-18.
IV,p. 411.
Ibid.,footnote4.
III, p.268 elscq.
Ibid.. pp. 270-271.
Vide R.P. No. 1211964 ,. Gg (para. 250).
The report of the Committee also made mention of an exchange of a portion
of land in the Eastern Reserve for landadded to the Waterberg-East Reser(G.A ..
O.R., 12th Sess.Svppl. No. 12 (A13626). p. 16,para.79).This exchange did not.
however, involve any removal of Natives.
9With regard to Aukeigas vide IIIp. 130. With regard to theproposed addition
to the Aminuis Reserve. IV,fip. 3-5With regard to Hoachanas, IV,pp. 6-9.228 SOUTH !!TEST AFRICA
which Applicants have not controverted or even mentioned in the Reply.
Applicants' contention that the existence of such powers aç are vested
in the State President by the Proclamation in question renders individual
land tenure precarious for a Native, is so preposterous that it merits no
consideration. One could equally say that the existence in the Territory,
as in most countries of the world, of legislation which permits of land
being expropriated by the State for public purposes renders land tenure
precarious for everyone-European, Coloured and Native l.
F. ThePositionof the Natives in the
Mining Lndustry
73. With regard to the role of the Natives in the mining industry,
Applicants Say:
"Respondent's assumption of inevitability of permanent main-
tenance of the status quohas led to deprivation of opportiinity and
incentive which helps in turn to assure the continuance of the statzcs
gzto2."
In this connection they quote in contrast two passages from the
Counter-hlemorial 2. In the first passage Respondent pointed out that,
despite the fact that prospecting and mining in the Native reserves have
for al1intents and purposes been reserved for the Natives, they have thus
far generally shown a lack of iiiterest in mining activities. And in the
second passage Respondent explained that, because of certain iriherent
difficulties in the conduct of rnining operations in the Territory, such
operations have to be on a large scale, requinng the employinent of
qualified and experienced technical personnel and substantial capital
funds. In illustration of the latter statement Respondent pointed to the
fact that as much as 96 per cent. of the mining output in South IVest
Africa is controlled by tu-Ocompaiiies.
Respondent does not apprcciate how, in the circumçtances as above
described, Applicants can speak of a "deprivation of opportunity and
incentive", or of an "assumption [on the part of Respondent] of perma-
nent maintenance ofthe statacquo".
Far from there being a deprivation of opporiunity and incentive, the
position is justthe opposite, inasmuch as opportunities for the Natives to
prospect and mine in their own areas have been specially reserved for
them 3.The fact that the Natives have thus far generally shown a lack of
interest in mining activities, Save in participating as employed mine
workers, is in no way due to any deprivation of opportunities but, as
Respondent explained 4, to their stage of development, their background
and traditional subsistence economy. And, as Respondent pointed out
by reference to a United Xations publication, the position of the Natives
in the mining industry in South West Afnca is very much the same as
that found elsewhere in Africa *.
l Vide in this regard the recommendationsthe Odendaal Commission concerning
the acquisition of certain Europerin farms in its proposais for the establishmeiit and
extension of homelands for the various groups.H.P. No. 1211964, pp. 87. 89-93,
95, IOI and 103;IV, p. 210.
1v.p.jii.
111.pp. 50-51.
' Ibid., p. 56. REJOISDER OF SOUTH AFRlCA 229
In thc circurnstances it is indeed strange that, while AppIicants
singularly fail to deal with the facts related and arguments advanced in
the Counter-Memoriül, they make a bald accusation in the Reply of a
"deprivation of opportunity and incentive" without adducing anyfacts
or a-gument in suppArt thereof.
74. Equally unfounded is Applicants' charge regarding an "assumption
[on the part of Respondent] of inevitability of permanent maintenance of
the statzls quo", a charge which totally ignores the factual material
presented in the Counter-Mernorial.
\{'hile Respondent did statethat at the present stage of development
96 per cent. of the mining output in the Territory is controlled by two
compaiiies-a state of affairs which was explained with reference to
factors neceçsitating large-scale operations-it also rnentioned future
developments which ithad in mind, particularly in so far as the Kative
inhabitants were concerned. Thus Kespondent dealt with the reasons for
the appointment of the Odendaal Commission, its composition and its
terms of reference, which included the task of investigating and ascer-
taining how further provision should bemade, inter alia,for the develop-
ment of mining in the Native areas l.
In its report the Commission gave a complete survey of mining activi-
ties in the Territory 2,and made extensive recommendations regarding
the exploration and rnapping of the Territory, and the exploitation of its
mineral resources. Included in the said recommendations are the following
with regard to prospecting and mining in the Native areas:
"(f) mineral rights, including mining rights, [to] be held in trust for
the various homeland authorities and be transferred to them as
soon as practicable; it is also important that the inhabitants
of the Homelands should be encouraged and assisted to become
entrepreneurs in their own areas, as well as managers and re-
sponsiblc officers in their own mining. The inhabitants should
be encouraged as far as possible to take an active part in the
economic development of their Homeland;
(g) under the guidance of the Division of Geological Survey of the
Department of Mines and the Department of Bantu Adminis-
tration and Development, those interested in the various
Homelands be acquainted with characteristic properties of
some important minerals so as to stimulate the interest of the
iiihabitants and encourage their participation in prospectmg
for minera1 occurrences. In mining itself, too, the inhabitants
of the various Homelands must as far as possible be encouraged
and trained to occupy the most responsible posts 3."
Although, for reasons which have been stated 4, Respondent has
deferred its decisionç on the Commission's recommendations relative to
the constitution of homelands for the various population groups, it con-
sidered that the exploration and development of the minera1resources of
the Territory were matters which required immediate attention, and
announced that it had been dccided "(a) to organize the esploration and
l II, p.476and III, p.56.
R.P. No. 1211964,pp. 335-343.
IV, p.457.
fiid.p.p. 212-216.230 SOUTH WEST AFRIC.4
mapping of the ~vholeTemtory" and "(b) to assist and encourage the
inhabitants of the non-White areas in prospecting and exploiting the
mineral occurrences in such areas" l.
75. In this connection it may be stated that large-scale mapping and
exploration work is already under way, and prospecting operations are
ex ected to follow soon after the preliminary work has been completed.
ft may also be stated that, in accordance with decided policy, the
assistance to be given to Natives in connection with prospecting and
mining in their areas will be of such a nature that the Natives will as far
as possible be drawn into mining enterprises in such areas, not only as
employees who may aspire to and occupy al1 posts to which they rnerit
appointment, but also aç entrepreneurs. Although developments in this
direction will take some time and cannot be unduly rushed, Respondent
hopes that, with due encouragement and appropriate assistance, Natives
will before long become established in their own mining enterprises. In
this connection Respondent points out that in addition to the instances
mentioned in the Counter-Mernorial of Natives and Coloured people
already engnged in prospecting and mining operations of their own 2,a
resident of the Kaokoveld, one Willern Hartley, is at present carrying on
mining operations on a Sodalite deposit in the Kaokoveld 3.
In the premises, it is hardly necessary to Say that Applicants' accusa-
tion regarding an assumption on the part of Respondent of "permanent
maintenance of thestatus quo" is without substance, and is denied.
76. With regard to the mining regulations at present in force in the
Territory ',Appiicants allude to concessionswhich Respondent is alleged
to have made in the Counter-3lemorial. Thus they say that Respondent
conceded "that only 'Europeans' may be employed in levels above
common labour in mining enterprises 'owned by a European' "5. This
version of what was stated in the Counter-Memorial is entirely wrong.
What Respondent did Say was that in terms of the rnining regulations
certain specified posts in mines belonging to Europeans may not be occu-
pied by Natives 6.Respondent, however, went on to Say that the role of
the Natives in the mining industry is not confined to that of unskilled
labourers, and listed a number of skilled occupations in which Natives
are employed in European mining enterprises l.
77. Applicants in the Reply repeatedly refer to what they term the
"discriminatory provisions of the Mining Regulations" 8, Respondent
must consequently point out again that when, by reason of the 0verridin.g
advantagesdealt with in the discussion ofgeneral principles earlier in this
Rejoinder 9,a policy of separate development iç decided upon in prefer-
ence to attempted integration, the drawing of boundary lines becomes
IV, p. 207.
2III, p. 61.
3Departmental information.
G.N. No.33 of rg56inThe Laws ofSouth West Africa 1956, Vol.XXXV (II),
PP. 499-723.
' IV,p. 405,
6 IIID. 55.
7 ~bid:i.-56.
8These regulations, ortheir alleaed eHect. are referred to in the section of the
Reply.dealing with the economic aspect at IV. pp. 405411 and 420.
Vide sec.E, supra. REJOINDER OF SOUTH AFRICA 23 1
indispensable. And these boundanes are required not only in the political
and territorial sense, but also, particularly in the transitional stages, in
the economic sphere. If this is not done, and attempts were made at
creating economic integration, the resultant tensions, reactions and
struggles would render impossible progress towards the goal of separate
development, viz., the peaceful CO-existence of separate population
groups. In the circumstances al1measures at preçent having an adverse
effect on some must be judged against the advantages envisaged for al1
in the application of the policy of separate development. In the light of
the foregoing, Respondent proposes to elucidate in more detail than
before the practical effect which the said mining regulations have in
respect of Native mineemployees,in sofar as they rnay not in terms of the
regdations be appointed to certain posts in rnining enterprises belonging
to Europeans.
The posts which Natives may not be appointed to in such enterprises
are the following: Manager; Assistant, sectional, or underground man-
ager; Mine overseer; Shift boss; Ganger; Engineer; Person in charge of
boilers, engines and machinery; Surveyor; Winding engine driver;
Banksman or onsetter l.
At present the following numbers ofperçons of a11 groups are employed
in the mining industry in the Territory :
Europeans .................. 2,143
Coloureds .................. 162
Natives ................... 8,344
Total ... 10,649
In the whole of the mining industry there exist at present rgo posts
which, in terrns of the aforementioned regulations, rnay not be filledby
Natives. This number ismade up as follows:
Designution ofPost ivurnber of Posts
Manager. ................. 6
Assistant,sectional orunderground manager . .
Mine overseer ............... 5
Shift boss ................. 22
Ganger .................. 104
Winding engine driver ........... 20
Banksman and onsetter ........... 28
140
If, therefore, despite what is stated hereinafter relative to the qualifi-
cations and ability of Native mine employees generally, the assumption is
made that there isa çufficient number of Natives competent to fil1al1the
said 190 posts, then the regulations in question would at present pre-
judicially affect only goNatives, i.e., slightly more than2percent. of the
Native employees inthe industry.
l III, p55, The two last-mentioned posts were inadvertently omitted from the
list in the Counter-Mernorial. Vid8 in this regard G.N. No. 33 osecs.66 (2)
and 71 (11 i,The Laws of SouthWest Africa 1956.Vol. XXXV (II), pp. 561.563
and 569.
Departmental information.
Ibid. The said numberdoesnat include those posts in respect of which exemp-
tion has been granted from the provisions of the regulations as mentioned in para.
79,infra.232 SOUTH WEST AFRICA
78. The fact is, however, that, saveperhaps for a vew few, the Natives
emp1oyed in mining are as yet not qûalified or compétent to fd any of
the said posts, and the few that constitute the exception could at best
only aspiie to the lower levels of such posts.
Enquiries made in this regard from the five largest mining concerns in
the Territory, al1of which are companies, are revealing. Three of the said
companies intimated that the rcgulations do not prejudicially affect
their non-White employees in that none of them would be competent to
fil1any of the posts from which they are excluded under the regulations.
The fourth company took the position that it was quite impossible to
estimate how many of its non-White employees might be eligible for any
of the said posts, as no steps had been taken to classify them or train
them for promotion to such posts. The fifth company replied that only
one of its non-White employees might qualify for promotion to some of
the said posts, but that he was holdin- a cierical posl.
79. Finaliy, Respondent points out that, in terms of the regulations,
exemption may in suitable cases be granted from the provisions which
exclude non-iirhite persons from the aforementioned posts in European
mines. In this regard Regulation 167 provides as follo\vs:
"IVhenever the circumstances at any mine or works are such asto
render any provision of these regulations inapplicable or unduly
onerous . .. the Inspector [of Mines] may gant exemption from such.
provision under such conditions as he may deterrnine
Since 1962 five non-White mine employees have in tems of this provision
been granted exemption in particular circumstances to enable them to
occupy positions in mines owned by Europeanç, which positions would
otherwise have been closed to them.
In the premises aforestated, Respondent submits that Applicants
grossly exaggerate the effect which the said regulations have on the
Natives employed in themining industry.
Respondent stresses again that the ndverseeffect which suchregulations
have at the present time rnust be weighed against the greater over-al1
advantages-for al1inhabitants of the Territory-of a policy of separate
development as compared with attempted integration of al1 the popu-
lation groups. Seen in this light, it is submitted that the lirnited adverse
effect of the said regulations is of little consequence in the total picture.
80. Applicants also question a further statement made by Respondent
relative to the aforementioned provisions of the mining regulations, viz.,
thestatement that such provisions are considered desirablein the present
phase of transition through which the Natives are passing towards
separate self-realization, and "are destined to fall away \&en develop-
ments in the latter respect rernove the reason for them" 3.They say in
this regard-
"[tlhe implication iseither thst the 'Natives' willdevelop their own
comparable mining enterprises or that they will, in any event,
eventually be discharged from employment in the Police Zone mines.
The first alternative is striliingly improbable, if only in view of the
Departmental information.
G.N. No. 33 of 1956,sec. 167 in The Laws of South West Africa 1956,Vol.
XXXV (II), pp. 655-657.
III, p56. REJOINDER OF SOUTH AFRICA 233
quotationsset forth hereinabove; thesecondaIternative would lead to
the labour surplus desired by the Administrator, but to neither the
material well-being nor the social progress of the 'Natives' l."
(Footnoteç omitted.)
Inasmuch as Respondent was specific in stating its contentions and
expectations rvith regard to the future economic development of the
Native areas, including the development therein of the mining industry,
there was no need for Applicants to speculate on possible implications.
Thus Respondent, after refen-ing to the preference, encouragement and
protection consistently given to members of the Native groups in their
own areas =, and after dralving attention to the task entrusted to the
Odendaal Commission with regard to the development of ~nining iii the
Native areas 2,expressed the hope "that the Katives will in time show
increased interest in the mining industry, and establish mining enter-
prises which will accornmodate such Natives as aspire to the technical
and higher yosts in the industry" 2.
Respondent's attitude was therefore made clear, and, as iridicated
above 3, its views and expectations have been reaffirmed by the recom-
mendations of the Odendaal Commission regarding encouragement and
assistance to be given to the Natives in the development of mining enter-
prises in their olvn areas'.
81. Although, as Respondent stated in the quotations cited by Appli-
cants =,the Natives have thus far generally shown a lack of interest in
mining activities otherwise than as ernployees, and that in the circum-
stances of the Territory mining operations must, to be successful,
generally be conducted on a large scale 5, which quotations Applicants
now rely on for their staternent that the "first alternative is strikingly
improbable", there is,in Respondent's opinion, no reason why the Native
inhabitants, or at least çomeof them, should not, with due encouragement
and appropriate assistance, in time show sufficient interest in establishing
their own mining enterprises.Respondent realizes, however, that progress
and development in thisregard may take time. Nevertheless it is Respond-
ent's expectation that more and more Katives wiil gradually be offered
employment in their orvn areas, resulting in a corresponding withdrawal
of Native workers from the existing mines operated by Europeans,
which must be expected to corne to the end of production in the not too
distant future 6.
There will in any event not be occasion for the drastic step referred to
by Applicants as an alternative, viz., that the Natives at present em-
ployed in European mines "will . . . eventually be discharged from em-
ployrnent in the Police Zone" 1-unless, of course, this inay be occasioned
by unavoidable circumstances such as the closing of a mine when it has
reached the end of production, or for other economicreasons. Applicants'
suggestion of apossibility that the Natives may eventually be discharged
from ernployment in the Police Zone because of a desire for surplus
lIV,p. 412.
III, p.57.
Videpara. 74,supra.
+ Ibid .idealso Respondent's reactionas thereset out.
' Vide IV. p. 4I.
Vide R.P. No. 1211964,p. 333 (para. 131(v) b).=34 SOUTH WEST AFRICA
labour, does not merit further consideration inasmuch as Reçpondent
has already explained that it isnot its policy to create a situation in
which there will be a surplus of labour.
82. Applicants also state inthis regard:
"In fact, the actual result will be that the 'Native' labour forces
will continue to man the mines, under the same 'unpopular control
measures', for many years into the foreseeable future. These
measures, although allegedly 'destined to fa11away', have an in-
determinate future, as they have had a long history 2."
In support of the view thus expressed, Applicants rely on a statement
made by the South African representative in a letter to the Permanent
Mandates Commission in 1928, when he explained that Natives were
not ernployed by the Administration or by the Railway Department in
certain posts involving the risk of human Life,because of their then low
state of dcvelopment, but that that practice was a temporary one which
would corne to an end when the Natives were çufficiently advanced to
undertake such responçible work.
The point which Applicants apparently seek to make with reference to
thisstatement is that, although many yearshave ela sed since thestate-
ment waç made, Natives have not yet been allowe f to undertake such
reçponsible work. If this is their point, then Applicants have completely
disregardcd the factual information preçented in the Counter-Mernorial
relative to the ever-increasing number of higher and skilled poçtç which
are being filled by Natives in employment on the railways 3, and in the
service of the Administration 4, as well as the reasons advanced by
Respondent why in the process of separate development, Natives are not
appointed to certain higher posts in the Railway Administration except
where they servetheir ownpeople
The South African representative, when giving the aforementioned
explanation to the Permanent hlandates Commission in 1928, could, of
course, not have foreseen the exact form which future developments
would take in the application of the policy which has becorne known as
"separate development", in accordancewith which self-realization of the
different population groups issought to be attained by territorial separa-
tion, with protective measures for each gr-up -n its own area.
83. With progress in the implementation of tlie policy of separate
development. and increase in the tempo of development, more and more
opportunities will be created for the Natives in their own areas, and this,
as Respondent had indicated 6,isexpected to be the position also in the
mining industry.
Aithough it may be true that Natives will for many years still be em-
ployed in European rnining enterprises outside their own homelandç,
where they will be subject to control measures, the effect of such mea-
sures on their opportunities of employrnent-which, as Reçpondent has
indicated. is in any event minor 7-will automatically be reduced further
l'ide para61-62,supra.
IV, p.412.
III, p. 67.
Ibid.. pp. 149-155.
Ibid., pp67-68.
Vide paras.77-78, supra.pra. REJOINDER OF SOUTH AFRICA 235
as alternative opportunities become open to them in mining and other
enterprises in their own areas. hloreover, developments along these lines
are bound to reduce and remove situations in which members of one
population group can feel themselves threatened with political, economic
and cultural domination by others. And, as has been indicated in the
treatrnent of the general principles of Respondent's policies, this factor
concerned, upon removal of irksome controls, or their reduction to barel
necessities. Exactly how long this will take, will depend to a very large
extent on the capacity shown by the more talented members of the non-
White population groups to grasp the opportunities for self-realization
offered to them and their peoples by the policy of separate development,
particularl in the phase of accelerated advancement in pursuance of the
Odendaal eommissionreport.
G. The Opportunities of Employmentfor Natives in the Railways and
HarboursAdministration
84. In the Counter-MemorialRespondent descnbed the progress which
the Bantu people in South Afnca had made in qualifying themselves for
appointment to skilled and responsible positions in the Railtvayç and
regard Respondent stated further :hey serve their own people. In that
"As the Natives become better qualified, educationally and
technicaliy, they willbe able to perform more and more services for
toccupy the highest posts in their own areal."ntually be able to
Respondent also explained that in South West Africa the Native popu
population of South Africa, but that they had nevertheless made pro-tu
gress, and that a number of posts falling within the category of "better
claw work" were open to them in the Railways and Harbours Adminis-
tration.
Applicants' response to these statements is the following:
". . any prospect for the disappearance of the policy of racial
discrimination applied inthe Railways and Harbours Administration,
by 'Natives' becoming 'eventually ... able to occu y the highest
posts in their own areas', willbe confinedfor at least fteen years to
the stretch of approximately twenty milesof main railway line, from
Keetmanshoo to Windhoek, which passes through the Berseba-
T'sesReserve IIp(.ootnotes omitted.)
The basis stated by Applicants for their line of reasoning in the above
statement, is thatthe OdendaaI Commissionmentioned in its report that
"no raiïway expansion in South West Africa is contemplated for the near
future", and that none of the Five-Year Development Plans put fonvard
bythe Commission"contemplat eexpansion" 3.
85, AppGcants'description of the future O portunities of employment
for Natives in the Railways and Harbours 1dministration in the Terri-
III. p. 68.
2 IV,p. 412.
3 Ibid., footno7.236 SOUTH WEST AFRICA
tory is,however, wrong in two major respects, both of which have an
important bearing on the matter in issue.
In the first place, Applicants have, in order to draw the conclusion
which they advance, and despite an apparently careful study on their
part of the report of the Odendaal Commission, conveniently left out of
account the fact that in addition to operating 1,45 3 iles of railway line
in South West hfrica l,the Raillvays and Harbours Administration also
operates a road motor transport service over a large network of routes in
the Temtory 2, totailing at present approaimately 5,000 miles 3.The
latter serviceis utilized mainly by Natives, the number of passengers
conveyed in 1959-1960 having been: Natives 77,621 and Europeanç
39,840 4.
Secondly, Applicants have, in predicting developments over the next
15 years, completely ignored the Commission's recommendations
with regard to the extension of the existing Native areas and the con-
stitution of homelands for the different population groups. It is of course
true that Respondent has for the present deferred its decision on the
Commission'srecommendations regarding the constitution of homelands,
but the reasons for such deferment can only be of temporary duration =,
and there is no justification for concludirtg that the homelands scheme
willnot come into operation weIlwithin the penod of 15 years mentioned
by Applicants, or that the existing Native areas will not, in any event, be
extended uithin that period.
If consideration is given to both the factors which Appiicants have
jgnored, the position, as indicated ithe next succeeding paragraph, is at
present, and will in future be, entirely different from that described by
Applicants.
86. Ttis the policy of the Kailways and Harbours Administration not
to constmct new raiIway lines unless there is justification on economic
grounds for the introduction of a new service in an area not previously
served by rail. Where a rail service cannot be justified, but public
transport is nevertheless required, the Railways and Harbours Adminis-
tration operates a road transport seMce until such time as a railway
becomes an economically feasible proposition.
Although the Odendaal Commissionstated in its report that no railway
expansion in South West Africa is contempIated for the near future =,
there has over the last few years been a gradua1 expansion of the road
rnotor service routes operated by the Kailway Administration, and
further extensions are expected, particularly in Ovamboland where
large-scale development projects are under way.
If the recommendations of the Commission with regard to the consti-
tution of Homelands for the different groups are to be accepted and
implemented, the following stretches of the existing railways, and of the
existing road transport routes operated by the Railway Administration,
will pass through the homelands mentioned below:
R.P. No. 1211964p,.377(para1 .3732 (a)(i)).
Ibid., p.381.
3 Departmental information.VideIV,pp. 213-216.
+ Departmentai lnformation.
5 IV, pp.213-216. REJOLNDER OF SOUTH AFRICA
(a) Proposed hTarnaland I
(i) existing railway line, 85 miles
(ii) existing road transport routes, approximately 80 miles
(6)Progosed Damaraland
existing road transport routes, 337 miles 5.
(c) Proposed Ovamboland 6
existing road transport routes, approximately 185miles 7.
From the above information it içclear that, even without taking into
account future extensions of either the present railway system or the
present road transport service routes, there will be very much greater
activity by the Railways and Harbours Administration in the Native
areas than predicted by Applicants.
87. In so far as Applicants' allegations under consideration may have
been intended as criticism to the effect that Respondent has been dilatory
in its duties with regard to railway facilities ~IIthe Territory, or perhaps
as criticism of the evtent to which such facilities serve the interests of
the Native inhabitants or protide opportunities of employment for them,
Respondent draws attention to the comparative table of rail facilities
given bythe Odendaal Commissionin respect of a large number of terri-
tories in Africa &.
It will be noticed that the position in South West Africacompares very
favourably with that of the other territories mentioned in the table, and
particularly with the position in the Applicant States, in respect of which
the followingfurther information isheregiven.
According to a publication of the International Monetary Fund 9,
Liberia has no state-operated rail~vays. As at the beginning of 1963,
there was only a private railway running for a distance of 94 miles, with
afurther 16 j miles under construction.
Very much the same position obtains in Ethiopia, where, according
to a United Nations publication la, there were no state railways as at
1962,and only 500 miles of railways owned by foreign enterprises.
l R.P. No. 12/1964, pp. I~I etsep.
Departmental information. This stretch of the line passes through the existing
Berseba and Tses Reserves for a.distance of 30 miles, and through the existing
Gibeon Reserve for a distance of ro miles.
3Departmental information.
R.P. No. 12/1g6q, pp. 89 et seq.
' Departmental information. Some of these routes pass through the existing
Okombahe Reserve.
R.P. NO. 1-2/1964, pp. 81el scq.
Departmental information. Large sections of these routes pass through the
existing Ovamboland territory. As soon as the Kunene Water Scheme (IV, p. 203)
is completed, consideration will be given to an extension of the said routes by ap-
proximately another IOO miles.
R.P. NO. 1211964, p. 379.
International Monetary Fund, E~onomy of Libevia (Prepared by the African
Department and Exchange Restrictions Department (Feb. 1963))p ,. rI. Vide
dso United States Department of Commerce, "Basic Data on the Economy of
Liberia", World Trade Information Seniic~-Econowic Reports, Part 1, No. 59-57.
pp. 11-12.
'O U.N. Duc.E/CN. 14(17r, EconomicBulletin for Ajrica. Vol. II, h'2.(June 1962).
P. 17.238 SOUTH WEST APRICA
SS. In the light of the information given above, Respondent denies
Applicants' allegations relative to the opportunities which are at present
open to Natives, or will in the future be open to them, in the operations
of the Railways and Harbours Administration in their own areas.
H. Respondent'sAllegedPolicyof "Laissez-Faire with Respectto
Tribalism"
89. Applicants introduce this topic in their treatment of the economic
aspect by referring to Respondent's explanation that one of the reasons
why the families of migratory workers from the northern territories
are not allowed to accompany the workers on their tours of employment
in the Police Zone is that the tribal authorities are opposed thereto l.
They Say that "tribalism" has thus "been deiiberately fostered through
apartheid" l,and they charge Respondent with an "abdication of the
positive and progressive obligations of the Mandate by its policy of
'laissez-fairewith respect to tribalism" 2.The reason advanced for the
averment ofconflict with the obligations of the Mandate, isthat-
"... tribalisrn ... was one of the reasons mhy 'Native' inhabitants
were 'not yet able to stand by themselves under the strenuous
conditions ofthe modern world' .. .l".
Although not clearly stated, Applicants' contention appears to be that
the mandate system did not permit the foçtering of tribalism but, on the
contrary, imposed a positive duty tocounteract it.
go. In this connection Respondent refers to what has already been
stated with regard to tribalism, and denies that it was implied in the
Mandates, or even contemplated by the authors thereof, that tribal
systems should be abolished and tribalism as such be eliminated in the
mandated territories. Whilst many tribal systems no doubt recognized
customs and permitted practices considered to be in confiict with the
concepts and standards ofmodern civilization, and whilst tribal traditions
and ways of life, and tribal animosities and conflicts contributed to the
factors which retarded the advancement of many of the indigenous
peoples who at the end of the First World War were regarded as "not yet
able to stand by themselves under the strenuous conditions of the modern
world", it is, nevertheless, fallacious to Say, as Applicants do, that
group or tribets3,"was.eone of the reasons why 'Native' inhabitants wereation
'not yet able to stand by themselves .. .'" l.And equally failacious is
Applicants' submission that the hfandate did not permit the fostering of
tnbalism but imposed apositive duty tothe oppositeend.
gr. Respondent has already demonstrated in this regard that the
authors of the Mandate could never have intended to impose a prohi-
bition against differentiation on a group basis, when they themselvfs
contemplated that there would be differentiation on that basis, and, !n
fact, themselves made express provision for such differentiation in
' IV,p. 413.
Zbid.p,p 412-413.
VideOnions, C.T. (Ed.), The ShorterOxfordEnglish Diciionary (195p.2243,
which defines the word "tribalism" as: "[tlhe condition of existing as a separate
tribe or tribes; tribal system, or organization,orrelations." REJOXNDER OF SOUTH AFRICA 239
respect of certain particular matters l. Respondent has also shown that
throughout the lifetime of the League of Nations, it was allowed to follow
a policy by which it took steps to elirninate such tribal customs and
practices as were considered to be in conflict with civilized concepts and
standards, and by which it sought to introduce the indigenous people to
new methods andto lead them from their tradition-bound type of society
to a more modern one, but by which, at the same time, it recognized the
indigenous groups' own social, cultural and political institutions and
adopted a system of "indirect de", in which the said institutions could,
and did, play a meaningful part. Indeed, Respondent was commendedfor
doing so =.
92. Applicants' attitude in this regard appears to be that they do not
deny that fostering of tribalism, in the sense aforestated, was permissible
when the Mandate was conferred and was, in fact, allowed during the
lifetime of the League, but that they contend that it is not permissible
today. Indeed, the phraseology which they use çeems to indicate that
this is what they have in mind. Thus, in the context ofthe charge under
consideration, they speak of "Respondent's abdication of the positive
and firogressiveobligations of the Mandate" 3.And later they say-
"[ilnasrnuch as Respondent's policy is assertedly founded upon an
'evolution towards separate self-realization for Natives in homelands
of their own', and inasmuch as such 'homelands' are to be or~ented
entirely to tribal considerations, Respondent's polic may fairly
be characterized asa headlongadvorïe into ihe~ari +Il.Etaiics added
and footnote omitted.)
Such an attitude, viz., that Respondent's obligations are not static, but
"progressive", and that with the changing of views in the world new
obligations take the place of the old, so that practices and policies which
may onginalIy have been perrnissiblebecomeirnpermissible, is inkeeping
with Applicants' basic proposition that there exists a czlrrentnorm of
a'non-discrimination or non-separation".
If, as would seem to be the case, Applicants' argument relative to
tribalisrnis intended to rest on the basis that there isa legal norm, formu-
lat ed on current standards, which prohibits differentiation on, inter alia,
a group basis, and that Respondent's "hornelands" policy is violative of
this norm because it is based on tribal considerations, i.e., because it
distinguishes between tribal groups, then Reçpondent repeats its denial
of the existence of such a norm and refers to its argument refuting the
proposition that the Mandate must be interpreted as embodying such a
norrn 5.
If, however, in stating that "such 'homelands'areto be oriented entire-
ly to tribal considerations", Applicants intend to convey anything more
than has been stated above, for example, that Respondent's policies
foster tribalism in the sense that they seek to bind the Native people io
uncivilized custorns or to outmoded traditions which hamper thetr
advancement, then Respondent denies such allegaiion and refers to what
Vide sec.13,paras. 8-11supva.
11,pp. 417-418andsec. E, Chap. V,supva.
IV, p. 412.(Italics added.)
Ibid.,p. 413.
' Vide sec.R, supra. SOUTH WEST AFRICA
240
has already been stated in this regard l.Applicants might mean to convey
that inasmuch as they advocatethe attempted creation of one integrated
nation in South West Africa, as being in fact the bcst method to promote
well-being and progress to the utrnost, distinctions between tribes and
ethnic groups are for that reason to be eradicated. Reçpondent has,
however, slready indicated the overwhelrning advantages which separate
development, in its view, ha5 over attempted integration 2, and the
importance of giving due recognition iii this regard to the different
ethnic identities, cultural heritages, and aspirations of the indige~ious
peoples of South West Africa *.
93. In concluding this aspect of their case Applicants give what they
term "an exposition of economic apartheid" by quoting a single passage
from one of the lectures of Prof. de Iciewiet published under the title
TheAnatomy of SouthAfrican Misery. In this passage Prof. de Kiewiet,
whom Applicants describe as an autliority with unquestioned first-hand
knowledge, makes the cornplaint that by "trying to herd the native popu-
lation back into separate economic and political areas" Respondcnt is
"in effect allying itself with the primitive and backward components of
native life, with those customs and practices which are the first cause of
poverty and stagnation" 3. Respondent's answer to this is that, far from
it being an "exposition of economic afiartheid", the said passage, as is
the case with the larger part ofthe lecture from which it is extracted, is
nothing more than an emotional expression of views not only devoid of
objective appraisal, but showing a lack of understanding of the very
subject on which the authoris held out by Appiicants to be an "authority".
Ithasalready been indicated that Prof. de Kiewiet'scriticism of apari-
heid in both the political and the economic aspectsstems Iargely from a
wrong basic premise, namely that-
". ,. apartheidis actually a system in which the power of the state
is used to maintain the economic and political supremacy of the
white cornmunity over a population of approximately ten million
Africans, Indians and coloured men 5".
Equally wrong is this "authority" when he says that Respondent is
"in effect allying itself with the primitive and backward comporientç of
native life, with those custorns and practices which are the first cause of
poverty and stagnation" 3. Respondent has in this regard already ex-
plained the manner in which, and the extent to which, tribalism plays a
role in its policy of separate development.
Prof. de Kiewiet does not Say what are the "backward components of
native life"."customs", and "practices" to which he refers. But, perhaps
there isno need to enquire as to what he had in mind, inasmuch aç he
has clearly indicated that he can çee no good whatsoever in tnbal
afîïiiationsor, indeed, in African traditions, cultures or customs. Thus,
in another lecture, included in the aforementioned publication, he said:
"The whole myth of a separate native culture collapses when it is
recognised that, for the African, progress and emancipation depend
l Videsec.E, Chap. V,supra.
Videsec.E. supra.
' IV. p. 413.
DeidKiewiet,C.0W., The.Anatomy of South.I/ricanilfisery (1956p. 49. KEJOINDER OF SOUTH AFRICA *4I
upon an escape from the tribe and a deeper entry into the life of the
West. At its best and strongest,native leadership aspires to abandon
the past and seek a future in the western world. Its goals areeduca-
tion, opportunity and advancement in the environment created by
European enterprise. In far-off East Africa the Mau Mau tragedy
sho~vsthat the African has nothing to reçuscitate in protest against
the white man evcept tribalism, no tradition to invoke higher or
more dignified than the cruel sanctions of witchcraft and barbarism.
On the face of the earth there are few non-western peoples who
depend more than the African upon the west for everything that
can be called advancement and progress l."
94. It is difficult to understand how Applicants can in this regard rely
upon Prof. de Kiewiet, whenhis viewsas to tribal institutions and African
cultures and traditions are diametrically opposed to the views ex-
pressed on this subject by leaders of the governments of the Applicant
States =,to the policieswhich in Iact are applied in the Applicant States 2,
and to the declarations and resolutions in which Applicants have joined
with other African countries regarding a revival of African cultures and
traditions 3.
-. j
1. Applicants'Allegations regardingEconomic Conditions F- 1
in DependentTemtones 1 . fl
7a+
95. Applicants, whilst noting that this honourable Court has held that
Respondent is not obliged to conclude a Trusteeship Agreement with
respect to the Territory, and that Respondent has refused to do so,
allege that policies pursued by governments administering trust terri-
tories, and standards enunciated by United Nations organs in regard
thereto,
".. .are relevant indications of current noms in respect of the pro-
motion of the well-being and social progress of inhabitants of de-
pendent Territories +".
On the basis of the alleged selevance of such policies and standards,
Applicants include in their treatment of the economic aspect what they
term ".. .a sumrnary of policies and practices in Trusteeship Territories
involving situations analogous to those in South West Africa" Ac-
cording to Applicants this summary, wliich is contained in Annex 6 (1)
to the Reply 6,
"... demonstrates the generally nccepted objective of maximum
effort on thepart of the Administering Authority to integrate inhab-
itants into the economv of the Territory as a whoEe, on an equitable
and progressive basis 5".(TtaLicsadded.)
96. The said summary is divided into three numbered paragraphs.
In the first paragraph Applicants set out declarations and recommenda-
tions made by organs of the United Nations with respect to general aims
1 13eKiewiet,C. W., The Analomy ofSouthAfrican llliser(1956)p.p.54-55.
Vide sec.E, Chap.V. supra.
' IIIpp. 375-382.
' IV,p. 413.
Tbid., p414.
IV,pp. 426-430.242 SOUTHWESTAFRICA
concerning participation by indigenous irihabitants of dependent terri-
tories in tlie economic life of such territories. The second paragraph
contains adverse comment by Applicants on certain aspects of Re-
spondent's economic policy in South West Africa, whilst the third deals
with economic policies and practices in certain Non-Self-Governing
Territones, presumably with a view to showing that such policies and
practices are in conformity with the aims expressed by United Nations
organs, asreferred to in the first paragraph of the çumrnary.
In the succeeding paragraphs Respondent deals with the contents of
Applicants' summary, but xviiifor convenience, not follow the sequence
of Applicants' numbered paragraphs. Respondent wili first deal with the
subject-matter ofparagraph (1)ofthe summary; then with the degations
in paragraph (3);and, finally, with paragraph (2).
97. It willbe observed that althou h Applicants purport to rely on the
subject-matter contained in Annex i?(1) as proof of aiieged "standards
enunciated by United Nations organs" and as indicative of "current
noms in respect of the promotion of the weii-being and socialprogress of
inhabitants of dependent Territories" ',paragraph (1) of the said Annex
contains no declarations by United Nations organs (or by anybody, for
that matter) which can in any way be regarded as objective"standards",
or criteria. The various declarations and views recorded in the said para-
graph of the summary arnount, in Respondent's submission, to no more
than a statement of broad aims and objectives to be pursued in the
economic development of Non-Self-Governing Territories. Save for a
statement of the broad principle that the indigenous inhabitants of such
temtories should be aiiowed and encouraged to participate in the econo-
mic lifeof the territories, andSavefor mentioning certain specificsteps in-
tended to achieve that end in particular territories-such as, e.g., the
making of grants and loans, the expansion of existing systems of credit
facilities, the encouragement of technical training, the raising of stand-
ards of living, increasing minimum wage scales, etc.-the said paragraph
contains no evidence of a prescription of general standards or methods
to be applied in pursuing the aforesaid broad objectives and aims. Tndeed,
it is significant that in the very report of the Committee on Information
reLiedon by Applicants, the Committee noted that-
"[c]ircumstances differ greatIy in differentTerritones according to
their degree of evolution and according to the extent and value of
their natural resources =",
and stated,'inth reference to Chapter XI of the UnitedaNations Charter,
that development of Kon-Self-Governing Territories shouid proceed
"... according to the particular circumstances of each territory and its
peoples and their varying stages of advancement" 3.It is clear, therefore,
that while the Committee forrnulated general economic objectives to be
pursued in the Non-Self-Governing Territories, it also realized that, in
pursuing such objectives, regard rnust be had to the different circum-
stancesexisting in, and to the problems peculiar to,the various territories.
Subject to the qualification recognized by the Committee, Respondent
is in agreement with the Committee regarding the "fundamental aim of
IV,p. 413,
G.A .O.R., Ninth Scss.Suppl. No. 18(A/z7zg),p. 15.
Ibid.p. 16. HEJOINDER OF SOUTH AFRICA 243
economic policy" l, and states in this regard that it has always been
Respondent's aim, in the words of the Co~nrnittee,to-
". ..develop .. .[the Territory]. ..in the interest ofallsectors ofthe
population, to raise the standard of living by increasing individual
real purchasing power, and to increase the totd wealth of. .. [the
TerritoryJ ... inorder to make possible a higher standard of social
services and administration l".
98. Paragraph (3) of the aforementioned summary contains, for the
larger part, particularç of a variety of steps taken in various territories for
the economic advancement oftheir indigenous inhabitants. These particu-
lars furnish no evidence of the recognition, or application, of any objective
norrns or standards. but rnerely of particular practical steps taken to
improve the condition of the indigenous inhabitants of the territories
concerned. Respondent does not propose to deal with any of these steps:
the fact that they were apparently considered advisable in the circum-
stances pertaining inthe said territories, does not seem to Respondent to
have any important besring on issues in this case. Applicants have made
no attempt to show that conditions and problerns in such territories are,
in so far as is relevant to the particular steps, the same as in SouthWest
Africa, or even that, in that context, they can truly speak of "situations
analogouç to those in South IVest hfrica" j.
The remainder of the said paragraph contains allegations to the effect
that "[tlhere is no hlandated Territory or former Mandated Territory,
other than 'South West Africa, in which land is divided along 'racial'
lines" '; that "[sluch stark dissociation of groups from centres of modern
economic development wo~~ldbe illegal in any dependent territory" ',
and that ". ..geographical segregation is not allowed" 4,
It is not clear from the above allegations whether Applicants' conten-
tion in the present context is that geographical segregation is per se im-
permissible, or that such segregation is impermissible when it has the ef-
fect of çeparating, to their detriment, certain sections of the comrnunity
from "centres of modern economic developrnent". If the first, the con-
tention would involve the application of Applicants' so-called legaInorm
of "non-discrimination or non-separation", in regard to which Re-
spondent refers to what it has said elsewhere in demonstrating that
no such norm is embodied in Article 2 of the Mandate. or is othenvise
binding on Respondent 5. If, however, Applicants' contention is that
segregation is irnpermissible if it has the detrimental consequences afore-
stated, then it appears to link up with what is said in paragraph (2) of
Applicants' summary, with which Respondent deaIs in the succeeding
parag~aphs.
First, however, Respondent may point out again that in weighin
advantages and disadvantages of separation against those of atternpte 8
integration, the economic sphere cannot be considered in isoIation from
the political and social spheres. Consequently, the observations made
earlier in this Rejoinder6 regarding unsettled conditions, hostilities,
Ibid.,pp.428-430.
Ibid., p414 and vide also para. 95,supva.
' IV, p.428.
' Vide sec.B. supra.
Vide secs.E and F, supra.44 SOUTH WEST AFRICA
refugee problerns, strained relations, etc., in somc of the very territories
referred to asexamples by Applicants in paragrnph (3) of their summary,
are not without sipificance in the present contest.
99. Applicants' first allegation in paragraph (2) of their sumrnary
reads as follows:
"The legaliy enforced separation of the peoples of South \fTest
Africa into a predominately (sic) African 'labour' area in the Korth
and a predominately 'European' industrial and urban area in the
Police Zone exacerbates the ~lf between 'Native' well-being and
the benefits ofthe modern economy, as wellas contributing to ineffi-
cient allocation of economic resources to the detriment of the people
;isa whole l."
The above allegation gives a misleading picture of the situation in the
Territory. This will be apparent from various parts of Respondent's
answer to Applicants' treatment of "The Economic Aspect", and need,
thercfore, not be demonstrated in any detail in dealing with their Annes
6 (1) and, more particularly, with the paragraph thereof now under
consideration. Respondent merely points briefly to the following:
(i) A completely faIse impression is created hy describing the northern
tcrritories merely as a " 'labour' area", without any mention of
farming or other activities in, and the development potential of,
these territories;
(ii) no mention is made of the reasons-historical, social and econo-
mic 2-\vhich underlie the fact that the role of the northern inhabit-
ants in the modern economy has thus far been Iimited largely
to one of supplying labour; the impressioti iç created that this
situation is the fault of Kespondent, Le., the consequence of
"Iegally enforced separation", nlhilstitis a factthat similnr si-
tuations are common in other countrics in Africa where a modern
economy hns comparatively recently been introduced to an in-
digenous population with a traditional subsistence economy 3;
(iii) the impression is created that the inhabitants of the nortliern
areas are being left to their own resources, and that by design
they are destined to be labourers in the modem economy for al1
tirne, and no mention is made of progress already made in those
areas, nor of development projects accepted for such areas and in
sorne respects already in the course of iml-ilcmentation 4;
(iv) in referring to the so-cdled "inefficient allocation of ecoiiomic
resources", nothing is said of relevant liistorical circurnstances
pertaining to occupation of land; nor of climatic and other factors
wliich affect the valueand agricultural potential of land 5;nor of the
systern of development of the Territory which, in Respondent's
submission, was the most realistic to adopt in al1the circurnstances 6;
nor of future developments proposed for the benefit of the Native
inhabitants ofthe Territory +.
= IV.p. 427.
2 Vide.e.g., para35,supra.
3 Vide para.17,supra.
4 Vide IV,pp. 202-211.
"II, pp.304-306 and videalso Chap. III, paras18-21,ittfra.
6 Ibid., pp409-414; IIIpp. 4-6and Chap. III .aras.15 and 23,infra. REJOINDER OF SOUTH AFKICA 245
roo. The rnisleading impression crested by Applicants' aforementioned
allegation is aggravated by the "evidence" which Applicants quote
in support thereof. The said quotation does not refer to South West
Africa, but to certain other territories. The quotation, taken from a
report of the Economic Commission for Africa, reads as follows:
" ... The setting aside of land for members of diflerent racial groups
has alrnost invariably led to overcrowding and exhaustion of much
of the land set aside for Africans and under-utilization of other
areas. ..In brief, the division of the economy intoarbitrary African
and non-African sectors rather than treating the economy as one
whole, has had and cannot but have deleterious consequences. Until
land allocation is non-racial and al1the other aspects of agriculture
are seen as non-racial problems the process of economic development
must remain heavily and artificially burdened laJJ
The Commission gave threc reasons for its finding, viz.:
(i) "the settiiig nside of land for members of differentracial groups
kas almost invariably led to overcrouding and exhaustion of
much of the land set aside for Africans and under-utilization
of other areas;
(ii) unequal agricultural services and restrictions on the growing of
specific crops have retarded production;
(iii) rigid marketing controls and the discriminatory pricing system
of agriculturalcommoditieshave similarly had atlverse effects =''.
None of these reasons are vnlid in the case of South West Africa, which
was not included in the Commission's study. There are no discriminatory
marketing controls, no price systems or restrictions on the groiiing of
crops, and there is no question of tlie northern territories in South
IVest Africa (Le., the areas here in issue) being overcrowded or exhausted.
Furthemore, it cannot be said that the economy of the Territory has
been divided into "arbitrary" Native and non-Native sectors. In this
regard Respondent refers to what is said elsewhere about land occupation
at the inception of the Titandate3; the reservation of land for Native
occupation and the protection of the Natives' rights to such land 4;the
traditional subsistence sector in the northern aceas, and Respondent's
method of developmcnt of the Territory by first concentrating on the
expansion of the existing modern money economyin the soiithern portion
of the country 5.
101. Applicants also say that the above-mentioned Commission-
". ..found thrit separation of heavy industry from the Afrjcan re-
serves has 'turned these rireris gencrally into economically inactive
centres-deriuded of the prime of their manhood, and incapable of
attracting private Europcaii capital' 6".
Wliatever the position m:iy be in the countries studied by the Commis-
sion, Keçpondent says that the above statement has little relation to the
l IV, p.427.
U.N. BOE.E/CN. 141132, Rev. r,Economic and Social Consequeticof Racial
Discriminatory Practices (1363)~p. 38.
II. pp406-407 and 426.
III, pp238-251 and Chap. III ,aras. 15-16 and03, éntra.
II, pp 409-41.and para.16, supra, and Chap. III,paras.15-16 and23, infra.
IV,pp. 427-1128. SOUTH WEST AFRICA
246
realities of the situation in South West ilfrica. There is no question of
the Native reserves having been "turned" into "economically inactive
centres". Any suggestion that this is so fails to take account of the con-
dition and level of development of the Native inhabitants of the Territory
at the inception of the Mandate, and, more particularly, of their traditio-
naI subsistence methods and their capacity for development and change.
Such a suggestion loses sight, furthermore, of the fact that the develop-
ment and expansion of a modem money economy in the southern portion
of the country have in the past had a beneficial effect onthe economy of
the Native areas, and that they will do so in future in progressively
greater measure.
Kespondent understands the allegation regarding reserves being
"denuded of the prime of their manhood" to be a reference to the systern
of migratorylabour, and in this connection itrefers to whatis said above l.
As regards the allegation that reserves are "incapable of attracting
private European capital", Respondent refers to what it has said else-
where in connection with protecting Native interests in land =.
102. With reference to the report of the Commission, Applicants also
aliege that-
". . .there is economic wastage in duplicating houses, since tempo-
rary accommodations must be provided for migrant workers who
might otherwise be living ~4th their families in their own homes 3".
Applicants have not attempted to show that there is, in fact, such a
"wastage" as referred to by them. The position regarding the accommo-
dation of migrant workers is,briefly, thata large proportion of them are
housed in hostels, which arepermanent structures, andthere is no question
of providing "temporary accommodations", or of "duplicating houses",
when new migrants arrive in the Police Zone to take the places of
those who have completed their term of employment. Workers not housed
in such hostels (e.g., those on farms or in domestic service) occupy houses,
or rooms, provided by their employers, and here, too, there is no question
of providing "temporary accommodations". Applicants' allegation of
"wastage" is, therefore, based on a misconception of the position regard-
ing the accommodation of migrant workers in the Police Zone. Respond-
ent says, furthermore, that the question of housing Native workers from
the northern areas with their families in the Police Zone, whether on a
temporary or permanent basis, involves much more than a mere question
of economics. Respondent refers to what has already been said in this
regard 4.
103. Applicants' final aliegation in paragraph (3) of the summary is
that-
"... the primary evil of territorial apartheid, such asthat proposed
by the Odendaal Commission, and endorsed in principleby Respond-
ent, is maintenance of a bare subsistence economy among the
'Natives' outside the Police Zone, and prevalence in the reserves of
frustration 3",
1 Vide paras. 15et seq., supra.
2II, pp. 426-427;III, pp. 245-25and vide Chrip. III, paras. 2-13, infra.
3IV, p.428.
4 Vide paras.rg and 36-39, supra. REJOINDER OF SOUTH AFRICA 247
and they then quote a passage from a report of the Committee on Infor-
mation in which it is said, interdia, that-
"... material benefits to the advantage of only a limited group of
peoples always breed discontent. If the advantage is to be foundonly
outside the community concerned, such discontent willbe bitter and
justifie'".
Respondent emphatically deniesthat "maintenance of a bare subsist-
ence economy among the 'NativesJoutside the Police Zone" forms any
part of the policy of separate development or of "temtorial a$artlteid,
such as that proposed by the OdendaaI Commission". Zthas never been
Respondent's policy to "maintain" a bare subsistence economy in the
northern territories. Nor do the proposals made by the Odendaal Com-
mission involve the "maintenance" of such an economy as a matter of
policy, as a reference to such proposals will irnmediately reveal.
No proof is given by Applicants of the alleged "prevalence in the re-
serves of frustration", nor is the nature ofthe said "frustration" stated.
Ttwould seem, however, from what issaid by Applicants, and from what
isstated in the passage quoted fromthe report of the Committee on Infor-
mation, that Applicants are probably refernng to "frustration" which
allegedly arises from, or islinked with, the alleged "maintenance of a bare
subsistence economy among the 'Natives' outside the Police Zone".
Respondent has already denied that it is part of its policy to maintain
such an economy. It istrue, of course, that a subsistence economy isstill
practised by many Natives in the northern areas, but it is equaIly true
that it is Respondent'sairn to irnprove and develop their territories, and
to make it possiblefor them to progress to higher standards ofliving than
are at present enjoyed by them.
IV,p. 428, CWAPTER III
THE RESERVES
A. Introductory
I. In this Chapter Respondent deals with the matters discussed by
Applicants in Chapter IV. R.3.c.z. (C)of the Reply, headed "The Re-
serves" '.The subject-matter with which the said part of the Reply is
concerned can conveniently be grouped under the following heads, and
will hereinafter be dealt with in that order, viz.,
(a) development of the nortliern reserves outside the Police Zone;
(b) allocation and alienation of land to Europeans, and the aileged
gradua1extension of the PoliceZone;
(c) measures taken for the relief of persons affected by drought ;
(d) social welfare measures which are aileged to be discriminatory.
B. Development of the Northern Resetves outside the Police Zone
2. Applicants in the nfemoriaIsmade a cornplaint to the effect that the
Native population in the northern areas, outside the Police Zone, is
"far removed frorn the principal areas of modem economic development
and activity", and that the activities ofthe saidpopulation "do not make
it part of the modem monetary economy" 2.
In reply thereto, Respondent, while admitting thatthat \vas the factual
position 3, submitted that, in the circumstances which obtained, the
situation could have been altered in one of two ways, namely either by
encouraging or forcing the people to leave their lands and flock to the
Police Zone, or, alternatively, by ü process of rapid development of the
northern territories with the aid of European initiative and capital '.
Respondent fnrttier explained why both these alternatives were im-
practicnl and inadvisable, not only in so far asthe economy of the Terri-
tory as a whole was concerned, but also, and particularly, in s~ far as the
interests of the Natives themselves were concerned. Applicants do not
contest the reasons advanced by Respondent for not following eithe~ of
the aforementioned courses, but they submit that "Respondent's optio?~
were not in fact limited to such extremes" 5, inasmuch as there WU, in
their submission, a third course which could, and should, have been
adopted by Respondent. They state in this regard :
"Indeed, a sound sociological and economicapproach would have
been to develop the northern territories with outside capital, slowly
at first, but with increasing speed as capital an" surplus resources
werecreated within the reserves themselves
l IV, PP.4r4-417.
= 1,p. 112.
Subject. ofcourse, to their participaaswage-earners inthe modern economy.
+ III, p22.
IV,p. 4'4. REJOINDER OF SOUTH AFRICA 249
Although the approach suggeçted by Applicants may appear attractive
in theory, it stands divorcedfrom the realitieç othe situation, and ignores
the basic considerations involved. Their suggestion that the course
advocated by tllem was feasible from the outçet, and would, if adopted
from the inception of the Mandate, already have brought about a radical
change in the economic position in the northem territories, shows a
complete Iack of appreciation on their part of the economic implications
and of the adaptability of the Natives concerned to modern economic
methods.
3. There is, in the firçt place, the question of funds required for a
project such as that suggested by Applicants. As has already been men-
tioned l,at the inception of the Mandate, and for many years thereafter,
the concept of financial aid by international agencies or others to under-
deveioped or non-viable States was unknown, Of course, as Icespondent
hasstated 2,it could have allowed "outside capital" to be introduced in-
tothe northem reserves by pemitting European entrepreneurs to exploit
the resources of the said areas; but Applicants themçelves describe such
a course, which was, for the reasons given by Respondent, not followed as
one of the two "extremes" to which Respondent was not limited in its
options. Consequently, the development of the reserves had to be financed
out of the resources of the Territory and the contribution which South
Africa itself could make towards that end. In this regard it has already
been explained that in the circumstances of the Territory, and with
limited funds at its disposal, especially in the earlier years, Respondent
was obliged to adopt a poficy by which it was sought first to concentrate
upon and encourage a rapid development of productive enterpriçes in the
modern economy sector as growth points for further development of the
Territory as a whole. In this process the modern econorny sector could,
and did in fact, provide funds for tlie administration and development of
the Territory, as well as increased opportunitieç of ernploymcnt also for
the inhabitants of the northerri territories.And opportunities of employ-
ment for them not orily brought about an additional income in the form
of a regular flow of cash earnings into the northern reserves, but also
contributed generaiiy towards progress iii the çaid reserves, in that the
workers gained new skills and experience and became adapted to modem
methods which corild be introdiiced into their traditional society. In this
regard Respondent draws attention to the following remarks in a publica-
tion of the International Labour Organisation:
"An opportunity for productive work is not rnereIy a means to a
higher income. It is a means to çelf-respect, to the development of
human potentialities and to a sense of participation in common
purposes of society 4."
And the followjng observations are made in the çaid publication with
regard to the role of opportunities of employment in economic develop-
ment :
"The purpose of economic development is to raise levels of living,
and the main purpose of insisting that employment objectivesshould
II,p.4IO.
Ibid.p. 411.
Ibid.pp. 409-414; 111,pp. 4-103and uide3150Chap. II, paras. 16-17s,upra.
' InternationalLabour OfFrceE~nployinertl Objectives in Econowtic Devrlopmeni
(1961)p~.iii. SOUTH WEST AFRICA
be given weight in the choice of alternative paths of economic
development is that this is the surest, if not the only, way of mahg
certain that the improvements in levels of living that corneabout as
economic development proceeds will be widely shared. Unemploy-
ment and underemployment are major causes of poverty, and the
objective of providing more, and more productive, employment is
the major element in the broader objective ofprornoting higher levels
ofliving l."
In another publication of the said organization it was stated, with
referenceto Africanemployees,
"[iln particular, the extension of wage-earning employment means
for an ever-increasing number of Africans a new way of lifein the
wideçt possiblesense :becauseof the fact that centres of employment
and previously existing concentrations of population often do not
coincide, wage-earning employment generaliy begins with a change
of residence and involves not only the learning of new skilis and
habituation to work routine, but also adaptation to the multifariouç
aspects of a new forrnof socialorganisation . ..2".
Although the Natives in the northern reserves would, at least in the
earlier stages, participate in the modern economy of the Territory only
as wage-eamers, they would later, with progress generalty in education
and in their understanding of modern systems and methods, become
receptive to changes in their traditionai ways of life which wodd even-
tually lead to the establishment and development of modern economic
enterprises in their ownareas.
4, The course advocated by Applicants would not have permitted of
economic development on the lines aforestated. It would of necessity
have entailed that Respondent shodd, with the iimited funds then at
its disposal, have concentrated on developing both the çouthem sector
(the modern economysector) and the northern territories (the traditional
sector) at the same time. Inevitably sucha policy wouldhave resulted in
a retardation of progress in the modem economysector, with a resultant
Ioss of income and, therefore, of funds available for the developrnent of
the Territory, as well as in a curtailment of employment opportunities
offeredaIsoto the inhabitants of the northern reserves. At the same time
littIe benefit would, at least in the earlier years, have resulted from the
establishment of new enterprises in the traditional northern sector, if
onIy for the reasons mentioned in the succeeding paragraphs.
5. Applicants, in suggesting that, with the introduction of "outside
capital", the northern territories could rapidly have been transformed
from a traditional subsistence economy into a modem economy, show an
unawareness of the importance of the human factor in economicdevelop
ment. In this regardit hasbeenstated inaUnited Hationspublicationthat-
". .. as most govemments acknowledge, development is only
possiblewith the active CO-operationof the population. This, in turn,
presupposes their desire for change and their confidence that the
results of change will benefit them; but such understanding is again
inhibited by poverty and suspicion and a general lack of awareness.
l International Labour Office, BmpZoymcnl Objectives Ecofiomic Developmcnf
(196Idem, Afvicaa LabourSuvvey (rg58)p,. 15, REJOINDER OF SOUTH AFRICA
25I
A transformation of man himself will initiate and ensure the perma-
nency of the advance. To desctibe economic development as a
'human' problem may be somewhat too general; but it is probably
the most fundamental way of stating the problem l."
Professor Colin Clark has briefly stated the sameview as follows: "The
principalfactors in economic growth are not physical but human 2."This
is soparticularly in the case of tradition-bound people, such as the Native
inhabitants of the northern territones, whose agricultural and pastoral
practices are hallowed by age-old observance. Thus it has been said with
regard to the modernization of under-developed countries generaliy
that-
"... no division of the problem into parts permits escape from the
fundamental proposition that the paramount requirement for the
modernization of any societp is that the people themselves must
change. Our understanding of the process of modernization in the
underdeveloped countries, and in turn our understanding of the
policy problems involved, must be informed by awareness of the
ferment of individual thoughts and emotions at the core of any
drastic change in a society. Here, in what might be cailed the realm
of psychological change, the requirements for modernization give
rise to tensions and resistance, to visible and invisible conflicts
which are often the hardest for the outside world to cornprehend
and accept 3."
That modernization must necesçarily he a lengthy process, is empha-
çized in the followingpassage, also from the aforementioned publication:
"American and free-world policies can marginally affect the Pace
of transition; but basicaily that pace dependç on changes in the
supply of resources and in the human attitudes, political institutions,
and socialstructure which each society must generate. It followsthat
any effective policy toward the underdeveloped countnes must have
a realistically long working horizon. It must be marked by apatience
and persistence which havenot always been its trademark 4."
6. That the problems which beset modernization of a traditional
economy are common to under-developed countries, especiallyin Africa,
appears from a recent United Nations Study undertaken by the ECO-
nomic Commission for Africa. It !vas observed in this study that in the
greater part of Africa-
". .. the developrnent of the modern sectors is still marginal and
society on the whole is still tradition bound, 'old blocks and resis-
tances' to change still prevail and dominate individual decisions,
traditional attitudes determine and limit freedomof action 5".
' A former President of the World Bank, E. R. Black, has described the
-
general position on the African Continent as follows:
l U.N. Doc. E/CS. 14/67. EcononzicBulletin jor Africa, V1,h'o. I(Jan.1961).
P. 87.
ClarkC ,., Gvowthmanship (1961)p. 51.
Gowthiland UnitedStatePBlsolicy (rg61). p.23.ds.), The EmcrgangNotions: Their
Ibid.. p.142.
' U.N. DOE.E/CN. 141171, Economic BulLet~nfor Ajrica, Vol. II. XO. 2 (June
r962)p.. 7.252 SOUTH WEST AFRICA
"... nowhere in the world does the bulk of the population play so
restricted a roll: in econornic life and development as it does in
Afriça. The continent is uniquely dependent on foreign capital and
foreign initiativel."
After stating that "[tlhere is no rnystery about this lag", he gives the
foliowing reasons for this state of affairs:
HDeve~opment initiative in Africa haç always corne, and stiii
coma, almost e?rclusivelyfrom a smali number of European, Tndian
and Levantine entrepreneurs . .. Africa's growth has been limited
by the Pace at which the bulk of the population is wiliing and able to
leave its traditional subsistence economy and participate more
actively in the modern, money economy. A shift from subsistence
living to a life of saving and investing, of course, reqiiireç funda-
mental changes and popular attitudes towards life and work l."
7. This phenornenon is not limited to the new emerging African States,
biit is cornmon also in other African States which have been independent
for a long tirne. Indeed, the two Applicant States serve as good examples
of a traditional subsistence economy being rooted in the indigenous
population. Thus it has been stated of conditions in Liberia:
"Liberia hasalways been an agricultural country and her climate is
ideally suited for the cultivation of foodstuffs for home consumption
and the production of cash crops for sale abroâd. But the traditional
methods used by the majority of the tribal population are so prirni-
tive that our soil yields only a very small fraction of what it could
produce. ..*"
The estent to which a traditional subsistence economp is stili practised
in Liberia Ii<wbeen summed up as follows:
"The basic economy of most of the people is subsistence agricul-
ture. The vast bulk of the population depending on farming of a
shifting fields type'."
The position is vesf much the sarne in Ethiopia, of which it has been
said that "[ojver go percent of the country's labor force derives itç
1iveIihood fronl subsistence agriculture of various kinds" 4.
In discussing a remedy for this state of affairs, C. Jesman says:
"To raise the productivity of Ethiopian agriculture, for example,
something other than chernical fertilisers, foreign advisers and stud
animals . ..is needed. Al1this kas been tried in Ethiopia in the past
and has failed. The Ethiopian farmer, in order to become redy
interested in the yield of hiç land,must see the reason for it
S. Professors Buchanan and Ellis, who share the view of the afore-
mentioned author that administrative action and aid from outside, or,
Black ,. R.,"How the World Bank ishelping to develop Africa", Oplima, Vol
VIII, No. 3 (Sep. 1958)pp. 105-112, atp. 107.
Simpson, C. L.,The Memoirs of C. L. Sinipson: The Symbol of Liberia(rg61).
p. 247.
Sotornon, M. D., "Education in Liberia",Science Education, Vol.43, No. 3
(April 195g) ,p 221-227, atp. 222.
+ Department ofthe Army, U.S. Army Arca Fiandbook /orElhieia, 2nd ed..
Pamphlet No. 550-28 (June 19641,p.225.
Jesman. C.. The Ethiopiaiz Paradox(rg63),p.4, REJOINDER OF SOUTH AFRICA 253
as Applicants put it, the introduction of "outside capital", cannot solve
the problem, have stated the position thus:
"... merely providing more capital equipment from abroad or
demonstrating superior techniques of production will not create an
. environment from which innovations are bound to appear, or in
which the entrepreneurid spirit and point of view are certain to
flourish. If these couId be assured, interna1 productive capital
formation would almost certainly foliow. Only in a vcry limited and
comparatively triflingsense can economic development be 'im-
ported'. In nearly al1its important essentials it must be generated
from within l."
And a United Nations report has in this regard pointed out that-
"[tlhe human qualities that promote economic growth are vanously
identiiled .. .put] Governments cannot create such qualities by
legislative fiat or budgetary appropriation. There are no operative
branches of government in sociology and pyschology disposing of
funds to cultivate directly the desired qualities=."
9. With regard to the utilization of outside capital in carrying out
development programmes in territories in Africa, Professor 1. M. D.
Little has said :
"Few African countries could have usefully absorbed in reccnt
years more capital than lias been available to them: indeed, much
ofthe capital expenditure made has been of little benefit3."
Reporting on the foreign operations of the United States of Arnerica
in Africa, Allen J. Ellender, a member of the United States Senate, stated
as follows with regard to financial aid programmes:
"It seems to me that by now it should be fully understood that
'dollar diplomacy' is not the solution to the world's ilis. lie are told
that, in addition to the development of economic and human
resources in Africa, our aid must also provide a 'physical measure
of achievement' to give a sense of direction and accomplishment to
our program. Our past experience has proven this concept of aid
to be falIacious because it is so wasteful and only invites corrup-
tion 4."
Indeed, another authority, Professor S. H. Frankel, has expressed the
view that the introduction of "outside capital" can in certain cases do
more harm than good to economic progress in under-developed countries.
He makes the point asfoliowç:
"The problems of the borrowers are not solved by the receipt of
capital which leads to the adoption of an economic pattern which is
not incorne-creating or is incapable of relatively permanent integra-
tion into the economic structure into which it is imported. Such
injections of capital disrupt the existing but do not rebuild new and
l Buchanan, N. S. and Ellis, H. S.. AeproacheioEconomic Deuelo~menl(1955).
P. 4U.N. DOC.E/C-iT.5/346/Re\r.1, STISOAI42, Report onLhcWorld Social Siluatioiz
(1961) ~. 32.
Little.1.M. D.. Aid to Afric~(~gGq),p. 4.
+ United States of America: 88th Congres, 1stSession-Senate-A Report on
Unilcd States Fo~ign Operations in Africa by Honorable Allen J. Eltender. United.
States Senator from theState of Louisiana(1963),p.13.254 SOUTH WEST rlFRIC.4
continuing patterns of economic behaviour. Such caiital Unports
may incertain casesonly postpone the need formeeting the real prob-
lem of the economy as long as the capital lasts l."
10. It is, however, not to be understood that Respondent adopts the
attitude that it could not, aiid therefore did not, take any steps to educate
and encourage the indigenous peoples of the northern territories to
accept reforms and to adopt modern methods which would lead them to
an understanding of, and to the gradual introduction of, a modern
economy system-a contention which Applicants seem to advance else-
where in the Reply, where they speak of "Respondent's maintenance,
ttp to thepresent,of a subsistence economy in the Reserves" 2.In this
regard Respondent explained in the Counter-Mernorial that its policy
was "to guide the population in the direction of greater productivity by
means of a gradual adaptation of their traditional economic and social
institutions, rather than by means of revolutionary changes". And
Respondent deçcribed what had been done in thiç regard by way of
improvement of livestock; measures for selective breeding of stock;
experimentation in systems of crop rotation; introduction of tested and
selected seeds; veterinary services and, particdarly, the development of
water resources and storage faciiitieç 4.These measures were, of course,
in addition to the assistance and encouragement generally of the educa-
tion of the Xative people.
XI. l'%en Applicants Say:
"Respondent's duty in this regard was one of education and
systematic development. The situation required, and continues to
require, special effort; aii the moreso if, as Respondent asserts, there
existed a so-called 'lack of interest' onthe part of the inhabitants of
the Territory toward mining, land ownership, and other aspects of
the 'strenuous conditions of the modern world' 5",
Respondent's answer is that it has done precisely what Applicants in
the above passage suggest should have been done, but at the same time
Respondent stresses the human factors mentioned above, which made it
inevitable that progressin leading the indjgenous people frorna traditional
subsistence economy to a modern one would be slow.
12. That Respondent counselIed itself wisely in making the reform a
gradua1one instead of attempting to bring about a revolutionary change,
is borne out by the views of others who can speak with authority on the
subject. In this connection it may be stated that a group of eminent
scholars, representing different fields of interest, and having wide ex-
perience in the problems of under-developed countries, recently recom-
mended a very similar approach in a comprehensive study designed to
advise the United States Senate Committee on Foreign Relations in
respect of under-developed parts of the world. As a choice of policy they
recommended-
". .. the gradual modification of the institutions, practices. and
2IV, p.262.. H.,The Ecoizomic Impact081U~idev-deuelûpedSocielies (1953)~p. 76.
III. p.6(para. 6).
+ Ibid., pp6-8.
VV, p.414. REJOlNDER OF SOUTH AFRICA 2.55
structure of the traditional society in the direction of modernization
while retaining some of its traditionai cohesive features l".
And they expressed the viewthat-
". ..if the forms of modernization are adopted more rapidly than
they can be made to function effectively, then traditional values,
institutions, and gratifications willbedestroyed beforemodern substi-
tutes have been developed ...l".
13.With the progress which has already been made by the indigenous
people5 in South West Africa, a stage has now been reached where more
pronounced consideration can be given to their economic development,
and where the rate of progress cm be accelerated. In the words of the
Odendaal Commission,
"[tlhe second phase, namely where the non-White groups have in-
creasingly to be given the opportunity, necessary assistance and
encouragement to find an outlet for their new expenence and capa-
bilities, must in future receive special attention in a programme of
development for South West Africa. On the one hand they must be
afforded protection against the more effective competition of the
White group, and on the other handthey must be given financial
aid and technical assistance both from the local modern economy
and from the Republic of South Africa 2."
The Commission, therefore, felt that-
". ..every effort must be made in the first place to ensure greater
participation of the indigenous non-White groups in animal hus-
bandry, agriculture, forestry and mining 3",
and made extensive recommendations in that regard, particularly in
respect of the northern temtories 4.
Thatit isRespondent's object to give immediate attention to the devel-
opment projects recommended by the Commission, is clear from the pro-
nouncement ofRespondent's decisionrelative to such recommendations 5,
and several of the projects are already under practical consideration
and even in the coiirse of implementation.
C. Land Allocation and the Alienation of Land to Europeans, and the
Alleged Gradua1Extension of the Police Zone
14. One of the cornplaints made in the Mernorials relative to well-
being, social progress and development in agriculture, was that there
had since the inception of the Mandate been excessive extensions of the
Police Zone boundary, so that by the end of 1952the European farm
lands represented 45 per cent. of the total area of the Territory, whereas
Millikaii, hI. F. and RlackmerD. L. BI. (Eds.), The Emcrging h'afaons: Their
Growth and United States Policy (1961). p. 98.
R.P.No.1211964, p. 47.9(para.1437).
3 Ibid.(para. 1438).
4 As to agriculture videR.P. NO. 12/1964, pp.307-311.
As to water suppliesvide pp. 449-455.
As to mining,vide pp. 457-459.
As to industriesvidep. 459.
IV,pp.203 and 207.~56 SOUTH WEST AFRICA
the European population of the Territory constituted less than 12 per
cent. of the total population l.
Respondent, while admitting the factual allegation contained in the
said cornplaint, explained the reasons for the extension of the Police
Zone boundary, aswell as the reasons for encourapng the settlement of
European farmers on available land in the Police Lone 2.
In the Reply Applicants comment as foliows on the explanations given
by Respondent :
"Respondent marshals detailed argument in reply to Applicants'
observation about the allocation and alienation of land to 'Euro-
peans' and the graduai extension of the Police Zone without, hom-
ever, explaining why 'the Mandatory has progressively reduced the
proportion of farm land available for cultivation or pastoral use by
the 'Native' population, while it has progreçsively increased the
proportion of such farm land available to 'Europeans' 3."(Footnotes
omitted.)
In so restating their cornplaint, it seems that -4pplicants have either
misunderstood the explanations given by Respondent, or have simply
disregarded them.
15. MTithregard to the allegation that Respondent had progressively
increased the proportion of farm land available to Europeans, it was
explained in the Counter-Mernorial that for economiç reasons it wns
necessary to develop the agricultural resourccs of the Territory in order
to increase and stabilize income, exports and revenue 4.
The Native inhabitants of the 'Territory, who were unnccustomed to
agricultural practices other than of a traditional subçiçtcnce nature, and
whose generaI level of development was such that they could not provide
the capital,initiative or entrepreneurial skill required for the exploitation
of the agricultural resources of the Territory, could not be relied upon
for the development of such resources on a modern commercial basis.
It was for this reason that Respondent was obliged to look to European
settlers who had the experience, initiative and skill for its land devclop-
ment schemes 5.And it was in the process of such dcvelopment that over
the period 1920 to 1960 a substantial area within the Police Zone, which
had previously been government Iand, or land owned but not used pro-
ductively, was made available for settlement by European farmers 'j.
There is,however, no justification for the conclusion drawn by Ap-
plicants, namely that by allocating such land for occupation by Euro-
pean famers Respondent "progressively reduced the proportion of farm
land available forcultivation or pastoral use by the 'Native' population"
-unless this conclusjon is based on the premise that by right al1land in
the Territory should have been allocated to, or reserved for, the Native
population, and that any grant of land to a European pro tanto reduced
the land available for the Natives, a premise which would. of course.
be absurd.
As Respondent has indicated, although land was allocated [or settle-
'1,p. 175.
Il, pp.409-411 and 111,pp.29-31.
IV, p. 414.
11,p. 411.
Ibid.and III, p. 31.
Ibid.andIII, pp. 28-29. RE JOIKDER OF SOUTH AFRICA 257
ment by European farmers, there was no reduction of the land set aside
or reserved exclusively for the use of the Natives. On the contrary, the
reserves within the Police Zone were graduaily increased by the extension
of the land reserved for the Native population from 998,101 hectares at
the inception of the Mandate to 6,ogz,z45hectares in 1961 2.
16. With regard to the northem territories outside the Police Zone,
substantial increases were also madein the land reserved for the different
groups. In Ovamboland the Katives at the inception of the Mandate
occupied only about one-half of the area which was later proclaimed as
a Native reserve for the Ovambo people 3.
The position is the same in the Okavango. At the inception of the
Nandate only a narrow strip ahng the Okavango River was occupied
by the Native people. A very much larger area of land was proclairned
as a reserve for the Okavango group 4.
In the Kaokoveld tliree small pieces of land, totaUing in aii 418,500
hectares, were orginaliy set aside for occupation by certain tribes of this
region 5.The total area of land reserved for the people of the Kaokoveld
eventuaily exceoded 5,500,ooo hectares 6.
With regard tothe Caprivi, approximately 500,000 hectares of land was
in 1939 added to the area originally occupied by the Caprivians6. In
addition to thc extension of the defined northern reserves, an unnamed
area of 356,433 hectares was set aside in 1952 for Native occupation 7.
It isclear from the above that there has at no time been any reduction
in the extent of land included in the reserves in the northern territories
outside the Police Zone. In this connection Applicants err when they say
that the extension of the Police Zone boundary has reduced the fam land
available for use by the Kative population. Respondent, in explaining
the reasons for cxtending this boundary from time to tirne stated, inter
aEia, that there was no question of encroaching on the northern reserves
inasrnuch as there has always becn a substantial area of uninhabited
land of varying width adjoining the Police Zone which does not form part
of the northern reserves S.
17. Although, as is indicated above, Applicants' conclusions under
consideration arc unsound, it would seem that in the present context
they are,without saying so expiicitly, merely repeating a cornplaint made
II, p. I, and III, pp. 240 246, i.e..excluding the RehobothGebief of 1.750,ooo
hectares.
III, pp. 249-251. There is in this respecsrnall difference betwethe figures
given in the Cou~iter-Jlernorial and those reflected in the reportthe Odendaal
Commission (R.P. No. 1211964, p. 71). The figures in the Counter-hfemorialwere
based on the latest revised extents as furnished by the Surveyor-Generaand can
be accepted as correct.
Proc. No. 27 of 1929 in The Laws of South West A~Y~C B929, Vol. VIII, pp.
253-264 and III,p. 250.
Proc. Ko. 72 of 1937 iri The Laws of South West Africa I937. Vol. XVI, pp.
306-312 and III, p. 250.
Vide III, p247.
Ibid.,p. 250.
G.N.No. 193 of 1952 in The Luws of South West Africa1952, Vul. XXXI, pp.
850-852. Videalso III, p. 250. The Odendaal Commission has noir. recommended
that this area he added in part to Ovamboland, and in part to the Okavango
(R.P. Iro.12/1964, pp.83 and 85).
III, p. 30.258 SOUTH WEST AFRICA
elsewherein the Reply, namely that, relative to the differencein numbers
between the Native and European inhabitants, there is a gross dispanty
between the extent of land occupied by Europeans and that reserved
for the Natives l.Thatthey indeed intend to repeat that complaint in the
present context, is evidenced by their further statement that there is
no valid basis for Respondcnt's conclusion that "the provisions that have
been made[relative to the allocation and occupation of land] are not un-
reasonable" 2,and their reference to a com~nentby Professor Wellington
to the effectthat "[w]eseem to have looked after ourselves very weU" 3.
On the understanding that this is in fact the complaint which Appli-
cants intend to make in the present context, Respondent will in the
succeeding paragraphs demonstrate the basic fallacies underlying the
conclusions drawn by Applicants from the fact that, in respect of extent,
there is a disproportion between the areas of land occupied by Europeans
and the areas reserved for the Natives.
18.The first, and perhaps the major, respect inwhich Respondent sub-
mits that the cornparison sought to be drawn by Applicants is faIlacious,
is that they have cornpletely ignored the physical attributes which
circumscribe the potential utilization of the different regions in South
West Africa for agricultural purposes.
As has already been stated +, agricultural operations in South West
Africa are cruciaiiy influenced by climaticconditions, particularly rainfall
and evaporation. Any cornparison between the various agricultural
regions of the Territory is therefore meaningless unless it takes account
of these factors.
For agricultural purposes, the areas reserved to the non-European
groups in the Territory are generally much more favourably endowed by
nature than those occupied by the Europeans. This applieseçpecially to
rainfall. Thus oniy 32.1 per cent. of the Territory receives an average
annual rainfall of more than 400 mm. (16 in.),which can be regarded
as the absolute lower limit for dry-land agriculture in warm-temperate
çummer rainfall regions such as South West Africa Thisarea of approsi-
mately one-third of the Territory lies entirely tothe north-east 6, where
nearly 65 per cent. of al1the inhabitants live, composed of 96 per cent.
non-Europeans and 4 per cent. Europeans. In other words, 70 per cent.
of the total non-European population of South West Africa and only
zo per cent. of the Europeans are to be found in this most favourable
region. On the other hand, only 15 per cent. of that area of the Police
Zone to which the European group is confined (that is,excluding non-
European reserves and diamond concession areas), falls within this
comparatively better region. In other words, 85 per cent. of tlie area to
which the European population is confined, fallswithin the lower rainfall
region.
xg. Aclear indication thatthe non-European areas are largely situated
Vide. e.g., IVpp. 405 and 458.
Ibid., p. 415.
3Ibid. Vide also Applicants' reference atIV,408 of the Keply, to a statement
adequate areas arereservedias the homelands ofthehindigenous groups"."certain in-
' 11,pp. 304-306.
Ibid., p295.
Ibid..map on p. 294. REJOIQDER OF SOUTH AFRICA 259
in the better rainfd regions, is furnished by the following table, which
shows the distribution of European and non-European farming aeas
according tothe average incidence of rainfall:
TABLE^
Area of
Rainfall in non-Eecropean Euraflean
millimetres leserves f~rmingarea
% Y0
Below~oo.. ....... 11.6 8.6
100-200 .......... 17.9 39.2
200-300 .......... II.9 12.3
300-400 .......... 10.6 19.9
-
400-500 ..........
500-600 ..........
Over 600 .......... 3.4
According to the above table, only 20 per cent. of the European farming
area receives an average rainfall of 400 or more millimetres,, which is
the minimum for dry-land agriculture, whereas the corresponding figure
for non-European areas is48per cent.
In this context it may also be rnentioned that the area of land in the
non-European areas receiving an snnual average rainfall exceeding 500
millimetres, which is the lower limit for marginal dry-land farming, is
nearly two-and-a-half times larger than land sirnilarljr placed in the
Euro~ean farmland area =.
20. Attention must be drawn to the more favourable position of the
northern and north-enstern regions of the Territov with-respect to the
seasonal ùistribution. cffcctivencss and vririability of rainfalls, :ind
with respect to evaporation 3.SimiIarly, the said régionsalso enjoy an
advantage with respect to vegetation and water resources '.Indeed, the
only considerable watcr potential in South West Afnca is confined to
these areas, which are exclusively occupied by the non-European popula-
tion groups 5.
Furthermore, the livestock carrying capacity of the northern and
north-eastern regions is the most .favourablein the Territory, being 8 and
less hectares per large stock unit 5,whereas in the regions occupied by
47 per cent. of the European farmers the carrying capacity is extremely
poor, decreasing from north to south progressively from g to 45hectares
per largestock unit 6.
21. From the aforegoing cornparison of the physical attributes of the
different regions ofthe Territory, it is clear thatthe areas reserved forthe
exclusive occupation of the large majority of the Native populat~on are
1 Departmental information.
2 II, map on p. 294. The approximate comparative figures are 53,600square
kilometres asagainstz1.6oosquare kilometres.
Ibid., pp295-298.
' Ibid.p. 302.
3 Ibid., pp. 301-304.
Ibid.. mapon p.305.260 SOUTH WEST AFRICA
far more favourably endowed by nature, and hence offer much greater
potentialities, than the areas to which the European farrning cornmunity
is confined. Indeed, this is confirmed by the fact that at the time of their
first contacts with modern development, the Native groups were already
concentratedlargely in the areas atpresent occupiedby their descendants.
22, Another factor which Applicants leave out of consideration whcn
making their cornparison regarding the allocation of land is the human
factor. This.factor may indeed account for varying levels of individual
performance even where territories are equall gifted by nature. In this
regard an authority on African economic deve Yopment has stated:
"Differences of wealth may be found, however, even when one
country has no noticeable advantages over another. In such cases
the differences are due to other factors, such as the degree of know-
ledge, ski11and energy of the people in using the resources the land
provides l."
This statement is particularly applicable to South West Africa, where
European farrners have succeededin achieving a high level of productivi-
ty and income in the southern areas, which are less favourably endowed,
while the Native inhabitants with their traditional agricultural practiceç
have generaily not progressed beyond a stage of subsistence economy
even in the more favourable regions.
In addition to what bas already been said intliis regard2,Respondent
finds it apposite to refer here to what has been stated by Professor
Richard F. Logan, Professor of Geography at the University of California,
U.S.A., who has made a thorough study of the conditions of the indige-
nous peoples in South West Africa. After comparing conditions in the
Berseba Reserve with those on a European farm immediately adjoining
the reserve, Professor Logan concludes as follows:
"Thus, in short, the European farmer haç succeeded in gaining for
himself and his family and his native employees a far better way of
life than is obtained by the natives in the adjacent reserve, although
the yhysical geography and resources of the two areas are identical.
The difference lies solely in the initiative and themanagerial ability
of the European owner in çontrast to the apathy and inefficiency
which characterizes the South West African native where handling
his own affairs 3."
And, speaking of the Herero in the Waterberg Reserve, Professor Logan
mentions the fact that although the Administration, in its efforts to
control the spread of foot-and-mouth disease, had provided the inhabi-
tants of the reserve with fencing material, they made little effort to erect
the necessary fences. In this regard Professor Logan says:
"yeti at the same time, one could visit ani village on the reserve
atany time, on any day of the week, and findthe total male popu-
lation sitting under their favourite tree,talking, despite the fact that
they repeatedly cornplain that they have not had the time to build
the mangas and corrals. The patience of the European administra-
tors working in such Reserves must be infinite.The Natives are
Batten, T. R., PvoblemofAfvican Develo+ment (1954). Part 1,23.
Vide paras.5-11supra.
Logan,R. F., A Study oConditions iS.W.A. Relaiintothe Indigenoacs Peoples,
Unpublished (1962),p.12. REJOINDER OF SOUTH -4FRICA 261
fullp aware of the need of such devices, and agree whole-heartedly
that they should be constructed; yet they seern unable tostir them-
selves from the shade of the village Council-tree long enough to do
that whicli will Save their herds and greatly increase the prosperity
of the group. Even inore annoying is the fact that they will not
undertake such work for their own betterment unless theyare paid
in cash wages for so doing '."
23. As stated above 2,Rcspondent,in order todevelop the agricultural
resources of tlie Territory onn commercial basis, had to rcly on the capi- ,
tal, initiative and ski11of Europearis and was consequeiitly obliged to
settle European farmers on land in the Police Zone which could be
productively used for the said purpose.
Applicants, in suggesting tliat the altocation of land should have been
proportionate to the numbers of the population groups involved, and
stiould have been based only on the estent of land available, ignore not
only the fact that the different regions of the Territory are not equalIy
endowed with natural resoiirces, but also the significan t differences in
productive utilization thereof by Natives and Europeanç respectively.
Not only do tliey tacitly assume that the physical potentirtlities ofal lhe
land areas are the sarne, but they 3150 appear to assume that the produc-
tive capacities of the various population groups, at their present stage of
development, are the same-an sssumptjon which would, of course, be
absurd. On the other hand, if they do not make the last-mentioned
assumption, and were to contend that, despite the substantial difference
in the productive capacity of the Native and European groups, Respon-
dent should nevertheless have aIlocated the land resources to the said
groups in proportion to their numbers, they would in fact be advocating
that Respondent should deliberately have smothered al1 prospects of
building up and expanding the economy of the Territory.
24. fi $ precisely in the respects aforestated that Professor J. H.
Wellington, to whom Applicants refer in the Reply, errs when he com-
ment~ that "we seem to have iooked after ourselves very well" 3.Sot only
does Professor 1S'ellington fail to take into account the economic con-
siderations mentioned above, but the conclusion which he drawç is based
largely on the following incorrect factual staternent made by him, which
is not included in the extract cited by Applicants from his address, viz.,
"The Natives, nurnbering 406,000 now held zo million hectares,
whereas the Europeans, settled mainly by Soutli Africa since 1952
and numbering 60,000, held altogether 37.6 million hectares ofthe
bestland 4."(Italics added.)
Respondent has indicated above that the bulk of the land occupied by
European farmers, far from being "the best land", is in fact the least
endowed with physical resources and potentialities. Professor Wellington
errs further when he states- -
"South Africa ... had allocated only a small area to the Hereros in
Logan. op. cilp. 22.
Vide para. 15.sttpva.
IV,P. 4 15.
The Windhoek Advertiser, July 1960.Respondent regards the allegation con-
cerning settlementofEuropeans "mainly ...since 1952"as irrelevsnt for present
purposes. For particulars of allocations of fvide IIIp. 29.262 SOUTH WEST AFHIC.1
the Southern Hardeveld and had sent the remainder of the Hereros
to the barren Kalahari sand area. The Union had then settled South
African farmers on the fertile Hardeveld area l."
The area referred to by hirn as the Hardeveld is that described in the
Counter-Memonal as the Centralplateau 2.
The Herero reserves in SouthWest Africaare the foUo?.ving:
(a) The KaokoveId, in estent 5,514,617 hectares, situate partly in
the Namib, but mainly in the Central plateau (Hardeveld) ;
(b) The Otjohorongo and Ovitoto Reserves, in extent 426,299 hectares,
situate whoUyin the Central plateau (Hardeveld) ;
(c) The Aminuis, Epukiro, Waterberg-East and Otjituo Reserves, in
extent 2,687,809hectares, situate in the Kalahari area.
All these reserves, with the exception of Aminuis, falIwithin the region
over which the Herero had in early years trekked and grazed his stock.
From this information it is clear that Professor Wellington is wrong
when he says "only a small area. . .in the Southern Hardeveld" had been
aliocated to the Hereros. He is also wrong in saying that the reserves
rnentioned in (c) above, i.e., in the Kalahari, are in a "barren . . sand
area". The large stock increases in the said reserves referred to in the
Counter-Mernorial, especially in the Arninuis Reserve 4, serve in tliem-
selves to show that the area is a good one for farrning. In ibisregard it is
apposite to quote the following observation made by Lord Hailey:
". .. on the whole the conditions of soi1and grazing in the Reserves are
not inferior to those in the farrning areas of the Police Zone 5." It may
&O be mentioned that before the Aminuis and Epukiro Reserves were
proclaimed as such, the leaders of the Herero people inspected these
areas and declared themselves satisfied with the land.
Professor Wellington's further statement that "the Union had then
settled South African farmers on the fertile Kardeveld area" is only
artly true. European farrnerswere settled in the Hardeveld area, but the
&rger (wiuthern) part thereof hus an extremcly low rainfall 6,and can be
described from an agricultural point of view as being of the least favour-
ably endowed regions in South West Africa.
Zj. Respondent has already deJt with certain allegations made by
Applicants elsewhere in the Reply rvhich are in the present context
repeated in the followingterms :
"In view of the poverty of 'Native' inhabitants, the fact that
financial assistance was available to 'European' settlers but not to
'Natives', and that Respondent's laws and practices render residence
by any 'Native' anpvhere in the Territory insecure and make it
impossible for 'Natives' to lease land, there is no valid basis for
Respondent's conclusion that '... the provisions that have been
made, arenot unremonable' '."
IV, p. 415,footnot e.
2 II, map on p. 292. Prof. iVellington divides the Territory geographically into
three areas, "theand Coastal Desert, the Eastern Kalahari Desert sandaresand
thecentral Hardeveld".
' IV.epp.sIO-II.ich the Herero preponderate.
Lord Wailey, An African Suniey : Revised 1956(1957) p.764.
VideII,map on p. 294.
' IV, p.415. REJOINDER OF SOUTH AFRICA 263
These allegations are made relative to Respondent's statement that
Natives are entitled to purchase agricultural land in the Police Zone.
Respondent, in dealing with this matter l,explained why, on the one
hand, financial assistance was made available to European settlers to
acquire landin individual tenure, whereas, on the other hand, the Natives
were assisted by the establishment and extension of reserves set aside for
exclusive occupation by them. It has also been shown that the allegation
that Respondent's laws and practices "render residence by any 'Native'
anywhere in the Territory insecure", is absurd and devoid of truth 2.
Applicants' further allegation relative to the "poverty of [the] 'Native'
inhabitants" hardly calls for a reply, inasmuch as no averment is made
that this alleged state ofaffairs is due to any act or omission on thepart
of Respondent. Admittedly the Native inhabitants of the Territory
generdly have less financial resources than the Europeans. That isso,
however, not because of any Limitation placed on opportunities for them,
but because of their traditional outlooks and practices which result in
their own economy being on the whole stili of a subsistence nature. And
to Say, as Applicants do, that Respondent's laws and practices "make it
impossible for 'Natives' to leaseland", is also untrue. Respondent has
explained why the probationary leases in its land settlement schemes
prohibit assignment or cession of such a lease to a non-European during
the subsistence of the lease. There is othe,rwise no legal impediment to
agricultural land in the PoliceZonebeing sold or leased to Natives.
26. In addition to what has been stated above in refuting Applicants'
allegation that Respondent "has progressively reduced the proportion
of farm land available for cultivation or pastoral use by the 'Native'
population", reference can also be made to more recent developments
which belie the very basis of Applicants' cornplaint that Respondent's
policies are directed at the oppression of the Native inhabitants of the
Territory for the benefit of the Europeans in so far as, inter dia, the
economic situation is concerned.
The Odendaal Commission, the most recent of a number of officia1
commissions appointed over the years to report on the needs of the non-
European population groups of the Territory, has in its report recom-
mended a development programme which wili entai1 that the existing
non-European areas be enlarged by more than 50 per cent. In order to
irnplement this recommendation it wiii be necessary not only to make use
of State lands which are at present unalienated, but also to acquire from
European farmers, at large expense, substantial areas of land which they
have developed and improved over the years 4.
The propoçed extension of the existing reserves, however, forms part
of a compIex of recommendations made by the Commission with a view
to the establishment of separate homelands for each of the population
groups; and as Respondent has, for reasons which are known, decided
to defer itsdecision relative to the creation of the proposed homelands,
the question ofextending the reserves is therefore also heM in abeyance
for the present.
Despite such deferment, however, Respondent is proceeding with the
VideChap.II, paras.70-71 ,upra.
Ibid., para71,supra.
IIIp,p.32-33. andvide also Chap. II, para. 70, supra.
' R.P. No. 1211964.pp.87, 89-93,95 and 101-105. SOUTH WEST AFRICA
acquisition of the European farms involved in the proposals, so that when
the time comesfor decidingupon the homelands scheme, the demarcation
of the new borders can be facilitated l.
27. A clear indication ofthe çubstantial additions tothe non-~uFn
areaç involved in the recommendations of the Commission is given in the
following table, which reflects the present functional subdivision of the
Territory as compared with that proposed by the Commission.
TABLE
PRESENT AND PROPOSED FUNCTIONAL SUBDIVISION OF LAND
Present Proposed
Percent- Percent-
Subdivision Square age of Square age of
km. the km. the
whole whole
Farms: European ........ 389,650' 47.34
Others ......... 21.249~ 2.58
Towns and township areas .... 4*7404 0.58
Non-Europcan areas ....... 219.642~ 26.68
Nature reserves, government lands,
etc. .............
Total ....
28. On the assumption that the recommendations of the Commission
will be accepted without modification, the following table reflects the
availability of land for the different non-White groups as at 1g20, at
present, and asproposed bythe Commission.
It will be observed from this table that, in spite of the fact that the
population doubled itçelf over the last 40 years, the increase in hectares
fer capitaof the Native population will, ifthe Cornmission'sproposals are
adopted, be more than twofold, i.e.,from 31 hectares to 74 hectares per
cafiita.
29. The figures in the tables must be viewed in conjunction with
the fact that, whereas European-owned land has sincethe inception ofthe
Mandate been purchased by the owners thereof, al1the additions to the
l IV,p. 210.
2 Vide III,p. 30. (Refers to May 1g6r.)
Obtained by deducting area of European farms from the figure for al1 farms
given in the Commission's report. p. 29,table XI. viz., 158,653 square miles (=
410,899 square kilometres).
Vide R.P. No. rzjrg64, p. 29,table XI, where the area is given as 1,830 square
miles.
Ibid., p.III.
6 Ibid., where the figures quoted add up to 77,314square miles (=200,243 square
kilometres).
7 Ibid., p.109 (para. 425. A. and B.).
8 Obtained by adding increases proposcd by the Commission (ibid., item G.),
viz.,I1,021,61h9ectares (= 110,216square kilometres )o present area. It wiii be
noted that the resulting figure is 3,564 square kilometres more than the 326,294
square kilometres shown on p.III of the report.
9 Obtained by subtracting increases to non-European areas proposed by the
Commission (ébid.,p. II 1.item G.) from farms and government lands in table XI
on p. 29 ofthereport. TABLE
AVAILABILITY OF LAND IN VARIOUS NON-EUROPEAN HOME AREAS:
IN 1920, AT PRESENT, AND AS PROPOSED BY THE ODENDAAL COMMISSION
Home area Population Area in hectares Hectares pev capita
1~20 I9th I~ZO-2 I 13resent Proposed 1920-2 i f'resen t Froposed
Ovamboland . . .
Okavangoland. . .
Kaokoveld . . . .
Damaraland . . .
Hereroland . . . .
Eastern Caprivi . .
Tswanaland. . . .
Bushmanland. . .
Rehoboth Gebict .
Narnaland . . . .
Unallocated Land .
Total . . . L
rl
1 The information given in the different columns in tliis tablc hns been taken from tlic following sources: >
Col. (1) H.P. No. 1211gG4,p. 37, table XVI. Col. (2) Iliid.. p. 41,table XIX and p. 99 (para. 378). Col. (3) Counter-Mernorial, Book
VI, III, pp. 239-240 and pp. 246-247. Col. (4)R.P. h'o. 12/1964. p. 111, table G. Col. (5)Ibid.
2 This was probably a complete over-estimnte.
3 This figure is based on a 1925 estimate of 2,000. U.G. 22-1927, p. 22.
4 This figure also includcs "others".
5 This figure of q47.1gz includes 7,360 non-Europcan persons not listed in this column.
6 The figure is this coIumn are calculated on the prcsent population figures.266 SOUTHWEST AFRICA
Native reserves have been made on a gratuitous basis, except for one
farm in the Otjiwarongo district which was added to the Waterberg-East
Reserve, and which was paid for out of thetrust fund of the reservl.
In addition to the above consideration, there is the fact that by far the
greatest amount spent, and to be spent, on improvements in the Native
reserves, e.g., on fencing, boreholes, engines, windmills, dipping tanks,
dams, reservoirs, canals, etc.,has been, and wjU be, derived £rompublic
moneys. On the other hand, allimpfovements on private farmsowned by
Europeans have been, andwiü be, paid for by the owners concerned.
30.-In view of what içstated above, and bearing in mind the economic
considerationsinvolved, Respondent denies Applicants' accusations that
its policy with regard to the allocation of agricultural land to the different
population groups has been unreasonable, or unfair, insofar as the Native
populationgroup, or any other population group, isconcerned.
D. MeasuresTakenforthe Reliefof Persons AffectedbyDrought
31. In the Counter-Mernorial Respondent stated that the picture
drawn by Applicants in the Memorialswith regard to the assistance given
in South West Africa to persons affected by drought conditions was
misleading, largely because Applicants failed to distinguish between the
types of assistance given to the European population and the Native
population respectively 2.Respondent went on to explain that assistance
given to European farmers largely took the form of loans repayable
together with interest at stipulated rates, whereas the assistance given
to the Natives wasby way of direct or indirect grants, although loan
facilities had also been created for those Natives who had sufferedstock
losses as a result of the drought andthe foot-and-mouth epidemic 3.
Applicants revert to tkis matter in the Reply, and compile a table in
which they distinguish between the types of assistance given over the
period 1959 to 1961,and in ~vhichthey compare the value of assistance
given to Europeans and Natives respectively in the forrn of loans and
grants '.Cornmenting on the position as refiected in the said table, Appli-
cants say-
"[tlhe 'Native' population composes 85.24per cent. of the combined
total 'Native' and 'European' populations, yei was restricted to
2.4 per cent. of the total loans and 36.17per cent. of the total grants
made available for drought relief. Its share of the total outlay was
but 4.53 per cenL4"
32. Again,as in the Memorials, the picture drawn by Applicants is not
only factuaiiy wrong in certain respects, but is also generally misleading.
In the first place, it is unrealistic and illogical to make a cornparison of
the assistnnce given respectively to Natives and Europeans who have
been affected by drought conditions on the basis of total population
figures. Many people, European and Native, are not dependent on per-
sonal income from farming, and are therefore not directly affected by
drought conditions. Many, however. may we11be indirectly affected. In
this connection mention may bc made of the large number of Natives who
1 Departmental information.
III, p. 33.
Ibid.pp. 35-37.
IV, p.416. REJOINDER OF SOUTH AFRICA 267
are employed as wage-eamers on European farms. Whereas a relief loan
granted to a European farmer may be looked upon as assistance to him,
~tenures also, at least in part, to the benefit of the Native farm worker,
in the sense that he is assured of payrnent of his wages and employment
despite setbacks occaçioned by drought. The Native farniers, on the
other hand, Save perhaps with a few exceptions, do not, in the form of
agriculture practised by them, employ the help of wage-earners.
Then also,drought conditions differ from place to place in the various
parts of the Territory, and the consequences thereof are different for the
members of the variouç population groups. Thus, for the European
fmer who must, in order to subsist in the modern economy, of necessity
maintain a large number of Livestock, the type and the measure of
assistance, in order to provide adequate relief, must necessarily be
different from that required by the Native farmer, who practises a form
of subsistence economy l.
This situation provides the answer to Applicants' question "why the
'Natives' with far fewer financial resources to begin with, should be less
damaged in the overall by the drought than the 'Europeans' "*. The
Europeanfarmer, who iç obliged to pay interest or capital instaIrnents on
mortgages and also the wages of hisworkrnen, as wellas other operational
costs, cannot, when seriously affected by drought conditions, carry on his
farming operations unless he is given assistance ofthe nature esplained.
In the absence of such assistance he and his employees and their families
he makes to the economy of the Territory. In the case of the Nativeon which
farmer, the position generaiiy is different. Although he admittedly suffers
a setback in drought conditions, the consequences are not nearly the
same for hirn as for the European farmer. Farming in the reserve, he is
not çubject to the burden of capital charges, interest or an outlay of
operational costs. For him, drought conditions mainly affect his sub-
sistence resources, which can be augrnented by grants to tide hirn over
the periods of difficulty, or, if he so elects, by making use of loan facilities
created for him 3.And many Native farmers in the reserveç,who are also
migrant workers, can, with the assistance of the wages earned by them,
manage to "weather the storm" in times of drought, whereas the Euro-
pean farmer whose sole incorne is derived from his farming operations is
more materially affected.
It is in the circumstances entirely fallacious to draw a cornparison
between the share of the totd outhy made available, on the one hand, to
Europeans by way of loans repayable with interest, and, on the other
hand,the share made available to Natives by way of grantsin aid.
33, In the second place, the figuresupon which Applicants have based
their conclusion are wrong.
Applicants Say in this regard that the "financial data" given in the
table compiled by them "is derived solely from examination of [the]
Counter-Mernorial" 4.What they ornit to state, is that in certain respects
they have adapted the figures to suit their purpose. Thus, their compara-
Campare in this regardthe figuof livestock owned by Natives and Europeans,
respectively. III, pp. 8 and 13.
IV,p. 415.
Vide para. 31, supra.
* IV,p. 416, footnot2.268 SOUTH WEST AFRICA
tive table reflects a figure of Rjoo,ooo as having been utilized to assist
European farmers by way ofgrants, but nowhere in the Counter-Memorial
waç it stated that such a sum, or any particular sum, was expended in the
fom of gants to Europeans. What Respondent did Say was that-
"[slave for the. ..sum of E15o.ooo [R3oo,ooo] [which was intended
for unforseen emergency relief] the whole amount [of L2,6oo,ooo]
was applied solely towards yroviding loans for farmers, and not, as
Applicants would seem to suggest, free grants '".
Applicants, without justification, draw the conclusion that the said
suIn of R300,ooo was applied in making grants to European farmers.
In fact it was not. It was applied as foliows:
(a) A surn of Rzoo,ooo was used to purchase mealies, mealie-meal and
other foodstuffs for Kative scholars and patients in Ovamboland
and in other Native reserves, as well as for emergency relief in the
Rehoboth Gsbiet *.
(b) The balance of R~oo,ooo was applied in rnaking a loan, repayable
with interest at the rate of44 per cent. per annum, to a Company,
Damara Meat Packers Limited, The loan \vas to enable the said
Company to buy cattle in the drought-stricken areas, including the
Native ares, which were not in a marketable condition, but could
be used for canning purposes 2.
In the prernises it is clear that Applicants' whole table, in so faaçit
dealswith gmnts, and Applicants' cdculation that the Native population
"was restricted to ... 36.17 per cent. of the total grants made available
for drought reliefH3,fall by the board. In fact, by far the larger portion
of the moneys expended by way of grants was appropriated directly or
indirectly to the relief of thetive; the European falmers did not share
therein, Save in so far as provision was made for subsidized transport
of drought-stricken stock and for a subsidy on maize sold to farmers
affected by the drought l.
34. With regard also to loans, the figures in Applicants' comparative
table are ].rotcorrect.Respondent stated in the Counter-Mernorial that
loans totalling RIZO,~OO were granted by the South West Africa Adminis-
tration to tribd funds to enable Native farmers who had lost stock in
consequence of the drought and foot-and-mouth disease to replace such
stock. In fact the said sum mas made available for the purpose stated,
but only R47,ooo ufastaken up by certain of the reserves. The balance of
R73.500, although allocated for use, was not taken up, the Reserve
Boards concerned refusing the assistance offered. The reasons given for
the said refusal were either that the inhabitants of the resen7es were not
prepared to burden themselves with loan debtç, or that they were not
prepared to replace stock lost in the drought as they feared that there
wouId be a repetition of drought conditions in the next year, with a
resultant loss also of the stock purchased in replacement. Furthermore,
of the surn of R4,9oo,ooo reflected by Applicants as Ioans to Europeans,
an amount of Rz miIlion was made available to commercial banks on
investment to enable them to grant greater credit facilities. Although
2 Departmental information.
IV,p. 416.
+ III, p. 36. REJOINDER OF SOUTH AFRICA 559
such credit facilities would generally have enured to the benefit of
Europeans, they were not limited to them,and there was no reason why
Natives, if able to provide the necessary security, could not have availed
themselves of such facilities.
In the premises, Respondent contends that also in respect of the loan
position the comparison sought to be drawn by Applicants does not lead
anywhere. Surely, Applicants cannot justly complain that the loan
faciiities provided for the Natives were inadequate, when the Natives
themselves did not make fuii use of such facilities as were offeredto them.
35. In concluding their discussionof this topic,Applicants Say that the
figures in the table compiled by thern must be viewed-
"... in conjunction with the obvious factor that the margin of
hancial elasticity, or 'cushion' against adverse circumstances, is
infinitely Iessfor the 'Natives' than it is for the 'Europeans' in the
Territory in spite of the fact that the 'Europeans' have progressed
to the point where they may incur debt obligations l".
This statement rnay be tme, but only up to a point. Although the
European farmers may, generaliy speaking, have greater financial re-
sources than the Natives, assistance was given only to those who, as a
result of the drought, were in need of aid; and, as has already been
pointed out, the consequences of a prolonged drought are not only more
disastrous, but also entirelp different, for the European farmer who needs
assistance than for the Native famer. The result is that the type and
measure of assistance given arenot comparable.
E. AllegedDiscriminationin Social WelfareMeasures
36. In respect of alleged discrimination in what they term "other
Iegislative policies in the Territory as a whoIe" l,Applicants refer to the
followinglegislativemeasures :
(a) PneumoconiosisCompensation Act 2.
(6) The Workmen's Compensation Act 3.
(cj The SocialPensions Amendment Ordinance 4.
The first-mentioned of the snidmeasures waç referred to in the Counter-
hlemorial in answer to certain allegations made in the hlemorials6
relative to the Pneumoconiosis Act No. 57 of 1956,which had been re-
pealed. The other two measures were, however, not referred to in the
Mernorials or in the Counter-Memorial, and are now brought up for the
kst time in the Reply.
These three measures will be dealt with separately hereinafter.
37. Respondent denies that this Act implements "legislative policies
in the Territoqr". As pointed out in the Counter-J1emoria.l 5, the Pneu-
' IV, p. 416.
Act No. 64 of 1962 in Statulesof theRefiublic oSozbth Africa1g6z. Vol. II
(Nos. 59-93), pp. 1023-1183.
Act So. 30 of 1941 iStafufesothe Union ofSouthAfvica 1940-194 1..366-480.
(3rd. Xo.2 of1962 in The Laws ofSouth Ives; Africa 1962,Vol. XLI, pp.5-21.
III, pp. 62-63and 91.
1,pp. 121-122 and 128-129.270 SOUTH WEST APRICA
moconiosis Act, No. 57 of 1956 , hich was concemed with mines in
South Africa, did not apply to mines in South West Africa, although
certain of the sections of the Act relating to medicaand fiasi-morlem
examinations referred to the Territorl.And,as stated l, the position is
the same under the Pneumoconiosis Compensation Act of 1962, which
repealed the 1956Act.
Applicants, in reverting to this measurein the Reply, state:
"Respondent asserts that the new Act is 'in no way relevant to
mine workers within the Territory'. This may be true as long as no
Territorial mines have been scheduledas 'controiled mines' withm
the meanin of secs.I (12)and 54 (4)of the Act, but it is appiicable
to South $.est Afncan 'Natives' who may contract pneumoconiosis
in 'controlledmines'in the Republic, and is therefore relevant in the
premises2."
In answer to this statement Respondent says that, in the hst place,
Applicants' suggestion that mines in the Temtory can be scheduled as
"controlled mines" in terms of the Act is unfounded. The Act is in no
way applicable to mines in South West Africa, and no mines in the
Territory can be brought within the scopeofthe Act.
38. Secondly, Applicants' submission that the provisions of the Act
are relevant in the present enquiry merely because South West African
Natives may contract pneumoconiosisin controlled minesin the Republic
of South Africa, is a change of front to which they have been drivcn, and
is ridiculous. Surely the mere fact that the Act may affect individual
Natives from the Territory who voluntarily take up employment in the
Republic, cannot make it relevant to an enquiry regarding "legislative
policiesin the Territory".
AUperçonsfromthe Territory, bethey Europeans, Colouredor Natives,
who accept employment on mines in the Republic, do so of their own
choice. Although the number so employed is not known, it is considered
to be negligible.LVhatcan be stated, is that over the last fiveyears only
15 Natives from South West Africa qualified for,and received, compen-
sation under the Pneumoconiosis Act, No. 57 of 1956, and the present
Act of 1962 3.
In the premisesaforestated, Respondent reaffirmsthe attitude adopted
in the Counter-Memorial, viz.,that the provisions of the Act are not
relevant to the issuesbeforethe Court.
II. THE WORKMEN CÇ MPENSATI AOCNT
39. Applicants say that thiAct-
"... differentiates between racial groups in the followingways: on
his death, a 'European' or 'Coloured'workman's family receives a
pension, with allowancesfor children, whereas a 'Native workman's
famiIy receives a Iump sum settlement; a 'European' or 'Coloured'
workman's family receives £45 for burial expenses, and-s'Native'
workman's familyreceives l15 '".
The factuai allegationç in this statement are correct, Save that the
III, pp. 62and 91.
IV, p. 417, footnote 4.
Departmental information.
' IV,pp. 416-417. RE JOIKDER OF SOUTH AFRICA
271
figures mentioned in respect of burial expenses have since 1961been
increased to L5o (RIOO)and L20 (K40 )espectively l.
40.The reason why compensation is paid to the dependants of a
Kative workman in a lump sum, instead of in the form of a monthiy
pension, derives purely from practical considerations. Many thousands
of workrnen are recruited from tribal territories, both inside and outside
the borders of South West Africa, where the payrnent of pensions to
their dependants would be quite impracticable, and ~vherein most cases
it would be difficulto ensure that periodical payments over long periods
are made to the right perçons, And in the areas outside the resenres, the
dependants of many deceased workmen are inclined to move from place
to place in seeking new avenues of employment. It would therefore be
extremely difficult to keep track of them from month to month, and year
to year.
Another consideration is that iii many cases there is no evidence to
establish the ages of Native children who are dependants of a deceased
workman. This makes it impossible to apply a system ofpaying a monthly
pension terminable on the child attaining a fixed age,which is the system
operating in the case of dependants of a European workman. Support
for the children of a deceased Native workman is therefore provided
for in the lump çum paid to his family. It is anticipated that as the Native
labour force becomes more settled, and the practical difficulties can be
overcome, provision for monthly payments will also be made for the
dependants ofdeceased Native workmen.
In tliis regard it may be pointed out that there is already provision in
the Act in terms whereof periodical payments, instead of a lump sum,
can be made to a Native urorkman or hi5dependants where arrangements
in that regard are practicable. In this connection section 46 of the Act,
as amended, provides as foliows:
"46. (1)Any compensation payable to or in respect of any person
under this Act may, in the discretion of the commissioner and for
reasonsdeemed by him to be sufficient,be-
..............................
(b) invested or appLiedfrom time to time as the cornmissioner may
deem to the advantage ofthe workman, or those dependent on
him for maintenance ... 2"
In practice there are a number of cases where, in terms of the afore-
mentioned provision, the amountç awarded are invested, and monthly
payments are made to dependants of Native workmen instead of lump-
'sumpayrnents.
41.The fact that there is a differencebetween the amounts awarded in
respect of burial expenses of Natives and non-Natives respectively, is due
to the different stages of development and living standards generall
attained by, on the one hand, the European and Coloured groups, and:
on the other hand, the Native groups. On the whole, the Native workers
have alower income Ievelthan the two other groups, and their individual
cost oflivingis alsolower: inthe result amounts usually spent by them on
Vide Act No. 7 of 1961,secs.6 (d) and16 inStaiufes othe RcpublicofSouth
Africarg61, Vol. I (Nos1-41) ,p.40 and 44.
p. 428. Ko. 30of 1941, sec. (1)inStatutesofthe Union ofSowthAfrica 1940-rgqr,272 SOUTH WEST AFRICA
occasions such as funerais are also lower, and customs and charges
pertaining to funerals are attuned tothis fact.
The different amounts fixed as awards in respect of burial expenses
are based on Respondent's experience of tlie costs genernily involved in
the buriai of rnembers of tlie different population groups.
42. Applicants also Say, with reference to the Act, that bencfits for
disability are "calculated by percentages of wages, and therefore are not
visibly discriminatory by thernselves" l. They, however, add to this
remark the comment that "[tlhe wageç paid to 'Kative' labourers are
extraordinarily low" 2.
Respondent has already dealt with Applicants' allegations regarding
low wages paid to Native labourers in the Territory 3,and in the present
context need merely repeat its denial of Applicants' charge in that regard.
There can othenvise be no complaint against a system under which
benefits for disability are calculated on the basis of percentages of wages.
III. THESOCIAP LEXSIO~S AMENDMEN OTRDINANCE
43. Applicants point out that, in terms of the above measure, Euro-
pean and Coloured persons in the Territory are entitled to old age,
disability and blind persons' pensions or grants, although on a differential
scale, whereas in the case ofthe Native population no provision for such
pensions or grants is made l.
Their complaint in this regard is a twofold one, viz., firstly, that the
provision made for such benefits in the case of the Europeans and the
Colouredç is "on a discriminatory basis", and, secondly, that " 'Natives'
... are excluded from these public pension schemes" l.
It is true that the measure in question diffcrentiates between the scale
of benefits which are applicable to Coloureds and Europeans respectively
and that the Natives of the Territory have thus far not shared in the
benefits provided for in the measure. There are, however, as will be
indicated below, good reasons for this differentiation between the said
population groups.
44. The pensions and grantç provided for in the Ordinance in question
are not funded by direct contributions from the inhabitants of South
\T'est Africa, al1 the funds required being supplied from the ordinary
revenue of the Territory.
The fact that the income of the European inhabitants of the Territory
is, on the whole, substantially more than the income of the Coloured
inhabitants, has an importaiit bearing on the difference in the awards
provided for in the Ordinance for the members of these groups. In the
first place, the contribution of the Coloured people to the revenue of the
Territory, by way of taxes on incomes and on persons, is but a fraction of
the contribution made by the European population. Secondly, with
their lower income levels, the cost of living for the Coloured people and
their general standards of living are lower than those of the Europeans.
In addition, Coloured people in urban areas are provided with liousing,
water, electricity and sanitation ai lower rates, and in many cases they
are wholly exempt from taxes on property.
lIV, p.417.
Ibid., footnot3.
VideChap. II,paras. 43-GGsupra. REJOINDER OF SOUTH AFRICA 273
It stands to reason, therefore, that, while the object of the Ordinance is
to provide assistance to people who are in need by reason of old age or
disability, the measure of relief required by the mernbers of these two
population groups must of necessity be different.
It would in the circumstances have been unrealistic to pay pensions to
Coloured perçons at the same rates as those applicable to Europeans.
In fixing the scales of benefits applicable to the members of these two
population groups, Respondent has given due consideration to the general
standards of living of the two groups. Consequently, the income entitling
a European to a pension is fixed at a higiier rate than that for a Coloured
person, and the maximum pension rates are highcr for a European than
for a Coloured person.
45. In the case of the Native population different considerations have
thus far applied. In their traditional ways of life they are accustomed to
traditional forrns of assistance, and the concepts of mutual aid and care
of the extended fa~nilyhave wide prevalence arnongst them. This is parti-
cularly so in the reserves, where a forrn of communal subsistence is prac-
tised within the farnily group. In thissystem old age and physical disabil-
ity do not have the same conçequences for the Native living within his
communal society as they have for the European'or Coloured person who
is wholly dependent upon his own efforts and resources.
46. It must, however, not be anderstood that Respondent does not
contribiite to such traditional forrns of assistance. Indeed, the very
establisliment and maintenance of reserves for the Native groups per-
mit~ of the continuation of the traditional systems which prornote, inter
dia, the welfare of the aged and the infirm mernbers of the groups. In in-
dividual cases where Natives cannot benefit frorn traditional forms of as-
sistance, relief is granted iother ways, such as the provision of weekly
rations.
47. Developrnent and progress in the Territory in recent years have
made it feasible to consider the introduction oa system of social pensions
also for the Natives, and Respondent has in fact already decided in prin-
ciple upon the introduction of such a system.
Inasmuch as the administration of such a scheme for al1 the Native
inhabitants of the Territory must, in the nature of things, require careful
and detailed planning, particulars tl~ereof areat present being worked
out, and it iexpccted that the scheme will be brought into operation in
the near future.
48. IVhile Respondent admits that the measures at present in operation
differentiate in the respects aforestated between the different population
groups, itdenies Applicants' suggestion that such diflerentiation is in-
spired by a motive to discriminate between the srtid groups in an un-
reasonable or unfair manner.
1 Vide para.29, supra. CHAPTER IV
THE POLICE ZONE
A. Introductory
I. This Chapter içdevoted to a treatment of the matters raised by
Applicants in Chapter IV B.3.c.z (D) of the Reply under the heading
"The Police Zone" l.The subject-matter of this part of the Reply isdi-
vided by Applicants into three 50-called "areas of economic rights" 2,as
summarized below, and will be dealt with by Respondent in the same
order, viz.:
(a) Admission to employment and access to vocational training;
(b) Measures allegedly having the effect of compulsion to labour;
(c) Freedom of association and the right to organize.
2. Inasmuch as Applicants purport to discuss Respondent's policiesand
practices relative to the above matters in the light of what they term
"recognized standards applicable to the three saidareas" 3,it is necessary,
before proceeding to deal with Applicants' specific charges, to give con-
sideration to these so-calted "recognized standards". This wiü be done
in the following paragraphs.
3. Applicantsthemselvesnow dehinreethe content ofthe "standards"
on which they rely. They merely refer to the "I.L.O. Programme for the
Elimination of 'Apartheid' in Labour Matters in the Republic of South
Africa", which forms an Annex to the I.L.O. "Proposed Declaration
conceming the Policy of 'Apartheid' ofthe Republic of South Africa" +,
and they Say that the said "Programme" is included among the docu-
mentation in these proceedings inasmuch asit expresses-
"... the judgment of the Organisation with respect to recognized
standards applicable to the three said areas, and is based upon exa-
mination of a legal and administrative systern which is analagous
[sic], in al1 relevant aspects, to that existing in the Temtory 3".
(Footnote omitted.)
From a perusal of the said "Proposed Declaration" it appears that the
"Programme" in question was drawn up by the I.L.O. in compliance
with a request of the Governing Body of the International Labour
Office for-
". . . suggestions conceming the contribution which the I.L.O.
could make to the complete elimination of apartheidand to suggest
what action should be taken to secure the observance of the
IV. pp.417-424.
Ibid.,p. .-9.
Ibid.. pp.417-418.
International LabourOffice-Intemational Labour Conference, Forty-Eighth
Session, 1964, Tenth Item on the Agenda: Proposed Declavalion conceilaini tha-
Policy of "Apartheid"oftheRepublic ofSouth Africa(Report X). HEJOINDEK OF SOUTH AFRICA =75
principles in the Constitution and to protect human dignity" '.
The said "Programme" avowedly c~ncentrates on what js referred to
therein as the aforementioned "three broad areas" *.It contains a short
discussion of various legislative measures and practices in the Republic of
South Africa relative to the said "areas", and concludes with "Recom-
mendations for Action" which would involve the repeal and/or amend-
ment of certain legislative measures at present in force in Soiith Africa.
Neither the "Proposed Declaration" nor the "Programme" annexed
thereto contains any clear statement as to any particular standards ap-
plied by the Organisation in evaluating Respondent's said legislative
measures and practices. However, in advancing reasons for concentrating
on the aforementioned "three broad areas", the 1 .L.O. stated, inter alia-
". .. well-established standards approved by the International
Labour Conference with near unanimity exist in respect of al1 of
them ; these standards give expression to principles proclaimedin the
Declaration of Philadelphia as being among the aims and purposes
of the International Labour Organisation ... 2",
and
". .. the widespread acceptance of these standards in Africa gener-
ally, and in substantial measure by South Africa's immediate neigh-
bours in southern Africa, refutes the suggestion that 'the present
stage ofsocial and economic development' of South Africa, which is
generally conceded to be technically the most advanced of al1 Afri-
can countries, precludes their immediate application there ...
These statements in no way elucidate the nature and content of the so-
called "standards" purported to have been applied in the enquiry made
by the Organisation. A reference to the provisions of the Ueclaration of
Philadelphia 3,referred to in the above quotation, takes the matter no
further, inasmuch as tlie said Declaration merely expresses in the follow-
ing broad terms, humanitarian concepts which are considered to underlie
the aims and purposes of the International Labour Organisation, viz.:
". .. al1 human beings, irrespective of race, creed or sex, have the
right to pursue both their material well-being and their spiritual
development in conditions of freedom and dignity, of economic
security and equal opportunity ... (".
4. In this particular respect, therefore, as is the case generally in the
Reply regarding undefined so-called "norms and standards" upon which
Applicants seek to place reliance, there is an avoidance of any treatment
which could throw light on the alleged juridical nature or content of such
norms or standards.
l International Labour Office-InternationalLabour Conference, Forty-Eighth
Session. 1964, Tenth Item on the Agenda: Proposed DecEarafion concerning th8
Policy of "Apartheid" of the RepubliO/South Africa (Report X). p. 13.
Ibid. (Le.(a), (b) and (c) in para.1,supra).
International Labour Office, Constitution of the Intevnalional Labour OrganPsa-
taon and Standing Orders of the Internafional Labour Canference (1963edition).
Annex. pp. 21-23.
Conference. Forty-Eighth aSession,r1964, Tenth Item on the Agenda: Proposcdr
Declaration concevni~g the Policy of "Apartheid" of the Repzrbdic of South Africa
(Report X), p. 7.In this regardvidealsosec. B. para. 25supa.
Vide sec.C, para. 34, supra. 276 SOUTH WEST AFRIC.4
. There seems to be little doubt, however, that Applicants are not in the
present context relying on norrns or standards allegedly possessing a
defined and certain legal content-like their oft mentioned legal norm
of "non-discrimination or non-separation"-but rather on norms or
standards which are not advanced as having attained the status of legal
norms, but which are said to enjoy wide acceptance in practice. Kespon-
dent has already dealt with Applicants' norrns and standards of the latter
type, and fias demonstrated that "evidence" tendered by Applicants
regarding the existence of such norms and standards cannot serve to
introduce new obligations into the Mandate, and that siich evidence can
at most be relevant only on the basis of an enquiry whetherRespondent's
policies and practices are inspired by improper motives l.
It is, therefore, only on this basis that the "judgrnent" of the Inter-
national Labour Organisation as expressed in the I.L.O. "Programme"
.with respect to so-called "recognized standards", can be relevant to the
present enquiry, and it is upon this basis that Respondent will give con-
sideration thereto. In this regard Respondent at the outset makes the
following observations :
(a) The whole approach of the International Labour Organisation
in the examination of Respondent's policies and legislative measures
rested upon an a priori assumption thnt such policies and measures,
being founded on a general policy of apartheid, were impermissible.
In this regard Respo~ident has already indicated that the "Pro-
gramme" was dratvn up by the Organisation in performance of a
specific task entrusted to it, viz., to rnake suggestions "concerning
the contribution which the I.L.O. could rnake to the complete
elimination of apartheid" 2. It istliercfore not surprising tbüt the
Organisation, in examining the relevant South African legislation,
did not approach the matter \.vithout bias, and did not attempt
to make an objective cvaluation against the background of al1 the
relevant circumstances and considerations. Of major importance
in this regard is the fact that, althougli the Organisation was fully
aware of.the basis upon which Respondent justified the existence
of the measures examined by it, viz., separate development of the
different population groups in South Africa, and, although mention
thereof is made in the "Programme", tliis was not taken intoaccount
at al1in the examination and condemnation of the legislative mea-
sures in question.
Thus, the "Programme" recited the following explanation furnished
by Respondent in a report sent to it in rg62 relative to the legisla-
tion under consideration :
"The population of the Republic of South Africa comprises
four very distinct population groups of whom eleven million
are Bantu, three million of European origin, 500,000 of Asian
origin and one-and-a-half million of mixed origin. The problem
of ensuring the economic advancement and peacefulCO-existence
of this heterogeneous society in different stages of social and
industrial evoIution, in a manner which will ensure justice and
the fiirtherance of the welfare of all, has necessitated the pur-
.suance inthis country of a yolicy of separate development with
l Vide sec.C. paras.34-39. strpva.
2 Vgdepara. 3, supra. REJOINDER OF SOUTH AFRICA =77
a view to securing for al1groups the realisation of theirhighest
ideals within their own communities. Socio-economic conditions
in the sphere of employment and occupation have necessitated
the enactment of legislative measurcs peculiar to the needs of
the different population groups so that they may progress in the
direction of self-determination. The introduction of an integra-
ted labour systcm would inevitably lead to economic and social
injustices, bearing in mind that there are distinct communities,
which differculturally, ethnically and sociallyThese differences
can be minimised only by affording such legislative protec-
tion as circurnstances warrant in order to ensure that no group
is deprivcd of the benefits to which its energies, labours and
initiativesentitle it.
In certain fields where the considerations outlined above do
not apply, there is a prohibition agni~instdiscrimination on the
grounds of race or colour. Section 24 (2) of the Industrial Con-
ciliation Act,1956, and section 8 (4) of the Wage Act, 1957 ,or
instance, provide specifically that wnge-regulating measures
under those enactments shall not differentiate or discriminate
on the grounds of race or colour. These two rneasures cover
practically the whole field of stntutory wage regulation in
industry and commerce. Similarly the Apprenticeship Act,
1944, which regulates thc admissiori of persons to apprentice-
ship training does not permit of any discrimination of the nature
referred to in the Convention. Generally speaking, however,
the law and practice in Soutli Africa, based asit is on theendea-
vours of the Government to ensure that each population group
develops to the maximum of its economic potential with mi-
nimum impingement on the rights and aspirations of others,
inevitably necessitates limitations on the rights of al1 1."
This explanation made ciear, and stressed, the fundamental
character and objcctivc of Respondent's policies, viz., develop-
ment toivards separate nationhoods for tlic various peoples forming
the total population of the Republic. There is, however, on the
part of the Organisation, a significant absence of any attempt to
examine and test the legislation concerned on this basis; in fact,
no further reference thereto is macle at al1 in the "Programme".
Instead, the "Programme" simply proceeds to examine particular
1egisIative measures as if they were enacted for a society which
either was homogeneous or integrated in fact, or which the Govern-
ment concerned was developing, or was obliged to develop, in
the direction of becoming an intcgrated entity.It stands to reason
that standards appropriate foran integrated nation, real or emergent,
cannot without rnaterial adaptation be considered appropriate
for a group of separate nations, real or cmergent. For example,
as far as Respondent is aware, nobody h,asever suggested that the
standard of "equal opportunity" is necessarily tobe applied within
a state as betiveen nationals and non-nationals ,thereof. If the
Republic of South Africa is not expected to apply such standards
. . -.
1 InternationalLabour Ofice-International Labour Conference. Forty-Eighth
Session,1964, Tenth Item on the Agenda: Pvoposed Declarabion concevningthe
Policyof "A#artheid" ofthe Hepublicof South Africa (Report X), p. 15. SOUTH WEST AFRICA
as between her nationals and inhabitants of the Protectorate of
Basutoland, it seems unrealistic to expect her to apply it as between
her White citizens and inhabitants of the emergent independent
Transkei territory. Yet the whole underlying approach of the
Organisation isexactly such an unadapted application of standards
appropriate for integration to a factual situation of emergent,
separate nationhoods. In Respondent's submission this fallacious
approach tends, ab initioto render valueless the conclusions arrived
at by the Organisation.
(b) The I.L.O. "Programme", moreover, in esamining certain legis-
lative measures in the Republic of South Africa. does so without
consideration of the historical background and the socio-economic
conditions which in certain respects necessitate differential treat-
ment of the different gi.oups in order to do justice to all. In the result
the exposition in the "Programme" regarding the Icgislative mea-
sures in question is not complete, [airor accurate.
(c) In the premises Respondent submits that the findings in the so-
called "judgment" of the Organisation can hardIy be of assistance
in evaluating policies and practiccs in South Africa: not only does
this "judgment" proceed on the assumption thnt the policy of
apartheid, which is allegedly impkmented by the measures examined
by the Organisation, iç impermissible and rnust be eliminated,
but it ignores the principles and basic objectives of Respondent's
policy of separate development, and disregards socio-economic
conditions in South Africa. And, inasmuch as the "Programme"
is concerned only with legislation in South Africa, the relevance
of tlie findings of the Organisation to the present proceedings, .
which are concerned with South West Africa, is even more question-
able. Applicants contend in this connection that thc "legal and
administrative system" in South Africa which was examined by
the Organisation "is analagous, in al1 relevant aspects, to that
existing in tlie Territory" l. Kespondent denies that there is such
an analogy, save in broad respects, and says that its aforegoing
remarks regarding the relevance of the said findings iiithe "Pro-
gramme" apply with even greater force to Applicants' attempt
to extend such findings to legislation in South West Africa.
5. In regard to the aforementioned "standards" Applicants also rely
on the 1953 report of the United Xations-I.L.O. Ad Hoc Committee
on Forced Labour for a contention that-
"[tjhe parallels between the Territory and the Republic were ex-
pressly recognised [by the Committee] in the second area (freedorn
from forced labour) .. .l".
In so far aç the said report is concerned, the Committce concluded
that the South African pass la~vs-
". ..mny serve the purpose of directing a supply of ample, and con-
sequently cheap, labour towards regions where it is required for
economic reasons 2" (italicadded),
and that legislationin South Africa involving pend sanctions for breach
1 IV,p. 418.
* Ibid.. p432. REJOINDER OF SOUTH AFRICA =79
of contract ". .. might lead to a system of forced labour for economic
purpoçes" l. (Italics added.)
With reference to similar legislation applicable to South West Africa,
the Committee confirmed in the case of the Territory the conclusions it
had reached with regard to South Africa itself=.
The conclusions of the Committee regarding the aforementioned
legislation wiil be dealt with elsewhere in this Rejoinder 3, Save that its
findings in regard to the master and servants laws will be discussed
hereinafter relative to Applicants' charges in that connection 4. As will
be sliown, there is no foundation for a finding that the Iaws in question
involve, even in a remote sense, compulsion to labour.
6. Firially, Applicants rely on a passage from the 1957 report of the
United Kations Committee on South West Africa in which the Com-
mittee recommended that the ". ..Iabour laws of the Territory shouId
conforînto the standards ap#roved by iheInternationuE Labour Organisatiolz
for non-metro+olitanTerritories ..." 6. Applicants allege that this recom-
mendation ". .. accurately and expressly acknowledged the standards
approved by the I.L.O. . . ."6.
--
In the report of the Committee no discussion of I.L.O. "standards"
is to be found, and it is consequently difficult to understand how the
Committee canbe said to have "accurately" acknowledged such stan-
dards. It is in any event clear that if the 1.L.O. "standards" do not assist
Applicants' case-as is subrnitted above-then neither does the Com-
mittee's express approvalthereof.
7. Reçpondent next deals with Applicantç' allegations concerning the
aforementioned three "areas of economic rights".
B. Admission taEmploymentand Access to Vocational Training
8. Applicants' main charge in relation to the subject-matter under
consideration is that Respondent has closed a number of skilled tradeç
to perçons other than Europeanç. They rely on the provisions of the
Apprenticeship Ordinance (S.1V.A.) 7,as amended 8, to substantiate their
charge. This Ordinance was not referred to in the hlemorials, but, subject
to what has ah-eady been said regarding the introduction of new material
in the Reply, Respondent wiii deal with Applicants' allegations there-
anen t.
9. By alleging that only European minors rnay execute contracts of
apprenticeship, and that a minor may be employed in designated in-
dustries only if he has executed a contract of apprenticeship with his
IV, p. 434.
* Ibid.. p. 438 (paras. 385 and 386).
' Vide sec. 1infra.
+ Vidt paras.23-33, infra.
C.A .,0.8..TwtlflhScss..SuppI AT0.12 (A/3626).
IV, p. 418
Ord. No. 12 of 1938 in The Lawsof South West Ajrica 1938, Vol. XVII, pp.
214-234.
Ord. No. 15 of 1948 in The Laws of South West Africa 1948, Vol. XXVII,pp.
224-226; Ovd.NO. 25of 1957 inTh8 Laws of South West Africa I957,Vol. XXXVI,
pp. 252-254 and Ord. No. 20 of 1959 in The Laws of South West Africa 1959,Vol.
XXXVIII, pp. 520-524.
Vide sec.D, supra,280 SOUTH WEST AFRICA
employer, Applicailts create the impression that non-White rninors may
not be employed in such industries l. This impression is erroneous, as
WU be shown hereunder.
The Ordinance, as originally enacted, provided, interalia, for the Ad-
ministrator to designate trades for defined areas to which the provisions
of the Ordiname wouldbe applicable 2; for the entering into and re içtra-
tion of apprenticeship contracts pertainiiig to designated trader and
for the appointment of (i)an inspector of apprenticeship to carry out the
powers conferred and duties imposed by the Ordinance, and (ii) an
apprenticeship committee to make recommendations to the Administra-
tor 4.The Ordinance also provided that only European minors who had
passed Standard VI or who had, after being employed for six months
at any designated trade, passed an educational test to the satisfaction
of the Apprenticesliip Cornmittee concerned, could bind themselves as
apprentices in any designated trade 5,but did not contain a prohibition
against employment in a designated trade in the absence of a contract
of apprenticeship.
Such a prohibition was introduced in 1946 when section 4 of the
Ordinance was ainended by the insertion of a new sub-section (a)which,
in so faras isrelevant, reads :
". . .no person shall ... without the written consent of the inspec-
tor ... given after consultation with the apprenticeship committee
concerned, einploy a rninor in any designated trade . .. unles a
contract of apprenticeship has been entered into inaccordance with
this Ordinance .. .6".
This amendment was conceived to ensure that unscrupulous employers
in designated trades would not take minors into their service and there-
after refuse to enter into contracts of apprenticeship with such minors,
thus fmstrating the very object of the Ordinance. In fomulating the
amendment the legislature had in mind only such minors as could in
tems of the Ordinance enter into contracts of apprenticeship. The
amendment does not affect the position of non-Ihite minors, who may
be freely employed in designated trades, whether in a skilled or unskilled
capacity, but who may not enter into contracts of apprenticeship. The
reasons for this differentiation are considered in the succeeding para-
graphs.
IO. As already mentioned, a European minor may enter into a con-
tract of apprenticeship only if hehas passed Standard VI or acomparable
educational test. In 1938, when the Ordinance was originally enacted,
very fewnon-Whites possessed this qualification, and those who did were
absorbed by the teacliing and other professions. In this regard it may be
mentioned that, although the Ordinaiice had been in existence since 1938
it did not corne into effective operation until 1957 , hen the first trade
was designated by the Administrator. Consequently, prior to that date
IV, p.419.
,*Ord.No. 12of 1938.sec.I inThe Laws ofSouth West Africa 1938. Vol. XVII,
pp. 214-216.
Ibid..secs. and 6. pp.216-218 and 218-220.
Ord. Xo. izof1938, secs.5 and II.pp. 218 and 222-224,
.Vbid., sec.8,pp.220-222.
0yd. NO. 15of 1948* sec.I (a) in The Laws of South West Africa 1948, Vol.
XXVII, p. 224. REJOINDER OF SOUTH AFRICA 281
minors, irrespective of race, could enter into contracts of apprenticeship
relating to any trade whatsoever in tems of section 23 of the Master and
Servants Proclamation (S.W.A.) l, and the fact that not a single non-
White ever entered into such a contract shows that non-IVhite rninors
either were not interested in the skilled trades or were not considered by
prospective employers to have the necessary qualifications to serve as
ap- -ntices.
II. Since 1956provision haçbeen made at the Augustineum, a govern-
ment educational and technical school for Natives 2, for practical and
theoretical courses in masonry, carpentry and tailoring. These courses
run for three years. The qualification for entry has purpoçely been made
low, viz., Standard IV, so as to enable as many Natives as possible to
qualify. After successfulcompletion of such a course the Native concerned
is free to practise his trade in the Territory.
Since the number of candidates who have enrolled for the three courses
in the past has been rather disappointing, provision for additional courses
has not thus far been made. The following table refiects the number of
students who successfully completed the cxisting courses during the
period 1958 to 1963 3:
1958 1959 1960 1961 1962 1963
Masonry ......... 4 1 3 0 O O
Carpentry ........ 2 3 2 2 O 3
Tailoring ........ 5 4 I 5 4 5
, AIthough the total number of students at present enrolled in these
courses is only 37, it has been decided. with a view to meeting new
demands expected to accompany the increased development of the non-
White areas proposed by the Odendaal Commission, to provide for addi-
:tionnl courses also in welding, leatherwork and motor mechanics. For
the same reason it is intended to make provision in the near future for
courses in carpentry, masonry, tailoring, welding, leathenvork ünclmotor
mechanicsalso in the northern territories.
12. As regards the industries mentioned by the Applicants 4,it should
be observed that conditions of apprenticeship have not as yet been pre-
scribed in respect of certain designated trades, viz.,the boot-making,
clothing, carriage building, food (baking and butchery) and leather
trades, which means that the Ordinance is not yet in effective operation
in the case of these trades.
13. With reference to the South African Native Building Wo-ers
Act 5,Applicants allege-
"[blecause of the restrictions imposed under the Apprenticeship
Ordinance .of 1938,it hasnot been necessary to promulgate legisla-
, tion similar to the South African legislationwhich prevents 'Natives'
l PYOGN . O. 34of 1920,secs.,20- 32The Laws of South West AfricaI915.922,
Vol.1, pp.342-346.
III,pp. 466-467.
Departmental information. '
IV, p. 419.
5 Act No. 27 of 1g5r inStafutesof the Unionof South Afvicarggr. pp. 106-152
as amended by Act No. 60 of1955 inStatutes of IhUnion of SoufhAtrica,1955.
Part II (Nos. 56-70), pp. 1508-1510,282 SOUTH WEST AFRICA
from being cmployed 'onskilled work' in any urban area other than
a 'Native' area'".
This allegation creates the impression-
(a) that Natives are, in effect, debarred from qualifying as skilled
workers in South West Africa by virtue of the provisions of the
Apprenticeship Ordinance ;and
(b) that the said South African statute prevents Natives from per-
forming any skilled labour in urban areas in South Africa other
than Native areas.
As regard the first aspect, it has already been shown that Natives
are in fact trained for skilled work in the Territory, and that a Native
who has successfully cornpleted a technical course may practise his trade
anyvhere in the Territory. Noreover, there is nothing to prevent a
Native from being employed in a skilled trade in which he can gain
practical experience, or from enrolling for one of the theoretical courses
prescribed by a number of institutions, for example the Witwatersrand
Technical ColIege, which sets examinations for European apprentices
in the Territory. Respondent stresses that no Native is debarred from
practising a skilled trade in the Territory, and refers to what has already
been stated regarding the extent to which Natives are already employed
in skilled work 2. Furthemore, it is governmeni poIicy to ernploy as far
as is practicable only Native workers, skilled and unskilled, on govem-
ment projects in Native areas.
14.Applicants also create the impression that Natives are, in fact,
prevented from being ernployed on skilled work in the Territory by
referring to the following excerptfrom the 1956 report of the Committee
on South West Africa:
"The AllgemeineZeitulzg of 8 November 1955 ... reported that
the Chief Native Commissioner, acting under the direction of the
Minister for Sative Affairs, had stated that the use of 'Natives' for
qualitative jobs, as was under consideration in Northern Rhodesia,
wodd not be permitted in South West Africa. The statement had
been occasioned by information which had been circulated that
'Natives' in the Territory would perform work which had until then
been reserved for 'Europeans' 3."
The above quotation from the Cornmittee's report follows on a para-
graph with which it was intended to be read. Before referring to the
report in the AllgemeineZeitung, the Committee stated that, according
to newspaper reports, the secretary of the South West Africa Mine-
workers' Union had said during August 1955, that White employeeç
on a mine at Tsumeb were concerned about losing their jobs to Natives.
This was due to the fact that the Rhodesian Selection Trust was then
in the procesç of negotiating with the Northern Rhodesian European
Mineworkers' Union regarding the advancement of Natives on its mines
in Northern Rhodesia to certain posts held by Europeans. It is clear,
therefore, that the report in the Allgenaeime Zeitung was concerned only
with "quaIitat ivejobst' onmines.
The statement which, according to the Committee, was reported in
lIv.'pp.419-420.
Vide Chap.II, para. 6supva.
'IV, p.420. REJOISDER OF SOUTH AFRICA 283
the Allgemeil8eZeifung,was not made by the Chief Native Commissioner
but could have been made by one of the officers in charge of the labour
branch of the office of the Chief Native Commissioner at the time, since
it correctly refects Respondent's policy regarding higher skilled work on
European mines in the Police Zone outside the reserves. Respondent has
already explained the reasons why certain qualitative jobs in such mines
are reserved for members of the White group 1,and it is unnccessary to
repeat the reasons here. There is, in any event, no doubt that the state-
ment reported in the AlZgemei+a eeilufig, if it was in fact made, did not
apply to skilled work generally, as is suggestedby Applicants.
15. As regards Applicants' reference to the South African Xative
Building IVorkers Act =,it shouldbe observed that ivhile section 15 (1)of
the Act provides in general terrns that no Native may be employed on
skilled work in any urban area other than a Native area, section I (xvi)
defines "skilled work" as work performed in a number of trades pertaining
to thebuildin i?zdzlstryIn view of the fact that this Act only applies to
the building industry, Applicants' reliance thereon for the broad alle-
gation that Natives in South Africa are prevented "from being employed
'on skilled work' in any urban area other than a 'Native' area" 3, is
unjustified.
16. Respondent does not propose to deal in detail with job reservation
in South Africa, but in view of Applicants' reference to the Native
Building i\'orkers Act a brief elucidation of the principles underlying the
Act will be given.
Neither the Applicants nor the I.L.O. "Programme" mentions that
the Act also makes provision for machincry to prevent persons other than
Natives from perforrning skilled work in the building industry within a
Native area, except with the written consent of the Biinister of Labour
It will thus be seen that job reservation in the building industry cutsboth
ways, protecting Native building workers in Native areas and European
workers in European areas. The principlcs embodied in this Act are in
accord with Respondent's general policy of conferring priority rightç on
the different population groups in their respective areas.
17. Opponents of job reservation tend to lose sight of its beneficial
reciprocal effect frorn the point of view of the Native. Separate develop-
ment, in the economic sphere, ensures for the Native the opportunity of
establishing his own business in his oivn area, sheltered from the competi-
tion of European institutions with greater capital resources. In the words
of a South African Bantu sociologist, D. E. Mabudafahasi:
'"The Policy of Separate Development, however, limits competi-
tion for work or for business within each group. The white man, e.g.,
rnay not run a business in a Bantu Area.
In this area it is the right and privilege of the Bantu to run
business.
Even if he has a small capitalhehas a chance to make a start and
1 Vide III, pp55-57and videalso inthis regard Chap. II, par77-79.
* Vide para.13.supra.
IV,p. 420.
Vide para. 3supra.
Act No.27 of 1951,sec16 inSfafuieoffhc Uhion ofSouth Africa 1951pp.126-
128. SOUTH WEST AFRICh
build himself up-a thg which could not happen in an open
situation under a cornmon program of development I."
It is sigiiificant that even persons critical of Respondent's policy of
separate development concede that job resewation as introduced by the
Native Building Workers Act is justified. So, for instance, a former Chief
Justice of the Supreme Court of South Africa, Dr. H. A. Fagan, who is
quoted by Appiicants in another context 2,wrote:
"If Bantu are trained to do skilled work in this line (i.e., the
building industry) and are then allowed to compete freely with
Whites, Coloureds and Asiatics, that would be the kind of unequal,
and thcrefore unfair and harmful, competition to which 1 have
referred. On the other hand, the provision of low-priced housing
accommodation for the Uantu is one of the most pressing needs of
the country. The solution which the Government has found, and
agaittst whtch I can see no objectionin $ri.itciple,is that provision
should be made for the training of Bantu artisans in the building
industry and that in their case a lower wage rate than the usual one
should be allowed, but that they may be employed in their skilled
capacity only in the Bantu Areas and in Bantu locations 3." (Italics
added.)
18. Applicants also allege in this regard that practices involving eco-
nomic differentiatioii "are wasteful, in the extreme, of available human
resources" 4,and they qiiote the following passage from a statement by
hlr.S.G. hlenell:
"1 have heard the argument that the -4frican is not yet ready to
rise above foreman level. However, there islittle valzrein assessing
9eoplein grottps.In business, the employerseeks talented individuals
-whose talents he tries to utilise to their own and the company's
best advantage. It is for this reason that the laws restricting certain
jobs to certain groups of the population seem illogical 5."
From a purely short-term businessman's point of view, Mr. AIeneli's
statement seerns logical ; but he appears to give no consideration to the
fact that a governrnent has to take a wider view of the comrnunity's
interests. It is one of the primarp functions of a government to ensure
peace and orderliness, to promote the interests of al1 sections of the
population for which it is responsible, and, therefore, inter alia, to avoid
policies mhich are likely to lead to serious disruption and strife. The
"restricting Iaws" to which hlr. Menell refers were designed to forestall
the ernergence of inter-racial competition with its inevitable consequences
of social unrest and economic instability, and to serve the long-term
interests of the comrnunity as a whole.
In this connection Dr. M.S. Loiiw and Professor J. L. Sadie, who are
generally regarded as being, respectively, arnong South Africa's foremost
financiers and econornists, have replied as follows to arguments of the
kind advanced by hlr. hlenell:
l Dagbreek enSondagnuus, 20Sep. 1964.
IV, p.285.
Fagan, H. A., OurResponsibility :ADiscussiof South Africa's Racial Problems
('960),PP 75-76.
' IV, p.-420.
Vbid., italicadded by .lpplicants. REJOINDER OF SOUTH AFBICA 285
'8
Very broadly, two main types of policies, or solutions to Our
economic problem, can be distinguishcd :
(a) the laissez-faire(orempiricist), and
(b) the separate development or positive apartheid (or fundamenta-
list) solution.
EIements of both solutions could, of course, be combined in one
policy.
Although the alternative to separate development has not yet
been unequivocally formulated, it appears to us to amount to some
kind of laissez-faivepolicy according to which, in a vague sort ofway,
free or equal opportunities are promised for all in an integrated
society. It would imply the abolition of influx control and of al1
legislation which accords White workers some preferential treatment
or restncts the progress of non-Wihitesin the skilled grades ...
The idea of opportunities for al1has great appeal, but on closer
esamination rnay lose some of its attraction. The realizable goal
would appear to be 'iree'opportunities, in the sensethat no speci6c
economic barrierç are put in the way of non-lhites by rneans of
legislation, Those who are in the position to make use of,or create,
opportunities are then free to do so. But under existing conditions
not man- non-\mites are in this position, so that the masses ~ould
not benefit under this scheme of things. ilIoreover, the conventional
colour bar cannot be legislated away . . .
In fact, afull-blooded laissez-fairepolicy should abolish the Bantu
Areas as land reserved for Bantu only, The effect of such a.measure
would be that within a decade the land would be in the hands of
White farmers, the Areas would have become fuily developed areas,
at least agriculturally, the money paid for the land would have been
squandered or spent on consumer goods, and most of the crstwhile
pesants wouldbe slum-dwellers.
A laissez-/aire policy cnngot be fair where there is hiequalZty in
degree of development,in talerats,wealthand income l." (Italics added.)
19. Finally, Applicants allege that-
"[in] addition to the skilled trades which Reçpondent has closed to
persons other than 'Europeans', the fields of mining, railways and
harbours, and public transportation are subject to the effects of
economic and social afiartkeid2".
Respondent has already dealt with Applicants' charges relating to rail-
waysand harbours and the rniningindustry +,and it therefore rernains to
consider their rather vague allegation regarding public transportation, a
matter which wcas not raised in the Memorials.
Apart frorn the bare statement that the field of public transportation
is subject "to the effects of economic and social apartheid", Applicants
merely allege that the EiIotor Camer Transportation Act (S.A.) 5, as
Louw. AI.S:and Sadie, J.L.,"The Dynamics of Separate Development". South
Africn. The Roud Ahead, Spottiswoode, H. (Ed.)(Liov.1960), pp. gj-107, at pp. roo-
102*IV. P. 420.
Vide III, pp. 44-69 and Chap. TI, paras. 84-88, supra.
- +Ibid., pp.47-63 and Chsp. 11,paras. 73-83, supra.
"ct No. 39 of 1930in Statutesof theUnion of Soulh Africa 1930, pp:460-483
andfor amending Acts, vide IVp. 420,footnote 5.286 SOUTH \VEST dFRIC.4
amended, which is applicable to the Territory, "... establishes separate
transport services or, in certain cases, facilities for 'Natives', and discri-
minates by race in the use of public transportation" l.
This allegation does not correctly reflect the effect of the relevant
provisions of the Act. Far from directIy establishing separate transport
services or facilities for different groups, the Act merely empowers the
National Transport Commission and local road transportation boards-
which are independent administrative bodies-to issue motor carrier
certificates or exemptions subject to the condition that the vehicles
concerned be utilized only for the conveyance of a specificclass of persons,
or that portions of vehicles be setaside for the conveyance of such a class.
It is consequently the duty and prerogative of the Commission or a
local board to decide in every case, in the light of surrounding circum-
stances, whether a certificate or exemption should be issued subject to
the above conditions. The reasons why it \vas considered necessary to
confer this power on the Commission and local boards, are set out below.
20. Firstly, esperience has shown that tension is apt to occur tvhen
members of different groups are conveyed indiscriminately in the same
vehicle, or when rnembers of one group are conveyed in transport services
operated by members of another group. As an exarnple, it may be men-
tioned that the conveyance of Natives in Indian buses in Durban and the
resultant friction between the two groups were contributory causes of
the claslies as between Natives and Indians in that city in r949, in the
course of wllich scores of Indians and Natives were killed 2. It was con-
sequently deemed necessary to empower the administrative bodies con-
cerned to stipulate for separate transport services or facilities should
circurnstances so require.
In the second place, it has been considered necessary to have separate
services in order to asçist the Katives, many of whom are not able to
pay the same fares as metnbers of other groups. Throughout South Africa
the charges for public transport of Natives, on the one hand, and Euro-
peans, Coloureds and Indians, on the other hand, differsubstantially,
the cheaper service to Natives being made possible by the grant of sub-
sidies or loans from the Bantu Scrviçes Transport Account created under
the Bantu Transport Services Act 3.During the period 1957 to 1964 an
amount of Rg,82g.r74.40 was paid from this Account to local authorities
operating transport services for Natives '.
21. In South West Africa the only bus service for Europeans W+S
operated in Windhoek by the municipalitp from 1953 to 1960, but it
proved to be uneconornical and was terminated. In contrast, a municipal
bus service for Natives between Windhoek and the Native township
Katutura is still in operation although it runs at a loss. In1963 alone the
loss amounted to R8,882, which amount waç recouped from the revenue
account '.
22. In view of the contest in which Applicants refer to the Act, how-
ever, it would seem that their main objection is that the Commission or a
bcal board may grant a certificate to a Native who operates a transport
IV, p.420,footnote 5.
U.G. 361949. p. r5.
Act NO. 53 of 1957 in StatulO/the Union ofSoulhAlvica 13-77Part II (Nos.
45-83],PP 776-792..
' Departmental information. REJOIKDER OF SOUTH AFRlCA 287
service on condition that only Katives be conveyed by him. Respondent
concedes that the imposition of such a condition could have the effect of
limiting the sphere of operation of such a Native, but it is ako true that
the imposition of similar conditions on White, Coloured and Indian
operators, would produce e'cactly the same effect. In fact, section 13 (z)bis
of the Act provides specifically that in granting any application for a
motor carrier certificate the Commission or a local board-
"may give preference to an applicant who belongs to the same class
as the majority of the persons to be served by the transportation
service for lvhich a certificate is sought l".
This provision is in keeping with Respondent's general policy, already
outlined above of according priority rights in the econornic sphere to
members of specific groups in relation to their own areas or groups.
The sub-section enures for the benefit of Native applicants who, because
of limited financial resources. would hardly be in a position to apply for
the conveyance of Native passengers on the same footing as members of
other groups, unless some preference %vasgiven to them.
23.The above expositionshows that Reçpondent does not discriminate
unfairly against Natives in Soutti West Africa as far as admission to
employrnent and accesç ta vocational training is concerned. It suffices to
reiterate that Applicarits' generaI allegation that Respondent has closed
the skilled trades to perçons other than Europeans, is unfounded.
24. In regard to Applicants' reference to the section of the Reply
dealing with education in the Territory 3, Respondent refers to what has
already been stated in this connection 4.Applicants alço refer to certain
paragraphs of the aforementioned I.L.O. Proposed Deslaration dealing
with vocational training in the Republic of South Africa 5.In this regard
Respondent refers to what has been stated above 6, and, beyond saying
that there are adequate facilitieç for vocational training for al1 population
groups in South Africs. Kesponclent does not propose dealing with the
allegations in the said Yroposed Declaration.
C. MeasuresAllegedIy Having the Effect of
Compulsionto Labour
25. In this connection Applicants rely mainly on the provisions of the
Master and Servants Proclamation (S.W.A.) to subçtantiatetheir charge
that there exist in the Territory "measureç having the effect of compul-
sion to labour which involve racial discrimination"
Applicants' basic contention regarding the Proclamation iç formulated
as folows: "Penal sanctions for brcach of labour contracts illustrate the
dominance and prjvjlegc affordcd 'European' interests 9."
This section was inserted by Act So. 44 of1955. sec.11 (e) in Statuleoffhe
Union of South Africa 1955. Part1 (Eos. 1-55).p.454.
* Videpara. 10, supra.
' Vade IV,p. 421.
' Videsec. C and para. II. supra.
' Vide IV,p. 421,footnote 2.
Videparas. 3-4,supvn.
Proc. No. 34 of 1920 in TlieLaws of South West Africa 1915-1923 . ol.1, pp.
336-366.
IV, p. 421.(Heading sec.(2).)
Ibid.,p. 203.288 SOUTH WEST AFRICA
It appears on analysis that Applicants charge Respondent with having
subjected the interests of Native employees to those of their European
employers by providing for penal sanctions for breach of contract by
employees. This charge in its very nature imputes an improper motive to
Respondent. In the succeeding paragraphs the supporting material
offered by Applicants will be analysed with a view to showing that it
falls very far short of establishing such a motive on Respondent's part.
26. In the hlemorials l AppIicants created the impression that the
relevant provisions of the Proclamation apply onIy to Native servants.
In the Counter-Mernorial Respondent demonstrated that the Proclama-
tion isbasically applicable to al1persons,irrespective ofrace, and that it is
on1y in certain spheres of employmcnt that the legislation applies to
Natives only. An exposition was given covering, inter dia,the reasons for,
and the background to, the Proclaniation; the provisions enunng for the
benefit of servants; and the existence of similar legislation in other coun-
tries 2.
In the Replq-Applicants, while for the most part ignoring the exposition
in the Counter-Mernorial, concede that the Proclamation, as originally
enacted, "did not define 'Servant' in terms of race" 3. Applicants con-
tend, however, that the discriminatory nature of the Proclamation is
evidenced by the 1923 amendment which added to the definition of
"servant" certain categories of Native employees, and Say in this regard:
"Apart from this instance of explicit discrimination, it is signifi-
cant that those sectors of the economy in which the largest number
of 'Europeans' are employed in manual work are precisely those
which are not included in the original definition of 'Servant', but
which are included in the amendment of 1923 (which is specifically
confined to 'h'atives' employed in those sectors) 3."
In support of .their contention that the largeçt number of Eurnpeanç
who perform manual labour are employed in those sectors of the economy
which are included in the definition contained in the 1923 amendment,
Applicants rely on the 1961 Survey of Race Relatio?zsin South Africa 4.
This survey does not, however, bear out Applicants'.contention. At the
page quoted by Applicants, the Survey merely gives statistics of the total
number of members of the White, Coloured, Asian and Native groups
employed in certain economic sectors in South Africa 4.
It is not possible to establish from available statistics whether in South
West Africa more Europeans are at present employed in manual labour
in the said sectors of the economy than in others, or whether this was the
case in 1923, when the said amendment came into force; but Respondent
is prepared to accept that a relatively substantial number of Europeans
have at al1times been so employed. Respondent denies, however, that this
fact entitles Applicants to draw the inference that the amendment was
intended to subject the interests of Native employees to those of their
European employers.
AsexpIained in the Counter-Mernorial 5,the main reason for the amend-
l1,pp. 124-126.
III,pp. 81-89.
. IV, p.42 r.
South African Institutof Race Relations. A Surveyof Race Relations in South
Africa. 1961 (1962),compiled by l'iuriel Horrep. 219.
III,p. 83. REJOISDER OF SOUTH AFRICA 289
ment was the serious difficulty which had been experienced with private
contractors working for the Railway Administration, who failed to pay
the wages due to their Native servants. Since the Proclamation did not
apply, or at least was thought not to ripplp, to the relationship between
such contractors and their Native servants, there was, in the opiniori of
the Secretary for South West Africa, ". ..no means of dealing with such
cases except by Civil process which the native labourer is unable or un-
\ï7illingto initiate" l.
Since the unlawful withholding of wages from a servant constitutes a
criminal offence in terms of section 65 of the Proclamation l,the 1923
amendment ensured that adequate steps could be taken against con-
tractors who failed to pay wages due to their Native servants.
27. It istrue that, according to the explanation given by the Secretary
for Soiith West Africa, the amendment was alço conceived as a deterrent
against desertion bp Natives employed on a railway, but this does not
mean that the Iegislation was motivated by nny intention to discriminate
against Native ernployees. As is often the case with amending lcgislation,
the 1923 amendment was introduced mercly to meet the exigencies of an
existing situation, and since no trouble was experienced with European
and Coloured emplopees falling within the categories of servantsadded to
the originaldefinition, it was apparentlynot considered necessary to inake
the arnendment applicable to them. It should be observed, however, that
Europeans employed in manual work in the sectors of the economy
mentioned in the 1923 amendment, are subject to stringent disciplinary
measurcs as provided for in the Public Service Act (S.A.) 3 the Railways
and Harbours Service Act (S.A.)3 and the Municipal Ordinance (S.1V.A.) '.
In terms of these measures disciplinary punishment may be irnposed on a
European employee under a variety of circumstances, including cases
which constitiite criminal offences in terms of the Master and Servants
Proclamation. So, for instance, an employec is guilty of misconduct in
terms of section 17 of the Public Service Act if he " . ..disobeys, disre-
gards, or makes wilful default in carrying out s lawful order. . .or by
word or conduct displays insubordination. .." 5,or if he " .. .is negligent
or indolent in the discharge of his duties .. ." 6,or if he" . . .absents hirn-
self from his officeor duty without leave or valid cause" '. Perçons found
guiitv of a contravention of these provisions are liable to a fine, reduction
of emoiuments, or summary dismissal
28. Applicants aIso allege that-
"... Respondent's explanation of the background to the Iegislation
III,p. 83.
Act No. 54 of 1957in Stafutesofthe Udon of South .+flvica 19-57.art II (Nos.
45-53), pp. 794-859.This Act also applies to the Territory.
Act So. 22 of 19th inSiaiiltes ofthUnion of South Africa 1960, pp. 151-213.
This Act also applies tathe Temtory.
+ Ord. No.13 of 1963 in The Laws of South West Ajrica 1963, Vo1:XLII (1).pp.
138-488.
Act Xo. 54 of 1957, sec.17 (c) in Stnlulcsof the Union ofSouth Africn 1957,
Part II(Sas. 45-83), p.836.
Ibid. sec. I7 (d).
Ibid.sec. i7 (q), p. 840.
Ibid.. sec18(21).p. 546. SOUTH WEST APRICA
290
conclusively shows that it was in fact aimed at the members of the
'Native' group l".
In the Counter-Mernorial2 Respondent stated that, in order to appre-
ciate the necessity for the penal provisions of the Proclamation, regard
should be had to the conditions which existed in the Territory at the
inception of the Mandate and which, to a large extent, still exist today.
On the whole the labour class~swere poorly educated and haù very little,
if any, knowledge of legal principles governing contractual relationships,
this being especially tme of the indigenous labour class. In these circurn-
stances it was imperative that workers should be impressed with the
necessity of lionouring their contractual obligations towards employers.
Since the labour classes more often titan not had very small means, an
ordinary civil action for damages against a defaulting employee was
generally an illusory remedy. On the other hand, few employees had the
knowledge, or the funds, to institute legal proceedings against employers
for the enforcement of conditions of employment. It was consequently
considered to be in the interests of both masters andservants that penal
sanctions should be provided for certain cütegories of breach of contract.
Respondent failsto see how it can be said that this explanation shows
that the Proclamation "was in fact aimed at mernbers of the Native
group". It is conceded that the basic situation which the Proclamation
was designed to remedy, was to a large extent caused by the fact that the
majority of labourers were illiternte Bativcs with little or no conception
of the nature of contractual relationships, but it surely does not follow
that the legislation was "airned at" the Native inhabitants of the Terri-
tory. The Proclamation was directed at breach of contract by master and
servant alike, and not at any particular population group.
29. Ry stating tliat". ..the Ad Hoc Committee on Forced Labour had
no difficulty in weighing the effect and the character of such legiç-
lation ..." l,immediately after Iiaving made the allegation deslt with
above, Applicants create the impression that the Committee made a
finding that the Proclamation is "aimcd at" members of the Native
group. No such finding was, in fact, made by the Committee.
In support of their statement Applicants refer to paragraphs 352 to
360, and 372 to 375 of the Cornmittee's report. In the first-mentioned
paragraphs the Committee dealt with allegations regarding the compul-
soty nature of labour contracts for non-Ezlropeans,and more specifically
with allegations that under the South African Native Labour Kcgul t' a ion
Act 4,which does not apply to South IVest Africa, a breach of a labour
contract by a Native employedon any mine or work is a criminal offence 5.
For reasons which are not relevant this Act applies only to Native
labourers. Because of the nature of the allegations examined by the
Committce, no reference was made to the South African Aiaster and
Servants Acts, which apply to al1servants irrespective of race. As regards
the Native Labour Regulation Act, the Committee merely concluded
1IV, p.421.
2III, pp. 82-83.
IV, 1'. 421footnotero.
Act No. 15 of 1911 in Statules of Ihe Unionof South Africa 19x0-19x1p,p.
528-556.
3International Labour Office, Reporojthe Ad Hoc Cornmitteeon Forced Labour.
El2431 (1953)p. 76 (para. 3521readwith p.72 (para. 330). REJOINDHR OF SOUTH AFRICA zgl
that ". .. legislation of this kind,ifabused or vigorously implemented,
might lead to a system of forced labour for economic purposes" l.
In paragraphs 372 to 375 of its report the Committee was obviously
referring to South African pass legislation, and not to any legislation
providing for penal sanctions for breach of contract 2.
As regards South West Africa, the Committee had to examine an
allegation concerning "compulsory labour imposed on iltdigenous
workers" 3.The Cornmittee's finding on this allegation \vasexpressed to
be the same as that reached in thc case of South Africa 4,Le., the con-
clusion quoted above.
It is clear, therefore, that the Cornmittce did not find that the Master
and Servants Proclamation "was in fact aimed at the members of the
'Native' group"
30. Applicants also reIy on the I.L.0. "Programme" in which it was
found, with respect to the South African Master and Servants laws,
that-
". .. provisions for penal sanctions for breaches of contract of
employment, although not limited to 'native' workers, are in practice
applied ovenvhelmingly to such workers G".
The compilers of the "Programme" presumably intended merely to
convey that the great majority of servants found guilty under the
provisions of the said laws, were Natives. The fact, however, that more
Natives than rnembers of other groups are convicted under any specific
law, does not show that the legislation was "aimed at" Natives, in the
sense that tlie legislature intended to discriminate against them.
31. In the hlemorialç Applicants did not in this regard refer to the
Permanent Mandates Commission. In the Reply, however, they allege
that the Commjssion, "was hjghljr critical of the Master and Servants
Proclamation" ',and in support of tliis allegation they quote the remarks
of a hlr. Grimshaw relative to the said Proclamation, kvhereby the im-
pression is naturally conveyed that Mr, Grimshaw was a member of, or
spoke on behalf of, the Commission. This was, of course, not the case:
Mr. Grimshaw was not a member of the Commission, nor did he speak on
its behalf.He attended the Fourteenth Session of the Commission as the
representative of the International Labour Organisation The Corn-
mission itçelf did not express objection to the legislation in question.
32. In further support of their contention that the penal sanctions for
breach of labour contracts provided for by the Proclamation "iilustrate
the dominance and pnvilege afforded 'European' interests" 9,Applicants
quote the following extract from a report of the I.L.O. Ad HOC Com-
mittee:
' Ibid., pp79-ScL(paras. 372-375)I.,p. 436 read with p.294.(paras. 349-351).
IV3 fbid., p. 80 (para. 37IV,p. 437. (Italicadded.)
' fbid., para375.IV. p.438.
' Videpara. 28. supra.
IV.P. 421.
' ~bid. , 422.
P.M.C., Mira.,XIV, p. rr.
Videpara. 25, supra.292 SOUTH WEST AFKICA
"There can, liowever, be no doubt, in the Cornmittee's view, that
the fact that it is impossible for the worker to terminate his contract
unilaterally before the expiration of its term, without mnning the
risk of heavy penalties, constitutes a serious restriction of his
persona1 Liberty l."
In al1civilized legal systems known to Kespondent, an employee who
has bound himself to periorm services under a contract is obliged to
honour that contract, and to that extent voluntarily imposes restrictions
on his personal liberty. A breach of a contract of service may render
the worker liable to civil sanctions, e.g.,a claim for damages. Respondent
has already explainecl why in the circumstances of the Territory it was
considered advisable to introduce criminal sanctions to prevent breaches
of contractual obligations of service 2. Such sanctions serve as an addi-
tionai deterrent to prevent an employee from doing what he is in any
event not entitled to do in law, viz., to break his contract. In no way can
such sanctions, in Respondent's subqission, be regarded as illustrating
any "dominance" or "privilege afforded 'European' interests" 3.
33. The Committee's further reasoning that the Master and Servants
laws of South Africa and the Terriroty ". . . if abused or vigorously
implemented, might lead to a system of forced labour for economic
purposes" l,is also somewhat difficult to understand. The enforcement
of legal obligations voluntarily undertaken by employees cannot, in
Respondent's submission, fairly be regarded as the implementation of a
system of forced labour. It is pointed out furthermore that neither
Applicants nor the Cornmiltee has furnished proof that the said laws are
in fact "abused or vigorously implemented".
34. According to Applicants the following comment of a member of
the South African Parliament with respect to proposed legislation to
implement influx control, "is equally applicable to penal sanctions for
breaches of contract": "It is a cardinal principle except in a sIave
country, that the labourer may go where the paÿ is highest 4."
In the context in which this comment is quoted by Applicants, it is
apparently offered as no more than a rendering of the same view as that
of the I.L.O. Ad Hoc Committee, discussed above. It is of course true
that, generally speaking, a labourer should be free to go where the pay
is the highest, but this is the first time that Respondent has encountered
a contention, senously advanced in n court of law, that the labourer
should, to this end, be permitted to break a contract of employment to
which he hasvoluntarily bound hirnself.
35. Applicants' charge that the Proclamation subjectç the interests of
Native employees to those of their European employers, ignores the
provisions of the legislation which enure for the benefit of the employee.
In the Counter-Mernorial Respondent enumerated the circumstances
under which an employer commits an offence under the Proclamation,
lInternational Labour Office, Repovtofthe Ad Hoc ConzmitleeoizForced Labour.
El2431 (rgj31,P.77 (para. 360).
Vide para. 28,supra.
VI rnay be noted that of theIIO mernbers ofthe I.L.O., onIy14 have thus far
ratified The Abolition of Penal Srsnctions Convent1955(No. 104).VideInterna-
tional Labour Conventions: Chart of RatificationsI June 1964.
+IV, p.423. REJOINDER OF SOUTH AFRICA =93
e.g.. withholding of wages, failure to pay damages,etc. l Respondent also
drew attention to some of the other sections of the Proclamation which
were designcd to protect the interests of servants, cg., provision for
gratuitous legal representation of a servant on appeal, for cancellation
of contracts of employment by the court, etc.
Applicants' only reference to Respondent's exposition of the above-
mentioned provisions of the Proclamation is to be found in a footnote
where they state:
"\Vith respect to Respondent's contention that the Master and
Servants Proclamation inures equally to the benefit of the rnaster
and the servant, it is noteworthy that an employee thereunder is
guilty of an offence if he cornmits certain breaches of contract
'without Lawjul ca.rrsel... whereas the employcr must not commit
certain acts 'without reasonnblsand @ohablecause for believing' that
hisaction isjustified. Thus, in certaininstances an employer may have
recourse to the criminal courts for enforcement of a labour contract,
even in cases of misunderstanding or disputeas to the terms thereof;
on the other hand, the employer may be convicted only if he acts
'unreasonably' 3."
Applicants' inference frorn the difference in wording of the various
provisions of the Proclamation is unjustified. In a decided case 4,the
correctness of which has not been questioncd by the Courts, it was held
by a Division of the Supreme Court of South Africa in regard to legis-
Iation of the kind here in issue that the expression "lawful cause"
covered a bona fide misunderstanding on the part of an employee as to
the terms of his contract of employment.
36. In emphasizing the alleged "dominance and privilege afforded
'European' interests" by the Proclamation, Applicants seem to be under
the impression that only White employers can avail themselves of the
penal provisions relating to servants. This is a misconception. In terms
of section z of the Proclamation "Alaster" means any person ernploying
for remuneration a person falling withing the definition of "servant".
It follows that Native and Coloured employers are accorded the same
rights, and are subject to the same obligations, as European employers.
37. Apart from the Master and Servants Prociamstion, Applicants in
thc present context also refer to the pass laws applicable to the Territory,
and to section r4 of the Vagrancy Proclamation of 1920 5, in terrns of
which a first offender may in lieu of the prescribed punishment be ordered
to do service on public works, or to enter into employment with .a
rnunicipality or a private person other than the complainant. The
relevant statutory provisions are also referred to by Applicants in the
part of the Reply headed Seczcrityof the Person, RigAts of Residence and
Freedom of Moveme~a , and wili be dealt with by Kespondent in answer
to the allegations made undei the said heading 7.In particular as regards
III, p.83.
* Ibid.p,p.83-84.
IV, p.421.footnote i 1.
* Rex v.Magosane and Ofhevs,1937 Griqualand t'estLocat Division, p. 47.
Vide also R.v. Ramakau, 1959 South ..lfrican Law Reports, Par4, p.642.
IV,p. 423.
Ibid., pp458 ff.
' Vide sec. 1. infra. SOUTH WEST AFRICA
294
section 14 of the Vagrancy Proclamation, it will be sho\vn that, in
deference to the views of the Permanent Mandates Commisçion, orders
compelling offenders to take up employment with a private person have
not been made for many years l.
38. Finally, Applicantç suggest that the practices relating to the re-
cruiting of northern Natives have the effect of compulsion to labour.
They allege in this regard tliat-
". .. a perusal of Kespondent's description of the operation of the
labotir recruiting system ... reveals that the contract offerecl is a
standard contract, tbat the prohibition on recruiting by individual
employers eliminates al1 possibility of competition between em-
ployer~ in the labour market, that the restrictions on entry into the
Police Zone make it t?irtuallyin-ipossiblefor a labourer from outside
the Zone to obtaiii employment through his own effort, or otherwise
than through S\frAKI,A, siid that the choice is therefore between
accepting the standard contract or remaining unemployed Z."
It is obviouç that Applicants have misread Respondent's exposition of
the recruiting system 3.The fact that only New S.W.A.N.L.A is entitled
to recruit labourers in the northern territories, does not eliminate "al1
possibility of competition between employers in the labour market".
Prospective employers inforrn New S.W.A.3T.L.A of the wages they are
willing to pay, and theiroficrs are then transmitted by the organizntion
to prospective einployees. Although the contracts entered into by northern
Natives are of standard form-as regards general conditions of einploy-
ment-the wages to bc paid by ernployers are not standardized, Savethnt
a ?ninimum wage is prescribed 4.It foIlows that the existing system does
allow for competition bettveen prospective employers.
Respondent fails to understand how it can be said thatthe pnss systcrn
applicable to northern Natives "make[s] it virtually impossible for a
labourer from outside the [Police] Zone to obtain employment through
his own effort". There is nothing to prevent a Native from applyirig to
the Bantu Affairs Commissioner for an identification pass to enable him
to proceed tothe Police Zone to take up employment. It is true that very
few Katives apply for such passes, but this is due tothe deçided advan-
tages of the present recruiting system for the northern Natives who seek
to take up employment in the Police Zone. As mas pointed out in the
Counter-Mernorial 5, the recruiting system provides northern Kstives,
free of charge, with an avenue through which they can find employrnent,
which, if left to their own resources, cornparatively few woulcl be able to
obtain.
With a view to assisting northern labourers further, liespondent is
at present contemplating the establishment of a labour officeat Ondangua
in Ovamboland. Thiç officewilt initially concentrate on assisting Natives
who wish to proceed on their own to the PoIice Zone in order to take up
employmen t there. -
1 Vide sec. 1, infre.
* IV,p. 423,footnote r.
111,pp. 72-73.
' Videin this regard Chap. II. para44-46.
III, p.73. REJOINDER OF SOUTH AFRICA
D. Freedom of Association and the Right to Organize
39. In the Memorialç reference was made by Applicants to some of
the provisions of the Wage and Industrial Conciliation Ordinance of
1952 (S.W.A.) concerning the registration of trade unions and conciliation
of industrial disputes. Applicants drew attention to the fact that the
Ordinance does not provide for the registration of Native trade unions
or for conciliationofdisputes in tcrms of Chapter IIof the Ordinance in
so faras Native employees are concerned '.
Respondent in the Counter-hfemorial pointed out that prior to
x Aupst 1953, when the Ordinance came into force, there were no
trade unions whatsoever in the Territory, and that ai present there are
no Native trade unions, altliough there iç no statutory provision which
prevents the formation of such unions. Kespondent explained tfiat Native
trade unions are not recognized by the Ordinance for the purposes of
Chapter II thereof, because of a danger that the interests of Native
workers, if left to the protection of trade unions, could be neglected, and
that such workers could be exploited by uriscrupulous individuals. Since
a large proportion of al1Native employees are illiterste or semi-literate,
they have littie or no understanding of trade unionism and have conse-
quentIy not yet reached a stage where ttiey csn partake in collective
bargaining on an equal footing with their ernployers. For this reason the
Ordinance provides that an inspector may attend any meeting of a
Conciliation Board and takepart in its proceedings whenever thc interests
of employeeswho are not represcnted on the Board, are under discussion.
40. In the Reply Applicants refer to views expressed by the Com-
mittee on Freedom of Association of tlie Governing Body of the I.L.O. to
the following effect :
". . . discrimination against African workers (with respect to the
right to organize) is .. inconsistent with the principles that workers
without distinction whatsoever should have the right to establish
and, subject only to the rules of the organisation concerned, to join
organisations of their own choosing without previous authorkation
and that al1workers' organisations should enjoy the right of collec-
tive bargaining 3".
Applicants also say that the I.L.O. "Programme" supports this view '.
It is clear that the said Committee, like the compilers of the said
"Programme", started from the premise that any differentiation on a
group basis \vas impermissible as being in conflict with generally accepted
principles or standards. In this connection Respondent repeats what has
already been stated in regard to the relevance of such principles or stan-
dards, and to the fallacv of seeking to apply them to al1conditions irre-
spective of the special circurnstances of a particular country or area.
41. As indicaied above 5, Reçpondent dealt in the ~ounter-~ernorial,
with the reasons why no official recognition is as pet given to Native
trade unions. Applicants' response thereto is as follows:
". . . the reasons advanced by Respondent for its restrictive policy
1, pp. 129-130.
111pp. 92-93.
IV,p. 423. -
Ibid.p. 424.
Para.39, supra.296 SOUTH WEST AFRICA
should cal1 for encouragement, training, and fosterjng of partici-
pation by 'Natives' as representatives of 'Native' workers, rather
than the converse l".
Respondent submits that Applicants do not squarely face the reality
of the situation,viz., that the Native inhabitants of the Territory have,
as a whole, not yet reached a sufficiently high level of development to
appreciate the tme meaning and purpose of trade unionism, and that the
advance, the interests of Native workers. a stInemthis regard Respondent
dram attention to developments in other African territories where it
has been sought to introduce trade unionisrn among people not suficiently
mature to ensure its proper operation. Thus it wasstated in 1964of trade
unions in Zambia (formerly Northern Rhodesia) :
"Trade Unioniçm iii Northern Rhodesia is reaching farcical pro-
portions. Ahost every day there are reports of a new trade union
which has just been formed with 15,zo or 25 members. It takes a few
weeks, and these unions are dead, but there are always others to
replace them.
The majority of industries have two or even three splinter unions,
constantly at loggerheads.
At present, registered organizations include a Charcoal Burners'
Union, a Fishemen's Union, Hunters' Union, two Farming Unions
and t~o llineworkers' Unions, constantly at each other's throats.
There was even a short-lived Loafers' Association-a union for
the unemployed.
Officialparent body of trade unions in Northern Rhodesia is the
United Trades Union Congress, which claims 15 affiliated and more
than roo,aoo members. But the UTUC, as it isknown, certainly
does not present a united frontfor affiliate members to follow.
each claiming the right to lead the trade union movement in North-ons,
ern Rhodesia. These arguments reached such ridiculous propofiions
other and clairnedleadershipye....*"e executive leaders fired each
The same source quotes a Kitwe newspaper to the following effect in
regard to conditions in thesame country:
"There is hardly one trade union that has any sense of direction.
Neatly al1of them are going round in IittIe circles with their eyes
fixedfirmly on the ground.
There is hardly a trade union that is workirig for the workers.
Muchmore time is spent in jockeying for top position.
Leaders of rival unions spend most of their time condemning each
other. As a result they cannot show a united front. Yet, they want
respect from their members and espect ernployers to agree to their
claims.
The trade unions have been and are being led largely by a bunch
of disorganiçed leaders, some of them self-styled. This cannot
continue =.''
Dr. V. L. Alien, who was commissioned by the International Labour
IV,p. 424.
The Natal illevcur20 Aug. 1964. REJOINDER OF SOUTH AFRICA 297
Organisation to make an intensive study of trade unionism in East
Africa in 1959 , ade the following observations after he had compIeted
his investigations : ,
"They [thetrade unions] are trying jto practise interna1 dernoc-
racy-which requires an informed as weli as literate mernbership-
with workers who are iliiterate. Little wonder that so many of the
East African unions have large paper memberships and few regular
dues-payers; that the officials are often ovenvhelmed by the size of
their tasks aiid are preoccupied with the task of balancing accounts
which will not balance; and that the financial position of so many
unions is so precarious that they cannot themselves afford to pay
the salaries of fulltime officiaor even the costs of siniple administra-
tion, and are incapable of withstanding the shock of strikcs or lesser
strains '."
42. It may be significant, also, that in the Applicant States trade
unionism does not seem to have advanced beyond the infancy stage-
no doubt not because of any disinclination to promote the welfare of
workers, but probably because of prevailing standards and levels of
development. Thus it has been said in regard to Liberia:
"... Liberia cannot yet be snid to have a genuine trade union
movement .. . In general, the workers of the country-particularly
those from the tribal areas-are neither interested in trade unions
nor do they possess the skill and esperience needed for organizing
them 2."
And :
"No active trade unions are in existence in Liberia ... In the past,
the two principal labor union movements in Liberia were initiated
by the Labour Union of Liberia, founded in 1949, and the Labor
Congress of Liberia, founded in 1954. The two movements had,
successively, the endorsement of President Tubman, but neither
had the personnel or financial resources to organize Liberian workers
effectively. The Yresident General of the Labor Congress of Liberia
left the countryearly in 1958 eaving the labor movementdormant 3."
In regard to Ethiopia the position has been stated as follows:
"Labor unions as such do not esist in Ethiopia proper with the
exception of an organization of workers of the Franco-Ethiopian
Railway which has an estirnated membership of 2,500,rnostly in and
around Diredawa 4."
And :
"Actually, hosvever, the government has discouraged labor
organization and generally has been prompt in subduing strikes by
military or police force. The only forma1 labor organization in
Ethiopia proper is the Ethiopian Railroad Workers' Syndicate,
whose limited goals are confmed mainIy to welfare matters 5."
-.
1 Allen,V.L., "Srade Unionism inEast Alrica", in Free LabouWorld,May 1962.
pp. 164-166,at p. 165.
Taylor.W. C.. The Firesfone Operulions in Liber(1956) ,p. 35-36.
3 U.S. Department of Labor. Laborin Liberia (May 1960). pp. 15-16.
+ United States Department of Commerce. "EstablishingaBusiness in Ethiopia".
World Trade Ilrformation Service-Economic Reports, Part1. h'o. 59-16, p7.
Lipsky. G. A.,Ethiopia: Its People, Its Society, Its Culture (1962)280. SOUTH WEST AFRICA
295
43, Applicants also charge Respondent with having left "[tlhe con-
ditions of the employment of 'Natives' ... entirely to the judgment and
management of members of the 'European' group .. ."l.This charge is
presumably based on the factual situation that a European inspecter
represents the interests of Native employeesin proceedings of Conciliation
Boards, the members ofwhich can be only European or CoIouredperçons.
This would explain Applicants' aiiegation that-
"[tlhe terrns and conditions of work of 'Xatives' are left to the dis-
cretion of officials of a government in which such workers have no
representaiion. and to conciliation by Conciliation Boards composed
of persons drawn entirely from 'groups' whichRespondent's basic
policy distinguishes and separates from 'groups' of which 'Native'
workers are mernbers l".
Respondent has already explained why the present system is con-
sidered more beneficial to Native workers than a systcrn of 'trade-
unionism would be at yresent, and it is not necessary to repeat what has
been said in this regard.
Respondent is, however, not opposed to allowing Native employees a
greater degree of participation in proceedings of Conciliation Boards,
should it be in their interests to do so. In South Africa legislation intro-
duced in 1953ensures that the interests of Kative workers are adequately
represented in proceedings of Industrial Councils. The Native Labour
(Settlement ofDisputes) Act of that yearmade provision for the creation
of a Central Native Labour Board, Regional Native Labour Comrnittees
and Native Works Committees. The latter Committees are elected by
Xative employees, and whenever a labour dispute arises in an area where
a ll'orks Committee has been established, the Regional Committee for
the areas must consult such Works Committee in regard to the dispute.
If the Regional Committee, with the assistance of a NativeLabour Officer,
cannot effect a settlement of the dispute, the matter is referred to the
CentralNative Labour Board. If the Board also fails to settle the dispute
the matter is reported to the Minister of Labour, \vho may refer it to the
Wage Board for recommendation.
It is also pointed out tliat, whenever an Industrial Council proposes to
determine conditions of employment to be incorporated in an agreement
under the Industrial Conciliation Act in respect of an industry, trade or
occupation in an area where Natives are employed, a representative of
the Native Labour Board and the chairman of the RegionaI Committee
of the area concerned are entitled to attend the meeting of the Council
and to takepart in the proceedings.
Respndent is at present giving consideration to the question of
enacting for the Territory legiçlation similar tothe South African Native
Labour (Settlernent of Disputes) Act. In Respondent's view such legisla-
IVi p. 424.
III, pp.91-98and vide para.39,supra.
' Act Xo. 4S of 1953 inStatutcsof theUnion of South Ajrica1953,pp. 276-326,
as amended by Act So. 59 of 1955 inStatulesofthe Union of South Africarg55,
Part II (Nos.56-70) and Act No. zS of 1956 in StatulestheUirion of SoutAfrica
r956, Part 1(Nos. 1-47)p,p.519-753,
' Act Xo. 28 of 1956 inStatutes of the UnioofSouth Africa 1956,Part 1(h'os.
1-47)PP.519-753. REJOINDER OF SOUTH AFRICA z99
tion will at present serve the interests of Native labourers far better than
would the formalrecognition of Native trade unions.
44. Applicantç have proceedéd from the prernise that the Native
workers of the Territory have reached such a degree of development
that they can to advantage take part in organized trade unionism.
Applicants have, however, not furnished proof to substantiate their
premise, or to show that, in the present circurnstances, "[aldministrative
action by government officials can be no substitute for collective bar-
gaining ..." l.
45. In view of what has been stated, Respondent submits that Appli-
cants have failed toshow that the poIicyunderlying the Wageand Indus-
trial Conciliation Ordinance "is repugnant to the positive obligations
contained in Articlez of the Mandate" lOn thecontrary, this policy was
conceived and infact serves to promote the interests and progress of ali
the inhabitants of the Territory. CHAPTER V
CONCLUSION
I. In concluding the section of the Reply dealing with the economic
aspect, Applicants Saythat they have demonstrated that-
"... Respondent's policy of economic aparlheidis inconsistent with
the hlandate in that it degrades and #rustrateswhaf Respondent is
obliged tofiromte l". (Italicç added save for the word "apartheid".)
And they Saythat such a policy is-
"... inherently inconsistent by creating an endless series of circu-
larities, which, interwoven with the educational, political, and civil
policies of apartheid,aggravate the conditions asserted as justifying
the policiesthernselves l".
In effect, therefore, Applicants claim to have eçtablished the charge
which they originally made in the Mernorials and repeat in their intro-
duction to the economic aspect in the Keply, viz., that Respondent's
economic policies and practices are inspired by improper motives2.
Respondent's reply to this contention is that the expositions furnished
by it in the Counter-Memorial and in this Rejoinder with regard to its
policy in general, and with regard to the specificpractices and measures
which form the subject-matter of Applicants' charge, effectively dispel
any suggestion that in its administration of the Territory it is actuated by
irnproper motives with respect to the Native inhabitants-the section of
the population to which Applicants refer in particuiarizing the substance
of their charge 3-or with respect to any other population group.
The high-water mark of the factual averments established by Appli-
cants is that implementation of the poIicyof separate devebprnent has
the practical effect that in certain respects members of the different
populatioii groupsare subject to particular disabilities and disadvantages.
This however, cannot lcadto the inference that Respondent's policiesand
practices are inspired by improper motives. Respondent has not con-
tended that the system of separate development operates without dis-
advantages. Indeed, Respondent has itself drawn attention to certain
disadvantages 4.But, at the same time, Respondent haç advanced the
contention, which is repeated here, that the issue is not whether, dis-
abilities and disadvantages euist, but whether from the factual situation
as a whole, seen in the light of Respondent's declared policy and the
steps which have been taken in effectuation thereof, the conclusion can
be drawn that Respondent's conduct istainted with mala fides.1t issub-
mitted that, far from that being the case, the record indeed establishes
the very opposite. Respondent has demonstrated, not only by reference
IV, p.424.
2 Vide Chsp. 1,paras. 1-5,supra.
4 Videdsec. E, supra.,supra. REJOINDER OF SOUTH AFRICA 301
to its declared intention, but also by an exposition of the factualsituation,
that its policy of separate development is directed at the advancement
and ultirnate self-reahzation of each of the population groups of the
Territory in al1 spheres-political, economic and social-on a bais of
territorial separation. It is Respondent's bona fide belief that such a
policy offers the only practical and permanent solution to the problem
which ariçes from the fact that there are in the Territory various popu-
lation groups of differentethnic origin, with different cultures, languages,
levels of development and habits of thought. ft is this basic situation
which makes it inevitable that some disadvantages must attach to any
policy directed at promotion to the utmost of the well-being and progress
of all concemed. The alternative course suggested by Applicants, viz.,
the total integration of the different groups in al1 sphereç, as if tliey
constituted a homogeneous society, is in Respondent's opinion wholly
unrealistic:it would not only lead to endless animosity and stnfe, but
must eventüally result in the dominance of majority groups over others,
and probably also in the withdrawal of the more advanced group, the
European group, from the Territory.
In Respondent's submission nothing has been advanced by Applicants
which could persuade any person, viewing the situation objectively and
without bias, that, on the whole, the course advocated by Applicants is
preferable to the course followed by Respondent. Indeed, the very
evidence tendered by Applicants in concluding their treatment of the
economic aspect-which evidence will be dealt with in the succeeding
paragraphs-reflects the type of proof furnished by them throughout the
piece, viz., expressions of opinion by persons who do not have a proper
understanding or appreciation of Respondent's policies, or who, in their
evaluation thereof, approach the subject with predetermined biaç, or who
are prepared to express condemnation rnercly by looking at particular,
and sornetimes minor, aspects of apparent disndvantage without regard
to al1facets of administration and without regard to the broad objectives
involved.
2.As critical comment on Respondent's economic policy Applicants
cite apassage from a speech made in 1963 by Mr. S. G. Menell, Chairman
of the Anglo-Transvaal Consolidated Investment Company Limited, in
reviewing the said company's activities over the previous financial year
in which he dealt, Gder alia, with the problem of meeting a shortage of
skillèd labour in industry in South Africa. For preçent purposes it is
unnecessary to enter into a detailed discussion of everything said by
Mr. Menell on the subject. Apart from what is cited in the Reply, he,
inter alia, drew attention to the Government's policies of encouraging
immigration of skilled workers from other countries and training of semi-
skilled South African ïvorkers, which he described as "desirable policies
being energetically pursued by the Government" l,and he considered
that "industrialists, must finda solution by applying fresh and energetic
thinking to this problem" l.What is important for present purposes is
that Mr. Menell immediately thereafter proceeded, in the part of his
statement quoted by Applicants, to criticize present economic policies
in South Africa on the ground that an abundance of unskilled labour
and the limited application of,methods of collective bargsining in South
Africa "work against changes in present employment policies" and
1 Financial Mail. 13 Dec. 1963p. 887.3'32 SOUTH WEST AFRICA
"tends to restrict the wage-earning and spending power ofthe community
and thus its economicgrowth" l.
This criticism is voiced by Mr. Menell without apparently giving
thought to the considerations which gave rise to such policies. Evidence
of this nature tendered by Applicants can, in Respondent's submission,
have no value in the present enquiry.
3. Another "noted authority" cited by Applicants is Professor de
Kiewiet, whose views are also referred to elsewhere in the section of the
Reply dealing with the econornicaspect 2.
Respondent has already demonçtrated that Professor de Kiewiet's
condemnatory statements regarùing al1aspects of policy in South Africa
do not arise from objective thought but are based on a misconception of
Respondent's policies, and are clearly inçpired by predetermined bis.
No purpose would therefore be served by giving consideration to his
sweeping and emotionally charged statement cited by AppIicants in the
present context Save to say that ithas no factual basis.
4. In view of whathas been stated in this and the aforegoing chapters, .
Respondent denies Applicants' charge that "[apartheid] reflects and
assures domination of the rnany by the few, of the underpnvileged by
the privileged, of the ward by the guardian" 4. Upon an objective
appraisal it wvillbe clear that Respondent's policies are indeed aimed at
the very opposite end, viz.,that no section of the community, be it the
majonty or the minority, should stand in a position of dominance over
the others, but that each section or group should develop on a basis of
territorial separation toultirnate self-realization.
It sufficesto Saythat Respondent denies Applicants' concludingcharge
tliat "[a]partlteid is based upon a fundamentally unacceptable series of
major premises, ~vhichare wholly incompatible with the spirit and the
letter of Article 22 of the Covenant and Article 2 of the Mandate" 4,
and denies that it has in any way violated its obligations under the sajd
Articles.
lFinancial Mail, r3 Dec. 1963, p.887. and vide abo IV, p.425.
IV, pp. 406 and 413.
Vide Chap. 11.paras. 9and 93-94, supra.
' IV,p. 425. Sectioti1
Security of the Pcrso~i, Riglits of Residence and
Freedom of Movcment
INTRODUCTION
I. This section of the Rejoinder deals with Applicants' charges in
part 4 of Chapter IV B.3.c of the Reply concerning Security ofth8Person, .
Rights ofReside?tceand Freedom ofhloveme?tt.
z. In the Jlemonals Applicants purported to demonstrate that certain
statutory provisions and administrative policies and practices relative
to the said matters create ". .. a pattern of comprehensive, pervasive
and tight control over the livcs of the 'Native' population of the Tem-
tory" l.After dealing separately with each of the said three subjects,
Applicants advanced the general concIusion that the measures concerned
were arbitraryand deliberately op~ressive of the Native inhabitants of the
Territory 2. In summarizing the factual situation as described by them
Applicants stated that Respondent-
". ..ha[d] givenconsideration solely to the convenience or advantage
of the hlandatorp government and of the 'European' citizens and
residents of the Territory3",
and
". . . ha[d] folIowed a spstematic course of positive action which
thwartred] the well-being, inhibit[ed] the social progress and fms-
trate[d] the development of the great majority of the population of
the Territory in vital and fundamental aspects of their lives 4".
3. In the Counter-Memorid Respondent devoted a separate chapter
to each ofthe subjects here under consideration 5,and dealt systematic-
ally with each measure mentioned by Applicants, with reference to its
content and the historical, ethnologicnl and socio-economic factors that
gave rise to it. Respondent thus demonstratcd, in its snbmission conclu-
sively, that the measures concerned were neither arbitrary nor oppressive,
as alleged by Applicants, but, on the contrary, were aimed at the pro-
motion of the weil-being and progress of al1the inhabitants of the Terri-
tory, including the Natives, and iiideed have had that effect.
4. In the Reply Applicants do not rest their case solely on the charge
advanced in the Mernoriais, but, in conformitywith the attitude adopted
by them relative to other aspects of government 6,they now seek to rely
l 1.P. 134,
Ibid.pp.151-152.
Ibid. p.151.
' Ibid. p.152.
As to Security of thPerçon. vide IIIpp. 197-230 ;s toRighh of Rffiidence,
ibid., pp231-297; astoFreedom of Movernent. ibid., pp. 298-338.
Vide sec.B, paras.7-10. si4pva.3O4 SOUTH WEST .+FRIC-4
ais0 on a new cause of action. The Iegal basis of their case as now pre-
sented appears clearly from their "Legal Conclusions" l read with their
preceding "Statement of Law" 2.
Inthe first place, Applicants "reaffirm the Legal Conclusions set forth
in the Rlemorials" '.In effect, therefore, Applicants repeat their charge
of unfair discrimination against, and oppressive treatment of, a particular
population group in the Tcrritory, viz., the Native inhabitants 3.
Secondly, Applicants now contend that Respondent's policics and
practices "in respect of security, equal rightsand opportunities in respect
of home and residence and protection of basic human rig11ts"-
"... constitute measures of implementation of the policy of npart-
heid, which in itself violatesArticle 2, paragraph 2 of the Mandate,
by veason O#the factthat it allotthe sfalus,rights,duties, opportztnities
and burdens O#the population on the basi sf membership in a 'group',
or colour, rather than on the basis of individual quality, capacity or
potential l."(Italicsadded.)
Thus Applicants apply aiso to this aspect of the case their newly
formulated legal .nom of "non-discrimination or non-çeparation", in
accordance with which it is contended that any differentiation on the
bais of membership in a group, class or race is in itself a violation of
Respondent's obligations to promote the well-being andprogrcss of the
inhabitants of the Territory 4.
5. Respondent ha5 already demonstrated, conclusively it is submitted,
that no such legal norm is embodied in the Mandate, or is otherwise
binding on Respondent 5. And inasmuch as Applicants do not in the
present context advance any independent or further argument in support
of the existence of the alleged norm, it is unnecessary to üdd anything
to what Respondent has aiready stated. It may, houTever,be convenient
at thisstageto refer to certain statements made by Applicants in applying
the said norm to the factual situation regarding the aspects of the case
now under consideration. This is done in the following paragraphs.
6. In the first paragraph of the section of the Reply under considera-
tion Ap-l-cants say that in the Jfemorials they-
". . .summarize[d] the interlocking statutes, regulations, decreeç,
orders and administrative policies and practices by which inhabi-
tants of the Territory, solely on the basis of their 'group', tribe or
color, are subject to restrictions on their security, rights of residence
and freedom of movement 6".
And they say further that-
"~eçbondent admits the dec.ç. ... reIevant fact that such leeis-
lative~&d adrniniçtrative policieç aid practices are based upon the
pervasive premise of differentiation according to 'group' 6."
While it is truethat many of the measureç reierred to by Applicants
in the Memonals with regard to Secztrityof fhePerso~z, Rights ofResidence
l IV,p. 475.
Ibid.. PP473-475.
Vide para.z, supra.
Ibid.and sec. A. paras. 7-10. supra.
' Vzde sec.B, supra.
IV,p. 45% REJOINDER OF SOUTH AFRICA 3O5
and Freehm of Movemant, differentiate on the baçis of mernbersliip in
a group, this, as has been shown in the Counter-Memorial l,and as will
again be pointed out in the next succeeding chapter Z, is not tme of al1
such measures.
7. Another statement repeatedly made in the section of the Reply
under consideration is that Reçpondent's measures and policies in ques-
tion involve that "... al1 'Natives' are to be treated alike, whatevertheir
individual merit, cafacity or $otential" (italics added); that al1 inhabi-
tants are classified "... on the basis of 'group' or tribe, ignoring indivi-
dclal înerif orneed 4" (italics added) ; and that ". . .individuals are cate-
gorized and lreated solely as members of a 'groufi',notas fiersons" 5. (Ita-
lics added.)
The italicized words in the above passages misrepresent the purpose
and effect of Respondent's policies and meaçures under discussion, even
in so faras such policies and measures do differentiate on a bais ofgroup
or colour. The exposition in the Counter-Mernorial has already indicated
the large measure of differentiation as between individuals of the çame
group or colour actually provided for and practised in pursuance of the
said policies and measures-exactly by reason of differences iii individual
"merit", "capacity", "potential", "need" or circumstances 6.Applicants
have chosen to ignore this aspect which iç again adverted to in the suc-
ceeding chapters '.In this connection it is also apposite to refer to what
has already been stated relative to the objectives of Respondent's policy
of separate development. viz., that the very separation of the diiferent
population groups on a territorial basis provides for opportunities which
will enable the members of each group to progress in their own.areas
without restriction and in accordance with individual merit, capacity and
potential
It follows that Respondent's policy, viewed in its entirety, is actually
directed at the very result desired by Appiicants.
8. In addition & their legal norm of "non-discrimination or non-
separation" 9,Applicants also rely on-
". .. a generally accepted current international norm or standard,
according to which Respondcnt's obligations should be measured
and, as thus measurcd, should be adjudged by this honourable
Court to be incompatible with Respondent's obligations under the
Mandate IO".
As already indicated elscwhere in this Rejoinder 11,the subjcct-matter
discuçsed in the section of the Reply at present under consideration is a
particuIar spherc in which AppIicants seek to apply further undefined
Vide, c.g., III, pp. 1g7-ig8, regarding the Vagrancy Proclamation; ibid..
p. 225,regarding the Undesirables Removal Proclamation.
Vide Chap. II, para. 6.ii~lva.
3 IV, p. 46s.
+ Ibid.p,. 469.
Ibid.p,.470.
6 Vide, e.g.III, pp. 315,319-320 and 325.
Vide Chap. IV, paras. 19-20and 30, and Chap. V, para. 3. infra.
Vide sec.'Es,upra,
Vide para. 4,supra.
'OIV, p. 475.
'1Videsec. C, para. 32,supm.306 SOUTH WEST AFRICA
"noms and standards" according to which, in their submission, Re-
çpondent's obligations should be measured.
For their contention that such alleged "norrns and standards" existin
relation to the aspects of government under discussion, Applicantç rely
on "[tlhe hdings and conclusions of the Committee on South West
Africa and of the I.L.O. Ad Hoc Committee on Forced Labour" l.In this
regard Applicants make the following averments in their Staternent of
Law :
"Periodic condemnation by the Committee of the limitations on
security, rights of residence, and freedom of movement in the Ter-
ritory delineates the slandard established by the United Nations
with regard thereto 2" (italics added),
and
"[cJurrent standards in this area have similarly been established by
the International Labour Organisation 3".(Italics added.)
9. ~es~ondent has already demonstrated that the views of persons
and bodies such as the Committee on South \irest Africa and the I.L.O.
Ad HOC Committee on Forced Labour cannot serve to introduce into the
Mandate objective "noms" governing the exercise of Respondent's
powers or defining Respondent's obligations under Article z of the
Mandate 4, but can at most be relevant considerations in an enquiry
whether Respondent's policies and measures are motivated by good or
bad faith 5.Respondent will in the succeeding paragraphs deal briefly
with the findings and conclusions of the said Cornmittees.
IO. The Committee on South West Africa essayed a purported evalua-
tion of facts and conditions, including laws and their effects, in South
West Africa, and applied to its "findings" in this regard what it termed
"principles and purposes of the mandatessystern" 6.Itshould be observed,
however, that the Cornmittee did not base its findings on an objective
evaluation of Respondent's approach, policy or conduct. In fact, whilst
referring to a number of laws, the Cornmittee made no attempt to ascer-
tain or examine the historical and socio-economic circumstances which
gave rise to their enactment . Moreover, the Cornmittee's conclusionswere
based in part on information contained in petitions-the unreliability
of which has been dernonstrated in the Counter-Mernorial '-without
it being in possession of information, argument or the like furnished by
Respondent.
rI. It may also be pointed out that the Comrnittee's exposition of the
relevant legidation is far from accurate. It suffices to refer in this regard
to the following examples of statements contained in the 1958 report of
the Committee
(a) The Committee states in the report that inurban areas any Native
lIV, p.473,
Ibid., p. 473.
' Ibid.. p474.
Vide sec.C, paras.33-37.supra.
Ibid., paras. 38-39.
G.A., O.R., Ninih Sess., Suppi. N14 (A/2666) p.25. asquoted atIV, p. 473.
Vide aIsoG.A.. 0.3.Thirteenth Scss.. SuppNo. 12 (A/3906).p.23.
7 IV, pp 1-46.
a G.A.. O.R., Thirteenth Sess., SuppK. 12(A/3906). REJOIXDER OF SOUTH AFRICA 3O7
who has insuficient honest means of support or is leading an idie
existence may be forced to take up employment on essential pub-
lic works or services either inside or outside the urban areas l.As
has been pointed out 2, however, a Native rnay be declared an
idle person only if he is habitually unemployed and has no sufficient
honest means of support. Furthermore, no idle Native rnaybe
forcedto take up employment 3.
(6) 'The Cornmittee states that Native men living in an urban area
are subject to ejection from such an area ifunemployed for one
month '.This statement is comyletcly unfoirncled.
(c) According to the Committee a Native cntering an urban area
requires a permit to seek work, valid for ü limited period, during
which he must either find work or Ieavc the area '.As will be pointed
out 4,there is no limit to the number of consecutive perrnits that
rnay be issued to any particular Nativt., and ifthere iç a reasonable
chance that a Native will find employment, a new permit will be
issued as a matter ofcourse.
12. Since the Committee did not have the opportunity, as this honour-
able Court has, of full and unbiassed investigation of theissues inquestion,
upon the b,asis of information and argument supplied by both sides,
Respondent cannot understand of what assistance the Cornmittee's
findings and conclusions could be to this Court. Yet Applicants suggest
that the conclusions of the Committee, based as they are on an entirely
one-sided and inaccurate appraisal of facts, are to be regarded as confirm-
ing "a generally accepted current international norm or standard,
according to which Respondent's obligations should be measured" =.
This is but another example of Appiicants' attempt, already referred to 6,
to persuade this honourable Court to abrogate its judicial function and to
act as'a rubber stamp to decisions, views and desires of political bodies.
Surely, it is peculiarly the function of this Court to forrn its own opinion
as to wliether Respondent has complied with the obligations created by
the Mandate.
13. The I.L.O. Ad Hoc Committee on Forced Labour was concerned
with legislative measures operating in, interdia, South West Africa. It
did not, however, attemptan investigation into factual circumstances in
the Territory, but contented itself with saying that certain measures
"may" or "rnight" result in indirect economic compulsion, ifabused '.
The Comrnittee did not find that such measures are infact used to exert
economic pressure upon the Native population or to create conditions
of indirect compulsion for economic purposes. In brief, neither the
Committee nor Applicants have atternpted to show that such measures
are abused in practice.
14. In the result Respondent subrnits that no significance can 'be
attached to, and no reliance placed on, the findings and conckusions
'referred to by Applicants, and that the suggestion that they are to be
G.A.,O.R., ThirleentSess.,Suppl. No.12. (A/3906), p. zn.
111,pp. 215-ZIGand vide Chap. V.para. 8.infra.
3Ibid.,p.23.
+ VideChnp. IV, para.19,infra.
' IV.p. 475-
Vide secA, para. 25,supra.
VideIV.pp. 432 and 434.30s SOUTH WEST AFRICA
regarded as constituting or confirming any "noms" or "standards"
according to which Respondent's obligations can be measured, isentirely
without substance.
15. There remains to be considered Applicants' allegations regarding
arbitrary and deliberately oppressive conduct on the part of Respondent
relative to the lvative inhabitants of the Territory l.Before proceeding
to do so, Respondent makes certain general observations in the following
paragraphs.
16. In the part of the Reply under consideration Applicants include
what they term a "Relevant Wistorical Resumé". Inasmuch as the sub-
ject-matter thereof, and the conclusions sought tobe drawn by Applicants
from their version of historical events, are concerned not only with
security of the person, rights of residence and freedom of movement,
but have a bbcaringon al1their charges relative to alleged violations of
Article 2 of the Mandate, the said "historical resumé" içdealt with in an
earlier section of this Part of the Rejoinder which is devoted to a general
treatment of Respondent's policics =.
17. In the treatment of the factual situation by Applicants in the
Reply the three subjects under discussion, viz., security of the person,
rights of residence and freedom of movement, are not kept apart, as
was the case in the Rlernorials3,but are linked up with one another,
though some points made by Applicants pertain more specifically to
one subject or tlie other. In the proccss no systematic reply is given to
the subject-matter of the Counter-Memorial, but a somewliat haphazard
collection of assertions, inferences, reasoning and suggestions is offered,
whereby Applicants' original lines of nttack are in some instances aban-
doned, and in other instances altered or replaceci by others. By reason of
this state of affairs it will not be convenient to adhere in this section of
the Rejoinder strictly to the order in which Applicants adduce their
arguments in the Keply. Respondent will in the next succeeding chapter
deal with tlie general nature and effect of tiie allegationsmade by Appli-
cants in the Keply. Thereafter Chapters III-V will respectiveiy be devoted
to a treatment of the following subjects:
Respondent's basic reserve policy;
Provisions implementing and supplementing the reserve policy;
Measures not related to the reserve policy.
In this treatment an indication \si11be given of the extent to whjch the
case, as now adduced, differs from that originally advanced in the Xe-
moriab or seeks to avoicl Respondent's case as set out in the Counter-
EiiIernorial.Respondent will endeavour to show that the supporting
material offered by Applicants largely rests on false premiçes, wrong
facts, wrong rendering of the purport and effect of legislation, distortion
or quotation of statements out of contest, and the like, and that such
material falls far short of establishing Applicants' contentions.
" -4 finalchapter, Chapter VI, will contain Respondent's conclusion on
this part of the case.
Videpara. 2,supro.
2 Vide secIr,Chap. V, supra,anciAnncx 11,Vol. 1, supva.
xiPP 144-1.51. CHAPTER 11
GENERAL NATUREAND EFFECT OF APPLICANTS'
ALLEGATIONS
A. Introductory
I. In the preceding chapter reference was made to the manner in
which Applicnnts present their case in the Reply relative to the subjects
under consideration l. In order to facilitate Respondent's treatment of
these subjects in the Rejoinder this chapter is devoted to an analysis of
the nature and effect of the allegations made by AppIicants regarding
measures which affect security of the person, rights of residence and free-
dom of movement. This will be done by surnmarizing the case sought to
be made in the Memorials, Respondent's answer thereto in the Counter-
Mernorial aiid Applicants' reaction thereto in the Reply.
B. The Memorials
2. In the Memorials Applicants did no more than refer to certain
legislative mesures concerning:
As regardsRights of Residence
(a) The establishment and development of Native reserves and urban
residential areas 2,
(b) Restrictions upon the residence of
(i) northern Natives in the Police Zone 3;
(ii) Xatives generally in and around certain urban areas '.
As regards Freedom ofMovement
(a) The control of the movement of Natives
(i) in areas occupied by the White group ;
(ii)into urban and proclaimed areas 6;
(iii) into the Police Zone from the northern territories 6;
(b) Egress from and entry into the Territory 6;
(c) Curfew restrictions in some urban areas 6.
As regardsSeczlrity O/ thePersola
Powers of arrest and of making certain corrective or restrictive orders
relevant to problems of-
(a) Vagrancy and idleness 7,
(6) Undesirable condoct in certain Native reserves
1 Chsp. 1, para. 4. supra.
1,pp 146-147.
3 Ibid.,p. 147,
+ Ibid.p,p. 147-148.
Ibid.,p. 148.
1. pp. 144and 145.
Ibid., p.145. 3 Io SOUTH \\'EST AFRICA
(c) Undesirable conduct by foreigners in the Territory 1;
. . Infringements of the pass laws 2.
As has 'lreadp been pointed out j,Applicants in the Memorials com-
plained that the restrictions affecting Natives were arbitrary and dis-
criminatory. As regards the latter aspect Applicants. from the mere
existence of the restrictive legislative provisions concerned, and without
any inquiry into the full context of the legislation or the practical and
circumstantial background thereto, sought to draw the inference that
in enacting the said legislation Respondent gave consideration "solely
to the convenience or advantage of the Mandatory governinent and of
the 'European' citizens" '.and deliberately and s~stematically oppressed
the Natitres
C. TheCounter-Memorial
3. Respondent, in the Counter-Mernorial, apart from correcting
inaccuracies in Applicants' presentation of the facts, dealt with the con-
text, background, practical circumstances and objectives of the legislation
in question, thereby demonstrating that Applicants' charges rega~ding
arbitrary and delibevately o pressive conduct relative to the Natives were
unfounded. In particular, g espondent indicated that the iaws on which
Applicants relied regarding Rights of Residence al1fell-
". . . within the framework of Respondent's policy of rnaking pro-
vision for the separate development of the various population
groups, conceived by Respondent as the best and probably the only
effective method of achieving the ideals of the Alandate in the pecu-
liar circumstances of South IlTest Africa 6".
Accordingly, under tliat head a full exposition was given of Respon-
dent's reserve policy wliereby, in various parts of the 'I'erritory, prefer-
ence and protection aro given to different groups 7.Respondent demons-
trated that the measures complained of by Applicants as restricting the
rights of residence of Natives in certain parts of the Territory were a natu-
ral corollary of the basic reserve policy, more particularly operating as a
counterpart to reciprocal restrictions upon Europeans and other non-
Natives as regards residence in Native reserves and urban residential
areas. In so far as the restrictions on the residence of northern Natives
in the Police Zone were concerned, these were demonstrnted to accord
. with the wishes of the tribal authorities in the northcrn territories
And as regards control of the influx of Xatives into urban areas, Re-
spondent fully explained the need for and advantages of the system 9.
4. In regard to Freedom of Movement a full exposition was given
covering al1aspects of Respondent 'spass or permit systern. Respondent
demonstrated that, as in the case of Rights of Residence, a system of
1,pp. 145-146.
Ibid.p,. 145.
' Vide Chap. 1,para. 2,supra.
+ 1,p. 151.
' Ibid.. pp. 151-152.
III,p.232 (para.4).
' Ibid.,pp.232-266,
Ibid. pp. 276-277.
Ibid. ]p. 277-287. REJOIKDER OF SOUTH AFRICA 31.1
reciprocal restriction and control mas found to be neceasary in order
to give effect toits basic reserve policy, and that the position was not as
represented in the Blemorials, viz., a system of restrictions affecting only
Natives. Accordingly, Europeans and other non-Natives need pemits
to enter Native reserves and urban residential areas, while, on the other
hand, Natives need passes to travel away from their ordinary places of
residence or employment in the Police Zone, or to enter tlie Police Zone
from the northern territories '.
5. Applicants had, in respect of F~eedom of Movemmt, also complained
regarding the control of entry of Batives into urban and proclaimed
areas, a matter which Respondent deaIt with under Rights ofReszdence 2.
Applicants liad further objected to curfew restrictions upon Natives
in certain White urban areas. Respondent demonstrated in the Counter-
hlernorial that reciprocal, and even more restrictive, provisions apply
to non-Xatives in Native urban residential areas. Respondent also
showed that the curfew regulations applicable to Natives were except-
ional measures, destined to fa11away with rising standards of education
and development on the part of the Native groups 3.
6. In regard to Security O# the Person only some of thc provisions
complained of by Applicants were directly concerned with the basic
policy of providing separate areas for the various population groups,
One of these was the provision for arrest and attendant action in cases
of infringements of the pass laws. Respondent demonstrated that such a
provision was neceçsary to prevent the pass systern from being rendered
nugatory, and that there was ample provision to prevent hardship and
abuse 4.Kespondent further pointed out that the deportation Iaw re-
ferred to by Applicants applied only to foreigners 5,and tliat provisions
for the removal of undesirable persons from the reserves applied only to
certain reserves in the Police Zone and were conceived primarily to safe-
guard the interests of the inhabitants of those resenres 6.
As regards legislation pertaining to vagraiicy and idleness, Reçpondent
demonstrated that the Vagrancy Proclamation does not disti~iguish on
the basis of race, colour or group at all, but applies to rncmbers of al1
the population groups 7. An exposition was given of the l-iistoficalback-
ground to, and the need for, the Proclamation; of similar legislation in a
large number of other countries, and of the necessity for powers of arrest,
entry and search to render the legislation effective. Reference was also
made to the fact that there had been rdatively few prosecutions in recent
years, and to the fact thnt the Permanent Mandates Commission was
fully awarc of the provisions of the Proclamation and never objected there-
to 8,Respondent further demonstrated that the special provisions per-
taining to idle persons in reserves and urban areas supplement ,the
Vagrancy Proclamation by dealinç specially with the problems of ~dle
III, pp306-319and 322-323.
* Ibid., pp277-292 and 323-327.
Ibid.. pp. 327-329.
Ibid.,p.317.
5 IbPd..p.226.
Ibid.,pp~222-224.
Ibid., p. 198.
Ibid.p,p.199-214.31S SOUTH WEST AFRICA
Natives in such areas, and that the said provisions also render it un-
necessary for idle Natives to be dealt with as criminal offenders '.
D. The Reply
7. In the Reply Applicants for the most part completely ignore the
aforementioned expositions and explanations -iven in the Counter-
BIemorial.
In regizrd to Rights of Resideîtce,no further reference is made in the
Reply to the powers to set aside and develop Native reserves and areas 2.
In fact, Save for attempting to show that the Permanent Mandates Com-
mission did not approve of Respondent's basic reserve policy 3, Appli-
cants' only answer to Respondent's full exposition in the Counter-
Mernorial regarding the need for and advantages of the said policy, isthe
alle~ation that this Aolic- confines Natives "to the poorest areas of the
~erGtor~" 4.
As regards restrictions on the residence of northern Natives in the
Police Zone and of Natives generally in and around urban areas, as weU
as the measures relating to Freedm of Movemelat, Applicants, whiie
virtually ignoring Respondent's relevant expositions, persist in con-
tending, purely by way of inference from the mere esistence of the pro-
visions in question, that suçh provisions serve to keep Natives and Euro-
peans apart "except for purposcs of migratory labour on behalf of 'Euro-
pean' employers" 4.
8, Applicants' main charges inthe Mernorials relative to Security of
the Person were that the measures concerned subject Natives "to arbi-
trary arrest, often without any warrant" 5, and that powers to make
arrests "may be exercised by designated persons at their largely un-
controlled discreti~n"~. In the Reply Applicants do not even sttempt to
deal with Respondent's answer in the Counter-hlemorial 6, and in fact
make no further reference to the above charges save for a statemcnt in a
footnote that-
"[d]iscretion in the exercise of imrnensely important powers con-
cerning the welfare of the indigenous inhabitants is also the essence
of Applicants' complaint concerning Section I of Proclamation
No. 15 of 1928 (S.W.A.) . . ,and the essence of the complaint regard-
ing the power ofarrest under the vagrancy and pass laws '".
This çtaternent, of course, does not take the matter iny further and it is
consequently unnecessary to add anything to what was stated in the
Counter-Mernorial regarding the said charges It rnay be pointed out,
however, that in the Reply no reliance is placed on, and no further
reference is made to, the legislation in terrns of which undesirable persons
rnay be removed from the Territory 9. It would therefore appear that
III,pp.214-221.
Ibid. pp 266-275.
IV, p. 4GG.
Ibid.. p245.
1,p. 151.
Vide para.6,supra.
IV, p.472, footnote 5.
111,pp. 195-230.
Vide1,p.146; IV, pp.225-228. REJOINDER OF SOUTH AFKICA 3I3
.Applicants no longer -rely on the said measure as supporting their
charges.
g. Although the measures referred to by Applicants in the Mernorials
under the head Security of the Person ' are not discussed in the Keply
with a view to substantiating their original charges, Applicants now
contend that the provisions relating to vagrancy and idleness and unde-
sirable perçons in reserves were also designed to keep Xatives and Euro-
peans apart save for the purposes of migratory labour. Applicants have
thus shifted thcir Iine of attack in this regard:whereas they do not repeat
their charge that the measures in question arearbitrary, Applicants now
place emphasis on their alleged discrirni.rtatory cffect, and assign to them
the design on Respondent's part to which reference is made hereunder 2.
IO. On analysis, the basic contentions advanced by Applicants in the
Reply relative to their char e of discrirninatory treatment of the Native
population of the Territory 5 appear to be the following:
"Kestrictions imposed by Respondent on the rights of residence,
freedom of moverneiit, and security of the person of the indigenous
inhabitants of South West Aftica, comprise a mechanism whereby
the policy of apartheid is implemented and 'non-White'inhabitants
areconfined tothepuorestureasof theTerritory,exceptfor purposesof
migratory laboztr on behalf of 'European' employers4.' (ItaIics
added.)
".. .the entire complex of legislative and administrative restrictions
implementing apartheid by restricting freedom of movement,
residence, and security of the person isdesignedfor theconvenienceof
the 'European'inhabitantsof theTerritoy. Al~nostwithout exception,
the provisions complained of by Applicants in part 5 of Chapter V
of the Mernorials kee# 'non-Whites' and 'Whites' afiart, except for
labozcrdemandedof theformer *." (Itaiics added.)
"In sum, Respondent's measureç restricting rights of residence,
freedom of movement, and security of the inhabitants are based
upon rnembership in a 'group'and are clesignedto effectuatethepolicy
of apartheid, or separate dmelofiment. A key fmture of thaf polzcy, as
hns beenslaown, is the tuleranceof pres~nceof 'Natives'in the highly
developed areas of the Territory ody as migrant and tetyborary
labor~rer 6." (Italicsadded.)
In its factual aspects Applicants' charge, as now made in the Reply, is
therefore to the effect that by means of the measures under consideration
the Native and White inhabitants of the Territory are designed to be,
and are in fact, kept apart-
(a) in such a manner asto confine the Natives to "the fioorestareas of
the Territory", in contrast with "the highly developedareas of the
Territory" where the White community lives,
1.pp.144-146.
2 Vide para. IO,infra.
3 Vide Chap. 1, para.4, supra.
+ IV. p.464.
Ibid., p.469.
Ibid.,pp. 472-473.
\Vhites3' in the fiwotspassages cited above, the expression"Nativeisused"inthe
third pmsage quoted above,which contains a sumrnary of Applicants'charge.3I4 SOUTH WEST AFRICA
(b) the onEyexception made bcing to tolerate "the presence of 'Natives' "
in the latter areas "as migrant or tewzfioravylabozcrers"for " 'Euro-
pean' employers". (Italics added.)
The aforementioned allegations arc compatible only with a charge of
improper motives, viz., the subjugation of the Natives to the interests of
a privileged minority of White persons l.Despite their disclaimer in this
regard =,Applicants' charge, therefore,still remains one of bad faith on
Respondent's part.
rI. It is, of course, immaterial how often the above charge is repeated
in slightly differing but equally sweeping language. The crucial question
remains whether the evidence adduced by Applicants establishes the
factual elements of the charge. In dernonstrating in the following chapters
that Applicants have not succeeded in establishing their charge, it will
be convcnient to deal first with Respondent's basic reserve policy, then
with the provisions supplementing such policy and rendering iteffective,
and finally with the measures which, in Respondent's submission, are
unrelated to the reserve policy or the generaI policy of separate develop
ment.
1 Vide also IV, p. 274, for similar allegations made by Applicants. and vide
sec. E, Chap.V, sufira.
VideIV, pp. 255-257 and sec. A.paras.2-7,sup~o. CHAPTERIII
RESPONDENT'SBASICRESERVEPOLICY
r. Reference has been made to the fullexposition given in the Counter
Memoriril of Respondent's reserve policy whereby preference and pro-
tection are afforded to various groups in different parts of the Territory l.
This exposition covered the historical circurnstances which gave rise to
such policy 2; the underlying considerations for the well-being of al1the
inhabitantsas stressed, inler dia, in reports of Commissions of Enquiry 3;
the process of extension and development of the Kative reçen7es in the
Territory from 1920 up to the present 4; the prospect of substantiai
further estension and development pursuant to the report of the Oden-
daal Commission 5; the fact that the Permanent Mandates Commission
was fully aware of, and approved of the policy 6; and also the considera-
tion that similar policies were at various times npplied in other parts of
the world with a view to protection of underdeveloped cominunities or
peoples agajnst encroachment by others 7.
z. As has been pointed out8 Applicants in their Reply for the most
part ignore this exposition. \Trith reference, however, to the historical
background to the reserve policy furnished by Respondent, Applicants
allege that ". ..Respondent reliesupon its version of history as justifying
pre-emption of 70 per cent. of the Territory for a small ~ninority of the
population" 9.
\Vhile it is true that Respondent relies partly on historical events in
South West Africa as justification for its policy of differentiation applied
in the Territory, Applicants confuse the issue by suggesting that Re-
spondent relies on Soz~fk A/rican history. With respect to rights of
residence Respondent in the Counter-Mernorial referred briefly to the
development of the resenre policy in South Africa, but at the sarne time
made it quite clear that its policies in South West Africa were conceived
and applied with reference to circurnstances prevailing in the Territory ll.
3. Applicants set themselves the taçk of correcting what they terrn
"the fundamentally false impresçion Respondent creates of a kind of
hiçtoric 'separateness' "12. Although this matter is dealt with in another
Part of this Rejoinder l3, it is important to note for present purposes
Vide Chap. II. para.3, supra.
III, pp.234-236 and 23s-240.
Ibid., pp.241-246.
Ibid., pp.246-253.
Ibid., p. 253.
6 Ibid.p,p. 254-257.
' Ibid. ,p.257-265.
Vide Chap. II, para. 7, supra.
IV, p.458.
10IIIp,p.234-238.
11Ibid., p.234.
l2IV.pp. 458-459.
t3Vide sec. E. Chap. V and Annex A, Vol.1,supra and also Chap. 1,para. 16.
supra.316 SOUTH WEST AFRICA
that Applicants do not attempt to contradict Respondent's exposition of
historical events in South West Africa which influenced Respondent in
adopting a policy of differentiation in respect of the Territory. In fact,
in another section of the Reply Applicants admit tliat "[tlhe lengthy
history and ethnology of the Territory may be taken as substantially
accurate for the present purpose" l. Under the heading "Relevant
Historical Resumé" Applicants dealalmost exclusively with historiwl
events and political developments in South Africa. With regard to the
Territory, Applicants merely quote sorne of the 1960census figures con-
fained in the report of the Odendaal Commission, and then proceed to
make the sweeping and unsubstantiated statement that in South West
Africa ". .. aplural or multi-racial society is a fact" 3. Respondent has
dealt with this and other simiIar statements in another Part of this
Rejoinder and it is unnecessary to add anything to what has already
been stated. It sufices to reiterate that the said statement is without
substance.
4. AS already indicated 5,Applicants' basic charge relative to Respon-
dent's reserve policy is that restrictions on, interalia, rights of residence
"... comprise a mechanisrnwhereby ... 'non-Whitie nhabitants are
confined to the poorest areas of the Temtory ..." 6. Apart from the bare
statement that the "reserves provide no more than a subsistence econo-
my" 7, the only evidence adduced by Applicants in support of their
charge, is the following observation of Lord Hailey:
". .. it is when one contemplates the poverty of soi1and low agri-
cultural possibilities of these Reservcs that one realizes the difficulty
of assurning that the Native can evei- ncl~ievea really adequate
standard of living-in the areas set aside for his occupation
Even a superficial penisal of Lord Hailey's work makes it clear,
however, that the quoted passage has no bearing on the northem terri-
tories. Lord Hailey first refers to these territories and then deals with
the reserves in the Police Zone. It is only when discussing the latter that
he makes the observation quoted by the Applicants.
5. By alleging that "reserves provide no more than a subsistencc eco-
nomy, whereas the 70 per cent. of the Territory set aside as the 'real
home' ofthe 'European' inhabitants, contains rnost of the wealth of the
Territory" g,and then quoting the above passage, Applicants create the
impression that the Native reserves-whether in the north or in the
Police Zone-are very much inferior to the arens inhabited by the White
group. This is not true even of the reserves in the Police Zone. As was
pointed out in the Counter-Mernorial, the northern territones are in fact
the most favourably endowed by nature in so far as climatic conditions,
e.g., rainfall, evaporation, etc., are concerned 1°.And as regards the re-
l IV, p. 261.
Ibid., pp 459-464.
Ibid., p.460.
+ Vide sec.E, Chap. V, supva.
Vide Chap.II, para.7, sztpra.
IV, p. 464.
' Ibid.,p.4467.
. Ibid.. pp. 466-467.
IoIbid., p. 308. REJOINDER OF SOUTH AFRICA 3I7
servesinthe Police Zone,Applicants conveniently ignore another observa-
tion of Lord Hailey-to be found on the same page as the passage quoted
by thern-which also applies to the reserves in the Police Zone. The
author states :
"Observation shows that on the whole the conditions of soi1and
grazing in theXeserves are not inferior to those in the farming areas
of the Police Zone l."
It is consequently clear that in the passage quoted by Applicants Lord
Hailey was merely making the point that, considering the size and a@-
cultural possibilities of the reserves in the Police Zone, dl the Natives in
the said Zone could not reside and achieve a really adequate standard
of living in the areas which were then set aside as reserves for thejr
groups.
6. Respondent has never contended that the reserves in the Police
Zone, asconstituted at present, are to be viewed as adequate homelands
for all the members of the groups involved. As stated in the Counter-
Mernorial 2,there have through the years been several difficulties mili-
tating against the enlargement of existing reserves or the creation of new
ones. Apart from the difficulties with regard to water supplies, it would
certainly not have been wise to proclaim large tracts of Iand as resenres
without at the same time being in the position to develop the same.
Partly due to the development of farms by individual White farrners,
however, and especially as a result of the progress ~vhichhas been made
in developing the Territory's economy, rendering more funds available
for intensive advancernent projects, coupled with the gradua1 rise in the
standard of development of the Native groups 3,the stage has now been
reached where enlargement, consolidation and development of re~er\~?
iiito proper homelands for the groups concerned, have become practi-
cable.
7. As stated in the Counter-MemoriaI, the total area at present set
aside for the sole ilse and occupation of Natives is approximately
20,617,651 hectares 4. According to the proposals of the Odendaal
Commission-which have been accepted iri principle by Respondent-
the suggested homelands will comprise a total area of 31,243,3h 3e5c-
tares 5, representing a gain of more than 50 per cent. The percentage
gain for the groups in the Police Zone will be even more spectacular, viz.,
more than Iro: for the Nüma approsimately 94, for the Herero approxi-
mately 35 and for theDama nearly 700 '.It is also important to observe
that much of the land to be incorporated in the proposed homelands will
be highly developed farms at present owned or leased by White farrners a.
Lord Hailey, An A frican Survey :Revised 1956(1957)~p. 764.
III,pp. 248 and 251.
3 Vide IV,p. 202.
111,p. 251 (para. 62).
5 R.P. So. 12j1g64. p. rri-Le., excluding the Rehoboth Gebict.
6 The relatively small gain for the Herero is due to the fact that this group has
at present much more land than the other groups in the Police Zone. If the proposals
of the Commission are implernented, the availability of land for the Herero fier
capilawiii still be morethan thatfor the other groups; viz., 167 hectares, compared
to IOShectares per capiln in the case of the Dama, and 62 hectares psr cnpila in
the case ofthe Nama. Vide R.P. Bo. 12/1g64.pp. 93. 95 and 105.
R.P. NO. 1211964, p. III.
@ Vide para.8, infra.318 SOUTH WEST AFRICA
The areas of the various homelands, according to the Commission's
proposals, will be as followl:
Hectares
Ovamboland .............. 5,607,200
Okavangoland .............. 4,I70#050
Kaokoveld ............... 4,598,219
Damaraland .............. 4979930ZI
Hereroland ............... 5,899,680
Eastern Caprivi ............. 1,153,3s7
Tswanaland ............... I55.400
Rushmanland .............. 2,392,671
Namaland ............... 2,167,707
5.As regards Applicants' assertion that 70 per cent. of the Territory
is set side as "the 'real home' of the 'European' inhabitants" 3,Kespon-
dent has already shown that onlp 47.3 per cent. of the land in the
Territory is at preçent owned or leased by mernbers of the White group.
Should the aforementioned recommendations of the Odendaal Com-
mission be given effect to, the extent of the White area will comprise
only 43.5per cent. of the Territory, since a total of 3,406,181 hectares of
Iand at present owned or leased by mernbers of the White group is to be
included in the proposed non-White homelands
9. In connection with their assertion tliat the Natives "are confined
to the poorest areas of the Territory", Applicants also ailcge that-
"[tlhe unjustifiable nature of the discrimination practiced against
indigenous inhabitants is compounded by the fact that the reserves
within the Police Zone arenot, in fact, triba6".
It is not clear what Applicants intend to signify by this allegation
relative to the charge under consideration. Kespondent can only surrnise
that Applicants intend to suggest that Resyonclent is not bona fidein
saying that its aim is the creation of separnte homelands for the various
ethnic groups. If so, the suggestion is unfounded, as will be shown
hereunder.
Of the 17 reserves in the PoliceZone there are eight "mised" reserves
in the sense that the admixture of non-members of the predominant
group is not negligible. As was pointed out in the Counter-Memorial 7,
it has not always been possible to accommodate al1the members of one
tribe in thesarne rcserve.It must be kept in rnind that when Kespondent
took over the administration of the Territory members of Native families,
tribes and groups which had been broken up under the German regime
were scattered al1 over the Police Zone, When Native reserves were
proclaimed, disrupted members of various groups consequently flocked
1R.P.No. 1211964p,.III.
Q Hectare=2.47 acres= + 0.00386square tniles.
IV, pp,466-467.
Vide sec.E.Chap. V. supra.
R.P. No. 12/196j,p.109.
IV,p. 467,footnot2e.
III ,.268. REJOISDER OF SOUTH AFRICA 3I9
to one and the sanie reserve-usually the nearest one. Although care
was taken to ensure that mernbers of different tribes-and even sections
within tribes-were grouped together, at the same time, in order to
cause a minimum of inconvenience, rernovals frorn one part of the
Territor? to another were not insisted upon. In consequence members of
more than one tribe or group were adrnitted to some reserves; e.g., in the
case of the Tses Keserve, Nama-speaking Herero were adinitted with
other Nama-speaking people, viz., Nama and Dama. Thus "mixed"
reserves came into being, and although Respondenthas always considered
the existence of such reserves to be unsatisfactory, fuli rectification of
the position liasup to the present tirne not been practicable.
Although the reserves in the Police Zone "have not been proclaimed
in the name of particular tribes or sections of tribes"l,Respondent has
encouraged members of the different groups to reçide in reservcç in which
their groups preponderate, and has by means of administrative policy
endeavoured to obtain hornogeneity in the few reserves that are "rnised".
For example, some years ago Herero Iiving in the Kranzplatz Keserve
were persuaded and assisted to rnove to the Otjituo Rescrvc which is
considered to be n Herero reserve.
In any event,the number ofNatives in "mixed" reservcs is negligible
in cornparison with the total number of Natives living in reserves in the
Territory. Of thelatter number 95 per cent. are to be found in one or other
reserve with a predominantly homogeneous Native group exceeding 80
per cent. of the particular reserve's population. So, for instance, the homo-
geneity of the groups in the northern territories i96 per cent. and 99 per
cent., respectively, in Ovamboland and the Okavango Native territory,
and roo per cent. in the case of the Eastern Caprivi and the Kaokoveld,
while the group predominance in eight reserves in the Police Zone is as
follows :
Waterberg-East ......... 98 per cent. Herero
Otjohorongo ........... 96 per cent. Herero
Okomhnhc. ........... 96 per cent. Dama
Soromas. ............ 9j per cent. Nama
Epukiro. ............ 91 per cent. Herero
Ovitoto ............. Sqper cent. Herero
ilminuis. ............ 81 per cent. Herero
Warmbad ............ So per cent. Bama
Even in the case of the remaining 5 per cent. of Natives living in the
reserves more that l-ial(7,752) live in reserves where a piirticular Native
group predominatcs to the extent of between 57 per cent. and 75 per
cent. Only zper cent. of all reserve Natives are to be found living in re-
serves where one or other Native group does not predominate to an
extent of more that 57 per cent., and even in the two reserves in question
the majority group account for more than50 percent. of the population.
The clcar aim, however, is that in consequence of the establishment of
enlarged homelands, "mixed" reserves should cease ta exist. In this
regard reference may be made to the following extract from the report
of the Odendaal Commission :
1 Lord HaiIey,Apt rifrican SuuveyRevised 1956 (1957). p.76.1. aquoted at
IV, p.467.footnote2.
Departmental information.3z0 SOUTH WEST AFRICA
"Some of the present areas in the Southern Sector, wliich liave
hitherto been known as reserves, as well as their populations, are so
small that they cannot possibly continue to exist as separate self-
governing homelands, and it is thereforethe opinion of the Commiç-
sion that these small areas should, if at al1possible, be integrated
with the ncarest homeland of their o~vn population group. Where
thisis not posçible, the populations concerned çhould be persuaded,
in their own interests and against compensation for their areas, to
move to the crilargeclhomelands of their own population group where
they can çhare in al1the residential, political and language rights of
thcir group l".
ro. In tlie Counter-Mernorial Respondent pointed out tliat while the
rights of residence of Natives in the nreas iiihabited by the White group
are to a certain extent limited, "the exclusion of residence by Wtiite
persons in the Xative reçerves is absolute" '. Applicants allege that the
equiv"lence is false since-
...reserves provide no more than a subsistence economy, whereas
the 70 per cent. of the Territory set aside as the 'real home' of the
'European' inhabitants, contains most of the wealth of the Territory
and a higlily developed economy 3".
In so far as hpplicants draw a comparison between the "wealth" of
the areas inliabitcd by the White group and the "poverty" of the Native
reserves, this has already been dealt with +. Respondcnt has likewisc
refuted the suggestion that "70 per cent. of the Territory [has been]
set aside as the 'real home' of the 'European' inhabitants" Itremains
to consider the contention that, by reason of the antithcsis between
"subsistence economy" and "highly developed economy", restrictions
on the residence of Natives have no real counterpart in the rcstrictions
on the residence of the White group.
It is in the first place not true that the reserves provide no more than a
subçiçtence economy. Reçpondent has already pointed out tliat the
conditions of soi1and grazing in the reserves in the Police Zone-not to
mention the northern territories-are not inferior to those in tlie farming
areas of the White group 6.If it is true, tlien, ththe reserves provide no
more than a subsistcnce economy, the same must be true of the said
farming areas which, together with the urban areas, contain, according
to Applicants, "rnost of the wealth of the Territory". On the contrary,
the true position is that whilst a subsistence economy iç stilto a large
extent Pnctised in the reserves, the rural areas of the Police Zone have
been improved and developed by the enterpriçe and capital of individual
members of the White group.
Ir. It must be self-evident that no governrnent wou1d embark upon
the enormous evpenditure involved in the schemes for economic develop-
ment of the reserves and contemplated homelands, as proposed by the
Odendaal Commission, .andaccepted by Respondent, if iwcrc true that
the reserves could provide no more than a subsistence economy. A mere
R.P. No. 12/1964p,. 79 (para.294).
2 III, p.267(para. I19).
IV,pp. 466-467.
Videparas.4-5. supra, and sec. E, ChapTrsupra.
Videpara. 8.supra.
Vide sec. H. Chap. III, para18-21,supra. andalsopara.j. supra. REJOINDER OF SOUTH AFRlC.4 321
glance at what is saiclin this regard in the Counter-Memorial I,read ivith
the report of the Odendaal Commission, will make it clear that the pros-
pects and the targetç involve much more than rnere subsistence. As haç
been pointed out 2; it is expected that in the course of time a modem
economy will be built up in the Xative homelands. It is consequently
important to realize that the existing subsistence cconomy in the reserves
is espected to be of a temporary nature only. In this regard reference
should be made to the Counter-3,femorial where details are given of
what has been done up to the present to foster increased participation
of the Xatives in a modern economy.
It is precisely becituse Applicants fail ta appreciate, or refuse to
recognize, the distinction between what has been practised and what
can be achieved in the rescrves, that they also deny the significance of
the restrictions irnposed on the residence of met-iibersof the White group.
If these restrictions were to be abolished. large tracts of land at present
reserved exclusively for the occupation of Natives would, in Respondent 's
submission, within rivery short time pass into the hands of members of
the \hite group. Kespondent reiterates, therefore, that one of the basic
considerationç of its reserve policy-in terms of which the rights of
residence of al1the groups are to a certain extent restricted-is the need
to prevent alienation of non-White land ', and thus to lay the basis for
providing a protectecl sphere in whjch non-White groiips can develop to
self-determination and self-realization.
12. Finally, Applicants endeavour to refute Respondent's demonstra-
tion that the Permanenf Mandates Commission was aware of, and
approved, its reserve policy They allege that the Commission-
". . .did not approve a policy of confininginhabitants to reserves and
forbidding them to take up permanent residence in the Police Zone
generally, or in urban areas within the Police Zone 6",
and they quote three extracts from the Minutes of the Commission in
support of their allcgation.
Before dealing with these quotations, Kespondent wiçhes to make it
clear that there does not exist in the Territory any statutory provision in
terms of which Natives residing in the reserves in the Police Zone are
confifineto such reserves, or are forbidden to take up permanent residence
in the urban areas within the PoLiceZone. It istrue that certain provisions
control the influx of Natives into urban areas, and the movernent of
Natives generally, but this does not detract from the factual position
that a large numbcr of Natives are permitted to reside permanently in
the urban areas in the Police Zone. It is also true that Natives from the
rlorthern territories are not entitled to take up permanent residence in
the Police Zone. The reasonç for this restriction were set out in the
Counter-Memorial7, and will again be discussed hereinafter
' IV, pp.'zo.$207and 208.
Vade sec.E. Chap. V,supra.
III,pp.13, 17,18, 19and or-103.
* Ibid.p,.245.
Ibid.pp. 254-257.
IV, p.466.
III. pp. 276-277.
Vide Chap. IV, paras. aiid 6,infva.322 SOUTH WEST AFRICA
13. As regards tlie questions put at the Third Session of the Permanent
Mandates Commission by its Chairrnan to Sir E. Walton l, it is to be ob-
served that tlie Commission was at that stage (1923 not fully acquainted
with the circurnstances in South West Africa, and its members were
therefore attempting to establish what policies Respondent proposed to
adopt in respect of the Territory. After Respondent's representative had,
in reply to the said questions, given certain esplanations, the Cliairman
remarked that :
"He understood that the reserve was his [the Native's] home,
which was inviolable by the white man, but that the native might,
subject to certain rules, circulate freely2."
During the same Session M. d'Andrade pointed out that-
". . .if there were no reserves, tllere would no place for the Natives,
as outside the reserves the territory was divided into farms which
were sold to the white people. Iftliere were no reserves for the
natives, they wodd be unable to exist, or would be reduced to
cornpletc subjugation to the white population =."
14. ~i~licants al& refer l to a staternent of31.Beau during the Com-
mission's Fourth Session that he-
". ..wa~itedto draw attention to the difficultieswhich resulted frorn
the systern of reserves, as at present practiced, in connection with
the development of the natives, confined as they were in n sort of
'watertight ~ornpartment'~".
Applicants fail to point out, however, that a! the same Session M. Beau
was reported to have stated further that-
"[tlhe Government of the Union had assigned vast territories to the
natives. [He] thought that it was verp praiseworthy that not only the
reserves promised by the Gerrnans had been given to the natives, but
new and much more important ones. It appeared also that the
system in force in al1 the reserves was comparatively liberal, the
natives having the right to leave them and the whites not being
allowed to enter thern nor to acquire land there .'."
M. Beau thereafter proceeded to enquire whether provision was made for
the education of Natives in tltresercpes.
It seems clear, therefore, that he had no objection to Respondent's
reserve policy and rnerely wished to be satisfied that steps were being
taken for the development of Natives in the reserves, particularly as
regards their education.
It is also significant that the end of tlte same Session the Commission,
in its special observations on the administration of South West Africa,
comrnented on ". .. the soundness of the viewswhich had prompted the
Administration to adopt a spstem of segregation of natives in re-
serves . . ."5.
15. During Iater sessions the members of the Commission, who had
IV, p. 466.
2 P~M.C., iblin., 11p. 105.
P.M.C.. &fin.,IV,p. 63.
Ibid.,p. 62.
Ibid.p,.154 REJOISDER OF SOUTH AFRICA 323
by then become acquainted with the reasons which had induced Respond-
ent toadopt its reserve policy, never commented adversely on the said
policy. Respondcnt consequently reiterates that the Commission was
fully aware of, and approved ofRespondent's reserve policy.
16. In view ofwhat liasbecn stated above, it isclear that Applicants
have offered no proof of their sweepingcharge that Respondent's reserve
poIicy is part of "a rnechanism whereby . ..'non-White' inliabitants are
confined to the poorest areas of the Territory" l.it çufficesto reiterate
that the said charge is unfounded. CHAPTER IV
PROVISIONS SUPPLEMENTING AND RENDERING EFFECTIVE
THE RESERVEPOLICY
A. General
I. In this Chapter Respondent deals with statutory provisions relating
to-
(a) Rigllts of residence in the Police Zone generallpI;
(b) Rights of residence in urbsn areas ;and
(6) Passes and permits 3.
z. In the Counter-Memorial Respondent pointed out that these
measures, sltliough also serving other irnmediate purposes aimcd, inter
alia,at the well-being of the Natives, are reasonablyrequired to effectuate
the basic policy of providing and developing separate areas for the various
population groups of the Territory 4.Applicants' reaction in the Reply is
to be found in the charge that these measures form part of a scheme
whereby the Satives are confined "to the poorest areas of the Territory".
and Europeans and Natives are being kept apart "except for purposes of
migratory labour on behalf of'European' employers" 5.
Respondent has already dealt with Applicants' averments relating to
the alleged poverty of the Native rescrves 6, and it therefore rernains to
consider whether the second aspect of Applicants' charge is substantiated
by any evidence adduced by tliem. This will be done in the foilowing
paragraphs.
B. Rightsof Residence in the Police Zone Generally
3. Applicants correctly allege that labourers recruited from the north-
ern territorieç for the purpose of employment within the Police Zone
must return to their reserves after two-and-a-half years at most '.As a
result northern Natives may not effect a change of residence so as to
settle permanently in the Police Zone. Applicants, however, fail to
mention and fail to controvertthe important facts clearIÿ stated in this
regard in theCounter-Mernorial, viz., that northern Natives have full and
exclusive rights of reçidence in their reserves, which have since tiine
immemorial been their undisturbed homelands; that neither Native nor
White inhabitants of the Police Zone arc perrnitted to reside permanently
in the northern territories, and that in the result, although northern
Vid8paras. 3-8,infra.
2 Vidsparas.9-24, infra.
Vide paras. 25-36,infra.
4III, pp. 253,276,277,287 and 308.
5IV,p. 464
6 Vide Chap.III,paras. 4-jsupra.
'IV,PP 4'34-465. REJOINDER OF SOUTH AFRICA 325
Natives are restricted as regards residence in the Police Zone, they are
on the other hand protected in their full and exclusive rights of residence
in their homelands.
4. As was pointed out in the Counter-Memorial, section 6 (4) of Pro-
clamation No. sg of 1935(S.W.A.) was enacted a,tthe specific request of
the tribal authonties in the northern areas who wish to protect their
peoples from disintegration and to maintain sound relations within and
amongst them l.
Whifst not denying or attempting to controvert these facts in any way,
Applicants cornplain that the Proclamation doeç not take into account
". .. the wishes or needs of the individual who has corne from the reserves
to work as a labourer in the Policc Zone" =. Applicants' reasoning is
difficult to foilow, especially since the central theme of their cornplaints
regarding Respondent's gcneral policies and practices is that no regard
is had to the wishes of the majoritp of the inhabitants of the Territory.
Surely, then, it cannot be expected of Respondent to give effect to the
wishes of individual northern Natives and to ignore those of the majority
as represented by their tribal authorities.
Applicants actually suggest that effect sliouId be given to the wishes
of the rnajority of the population of the whole of South West Africa
"within the framework of a single territorial unit3.That this could lead
to the suramping of the wishes of entire smaIler groups as a result of the
preferences of lai-ger groups, is apparently regarded as of na account.
Applicants also suggest that integration ought to be thrust upon un-
willing individuals by enforced legislation 4. The aforementioiied sug-
gestions are dealt with elsewhere in this Rejoinder 5. For the present
Respondent merely draws attention to Applicants' inconsistent attitude
in deprecating the .fact that Respondent gives consideration to the
wislies of duly constituted tribal authorities, aimed at the good of their
peoples as a whole, in contrast with the possible preferences of certain
individuals.
5. It should be observed that on the various occasions on which the
groups in the northern territories have been consulted as to the length of
time the members of their groups should be permitted to remain under
contract in the Police Zone, the meetings have been fully representative of
the groups. Besides the tribal authorities, viz., the chiefs and their
councils, or the councils of headmen, the ordinary members of the groups
have attended in large numbers. At these meetings anyone present is
permitted to voice his opinion and many of the tribesmen have taken
advantage of the.opportunity to do so. Parents especially have on many
occasions pleaded that their sons should be niade to return after a limited
period in order to spend the money they have earned in their home areas,
renew associations with their families and to contract marriages with
members of their group. Tt is, therefore, wrong to suggest that the tribal
leaders were not speaking on behalf of their people or that they were
acting against the interests of the individuals.
l III,pp. 276-277.
2 IV, p.469.
Ibid.p,.441.
Ibid. p. 309.
Vide sec. E, Chap. III, ansec.F, supra.326 SOUTH SVEST AFRlCA
6. Applicants also fail to refer to the other reasons advanced by Re-
spondent for the enactment of the Proclamation. It was pointed out in
the Counter-Mernorial lthatthe Proclamation was conceived also for the
protection of the Native residents of the,Police Zone against an influx of
Natives from the north, which would create conditions of unemployment
in the Police Zone.
There can be no doubt that the northern Natives, or in any event the
vast majority of thern, wouId object most vehemently if itwere proposed
to allow inhabitants of the Police Zone to settle in theorthern territories.
Respondent has no intention of acting contrary to the wishes of the
northern Natives in that regard, but by the same token it also has a
duty to protect the Native inhabitants of the Police Zone, many of whom
aredependent entireIy upon what they earn from employment.
7. It is clear, therefore, that there is no substance in the suggestion that
the Proclamation was designed to serve the interests of White employers.
Although it is conceded that such ernployers benefit from the employment
of northern Natives, the converse is also true. That the employment and
conditions offered in the Police Zone are attractive and rewarding to
employees, is borne out by the fact that also Natives from beyond the
borders of the Territory flock to this area in such numbers that it is
imperative to control their entry 2.Far from the benefits of employment
of northern Natives in the Police Zone accruing only to members of the
White group, the advantages gained by such Natives in remuneration,
experience, practical education,etc., counterbalance such benefits.
It should also be observed that neither the Proclamation nor any
other measure provides that northern Natives may be employed only by
members of the White group. On the contrary, Coloured and Xative
employers in the Police Zone have the same opportunities as White
employers to recruit northern Natives through the recruiting organization,
New S.W.A.N.L.A.
8. Regard being had to what is stated in the foregoing paragraphs,
Respondent submitts hat Applicants have failed toshow how the Procla-
mation can in any way be relied on as proof of their charge that Euro-
peanç and Natives are being kept apart "except for purposes ofmigratory
labour on behalf of 'European' employers", or of the statement imme-
diately following reference to the Proclamation in the Reply, viz. :
"The inescapable fact is that the entire complex of legislative and
administrative restrictions irnplementing apartheid by reslricting
freedom of movement, residence, and security of the person is
designed for the convenience of the 'European' inhabitants of the
Territory '."
C.Rights of Residencein UrbanAreas
9. Legislative measures providing for the establishment of separate
urban residential areas for Natives inthe Police Zone, and for machinery
to control the influx of Natives into urban areas, are again referred to by
AppIicants in the Reply relative to the aspects of their charge at present
III, p. 277.
2 Videsec. H, Chap. II, para28, supra
IV, p 469. REJOINDER OF SOUTH AFRICA 327
under consideration. In the succeeding paragraphs Respondent will deal
separately with these measures with a view to determining whether the
material advanced by Applicants supports their charge.
IO. It is common cause that separate residential areas may be, and
have in fact been. set aside for Natives in terms of Proclamation No. 56
of 1951 (S.W.A.) l.The crucial question is whether the purpose or effect
of the legislation points to a design on the part of Respondent such as is
alleged by Applicants.
In the Counter-Memorial Respondent explained that at the inception of
the Mandate Natives were of their own accord living apart from the
European inhabitants of the towns in separate residential areas adjacent
to the European areas =. Recause of the largely unorganized and l-iap-
hazard manner in which the Native settlements had occurred on the
outskirts of the White towns, a primary concern of Respondent was to
see to it that the White municipaI authorities and the employers of
Native labour in the towns played their part in providing theçe peri-urban
communities with proper housing and attendant facilities such as roads,
watcr, lighting, sanitation, etc.-facilities which the Natives concerned
could hardly have established if left to fend for themselves 3.
Because of the preference shown by the various Native groups to live
apart -from other groups, it was also incumbent upon Respondent to
endeavour to give effect to such preference and to provide, as far as
practicable, separate residential areas and other facilities for the various
groups living in urban areas 4.
In the light, therefore, of the state of affairs prevailing when the Man-
date was assumed, and of the clear preferences of the Native groups
themselves, it was natural for Respondent to act in accordance with
this tendency when making provision for proper housing and other
facilities for thearious Native groups. In Respondent's view it appeared
to be in the general interest of the population that this tendency should
be respected and given effect to, as was done by means of Proclamation
No. 34 of 1924 (S.W.A.), later superseded by Proclamation No. 56 of
1951 5.
II. The provision of separate residential areas for the different groups
also served to facilitate the administration of Native urban communities.
Not only did it afford a familiar community life to those Natives who
had come into the generally unfamiliar White urban areas, but it also
made it easier for Respondent to provide educational facilities for the
different Native groups. Moreover, a homogeneous community with
its own artisans, tradesmen and govcrnment servants, could be encour-
aged to develop in a particular area 6.Respondent aiso pointed out in the
Counter-Mernorial7 that other countries in which conditions basically
similar to those in South lest Africa prevailed lad in the past also
established separate Native townships and residential areas.
1 Pvoc.No. 56 of1951, sec.2 (1)in The Laws ofSouth HiestAfrica 19j1.Vol.
xxx, p. 94.
III.pp.168-169.
Ibid.p. 170.
+ Ibid., p179.
III,pp. 176and 180.
Ibid., p. 180.
Ibid., pp294-296.32S SOUTH WEST AFRICA
12. No atternpt ismade by Applicants in the Reply to controvert the
above esplanation of the aim and effect of the measure in question, and
iio evidence whatsoever is adduced by thern in support of their charge
pertaining to this legislation l. Indeed, Applicants' charge rests solely
on an unsubstantiated inference drawn from the very existence of the
measure under consideration. it is consequently unnecessary to add
anything to what has already been stated in the Counter-hlcmorial
regarding the establishment of separate Native residential areas 2,Save
to say that the very fact that provision has been made for the residence
of Natives in urban areas on a settled basis, refutes Applicants' charge
that the legislation in question serves to keep Natives and Europeans
apart Save for "purposes of migratory labour" for the benefit of Imite
employers.
It may also be pointed out that, contrary to what Applicants çuggest *,
the Proclamation does not absolutely forbid Natives to reside in an urban
area outside a Kative residential area established in terms of section 2 (1).
Section 9 (2)of the Proclamation makes provision for exempted Natives
to reside outside such areas, and in fact a large number do s0.s. Thus, for
example, hundreds of Native ernployees reside on the premises of their
ernployers in the White residential areas.
13.As already stated 6, Applicants' charge under consideration also
pertains to the machinery created by Respondent to ensurc efficient con-
trol over the influx of Nativesinto urban areas. In the Counter-JZemorial
Respondent gave a full exposition of the need for,and the advantages of,
the system of influs control, including historical background; experience
in South Africa and elsewhere in hfrica of the tendency for urban areas
to become overcrowded with unemployed Natives; the socio-cconomic
evils resulting from such a position as stressed by Commissions of Enquiry
and other students of the problem tbroughout Africa, including U.N.
committees and surveys and the African T,abonr Conference of1950; the
existence of similar systems in other African territories; the exemptions
provided for in the South West African legislation, and the fact that
the policy and provisions in question werc known to the Permanent Man-
dates Commission and that no objection was raised thereto '.Save in
the few respects indicated hereunder, this exposition is ignorcd by Appli-
can ts.
14. As regards the basic considerations of the influx control policy
set out in the Counter-Mernorial Applicants deal only with the social
evils againçt which this policy is in part directed. They allege that-
''[tlhe true cause of the social evils to ~vhich Respondent refers,
hawever, is not tobe found in the fact that 'Natives' congregate in
urban and proclajmed areas; it is in fact found in the discriminatorj~
system of migratory labour itself. Splitting of families, an evll
1Vide para. 2, su$~u.
2 III,pp. 169-171, 179-180and292-297.
5IV, p. 464.(Italics added.)
Ibid.,p. 465.
5Pyoc. No. 56of 1951,sec. 9(2) in The Laws of South West Afvica rpsr,Vol.
XXS, pp. 104-106.
Videpara. 9,suea.
111,pp. 279-292.
Ibid., pp. 279-287. REJOINDER OF SOUTH AFRICA 329
attribute of the system Respondent nowhere seeks to justify, gene-
ratesmany of the evils the influx control policy isdesigned to meet l."
It is true that Respondent did not deal with the system of migratory
labour in the Counter-Memonal, but neither did Applicants in the
Memorials. The subject is discussed fully in another part of this Rejoinder,
where the advantages of the system to the individual migrant labourer,
to the group to which he belongs, and to the economy of the Territory
as a whole, areset out ?.As has been stated, the system admittedly gives
nse to social problems in South West Africa-as it does al1over Africa-
butit is Respondent's contention that, on objective appraisal, the adverse
effects of the system are far outweighed by its advantages in the develop-
ment of a modern economy in an undcr-devclopcd country such as
South West Africa 3.
In support of their allegations quotcd abovc, Applicants rely on
extracts from a report of the United Nations Economic Commission for
Africa and from a work of Lord Hailey, both of wliich extracts apply to
Africa generally and not specifically to South West Africa. Applicants
fail to mention that LordHaileymakes it clear that asystem of migratory
labour is, despite the disadvantages mentioncd by him, inevitable in
Africa, and that it isin fact econornically desirable. As Lord Hailey puts
it:
"It seems inevitable that in the existing circumstances of Africa,
the labour market should be in large measure dependent on floating
or migrant labour. It is, as the East Africa Royal Commission of
1953- 5as observed, the only system through wliich a considerable
section 'ofthe African population can now meet its nccds. For manp
Africans it is not possible tu gain a higher income lcvel for the sup-
port of their families without wage-earning, and the migrant labour
system appears as the most economic choice which they can make,
however socially undesirable it may be '."
15. Res ondent has shown that migratory labour occurs wherever
there are ieveloped areas in juxtaposition to relatively under-developed
areas, resulting in labour flowing to the more developcd areas, and that
South West Africa is no exception j.Attention was, however, drawn to
the fact that, as a result of future developments pursuant to the recom-
mendations of the Odendaal Commission, it is expected that the extent
of migratory labour will graduaily diminish in the Territory 6.
16. Respondent denies, however, that the social evils referred to in
the Counter-Riemoriai ' are caused solely-or for that matter mainly-
by the systern of migratory labour itself. The prirnary cause of these
evils is the uncontrolled congregation of unemployed Natives in urban
areas and the resultant creatiori of overcrowded slum nreas. It fouo~s
that even in the absence of a system of migratory labour, theSe evlls
would still exist if no control were exercised over the influx of Natives
' IV, p.467.
2 Vide sec.H. Chap. II,paras. 18-19,supra.
3 Ibid., para21.
Lord Hajley. An A frican Suniey : ReviseI956 (1957)p~. 1387.
5 Vide sec.H, Chap.II. paras. 23-26,supra.
6 Ibid.,paras.17 and 23-26.
III, pp279-285.330 SOUTH WEST AFRICS
into urban areas l.On the other hand, those social problems of which
a system of migratory labour is a contributory cause, would grow to
enormous proportions in the absence of influx control.
In the Counter-hlernorial Respondent pointed to the serious housing
problems and the development of sIum conditions arising from the un-
controlled influx of Natives into urban areas, and quoted from various
sources to substantiate its observation 2. Surely these problems-which
are completely ignored by Applicants-are not caused by a system of
migratory labour.
17. Applicantç do not deny that influx control eliminates unempIoy-
ment, but they allege that-
". .. the central point again in this context is that Respondent's
failure to develop in any meaningful sense the economies of the
reserves, results in pressures upon 'Natives' to come to urban areas
seeking employment 3".
In the Counter-Mernorial Respondent explained that its policy relative
to the Native reserveç was "to guide the population in the direction of
greaterproductivity by rneans of a gradua1 adaptation of their traditional
economic and social institutions, rather than by means of revolutionary
changes" 4.A description was given of what had already been done in
that regard by way of, inter alia t,e development of water resources, the
improvement of iivestock, the introduction of selected seeds, veterinary
services, the encouragement of dairy industries, and concessions to Native
traders $.Respondent therefore denies that it has failed "to develop in
any meaningful sense the economies of the reserves". Elsewhere in this
Rejoinder Respondent givês the reason why the Natives in the reserves
generally still practise a system of subsistence economy.
That sorne of the inhabitants of the reserves are at times cornpelled by
circumstances-especidy conditions of drought-to resort to wage
employment in order to make a living, rnay be admitted. Itwould never-
theless be wrong to assume that economic "pressures" in the reserves
are the only, or indeed the main, cause of Natives venturing to urban
areas to seek employment. Many Natives flock to such areas in search
of adventure or experience without having any desire to stay there
permanently. Furthermore, since the towns and citieç are the focal point
of economic and industrial development, administrative authorities do
their utmost to improve the levels of the urban poor. This tends "to
increase the attractive power of cities and encourage[s] more rapid
migration"' to urban areas.
18. In the Counter-Memorial Respondent referred to the application
Vide sec. H, Chap. 11,para. 20, supra. ivhere it is shown that any economic
tion, the looseninofitraditionaandfamilysoties, andproblems of adaptation to new
circurnstances.
III, pp.279-285.
IV, p. 468.
+ III,p. 6.
Ibid.. pp.6-9,I7-21 and 101-103.
Sec. H. Chap. III, paras.5-9,supra.
U.N. Doc. E/CN. 5/332.ST/SOA/3g, International Survey of Programmas of
Social Developnae~at(1959)p..170. REJOINUEII OF SOUTH AFRICA 331
of influx control policies in other countries l. With refcrence to these
policies Applicants allege that-
"filn no case, howevcr, are the policy considerations underlying
limitations on urban immigration based iipon total and permanent
separation of 'Whites' and 'non-Whites' in the highly developed
sections '".
It is not correct toSay that Tiespondent's influx control policy is based
upon a general policy of scparation of Natives and members of the White
group. While it is true that accordiiig to Kespondent's general policy
of providing for separate development of the various groups, members
of a particular eroup may, when in the area of another group, be subjected
to certain restrictions for the mutual benefit of thernselves and such other
groups, control of influx to urban areas would be necessary quite inde-
pendently of such policy. In South West Africa-as in most of the other
countries referred to in the Counter-hlemorial-infl1i.y control legislation
is applicableonly to Natives for the reason that the circumstances which
gave rise to the legislation appty pecuiiarly to Natives. There has never
been any undue influx into urban areas by White or Coloured perçons.
Kespondent fails to seewhy influx control measures, required for sound
reasons in the interests of al1 sections of the population, should be re-
garded as objectionable rnerely because, by reason of practical circurn-
stances and needs. such measures apply to Natives only. This fact in
itself certainly does not afford any proof of Applicants' contention that
the measures in question were designed to serve the interests of White
employers only.
Itis expected that influx control measures will largely become unneces-
sary when the Native areas have reached the same stage of development
as the IVhite area. As has aïready been stated 3,active steps are being
taken by Kespondent to develop the Native areas and to create economic
growth points there. It is therefore hoped that in the course of time the
necessity for theçe control measures will disappear.
19. With reference to particular legislative rnachinery created to
control the influx of Natives into urban areas, Applicants aver that
Respondent admits that-
". . . if an indigenouç inhabitant is seeking work in an urban area, he
hns three days in which to get permission to remain a further two
weeks-and if employment cannot be found within that period, he
must leave +".
Respondent has never admitted that a Native workseeker must leave an
urban area ifhe fails to find employment within the period stated by
Applicants. In terrns of section IO of Proclamation No. 56 of 1951
(S.lV.A.)5the designated officer may on the expiration of the said period
gant permission to a Native to remain in the urban area for another
period of 14 days. In fact, there is no lirnit to the number of consecutive
permits that may be issued to any Native who çeeks employment in an
l III, pp285-287.
IV,p. 469
' Vide sec.H,Chap. III, para.13.
IV,p. 465.
P~roc.No. 56of1951.sec.IO inThc Laws ofSouth West Africarggr. Vol.XXX,
pp. 108-110.332 SOUTH WEST AFRIC.l
urban area. If there is a reasonable prospect of the Native concerned
finding employrnent, further perrnits are granted as a matter of course.
Applicants also take no notice of the fact that section IO of the Procla-
mation applies only to unexempted Natives. The section specifically
mentions certain classes of Natives who are exempt from its provisions
and thus do not need permission to seek ernplopent in urban areas 1.
zo. Applicants further allege that Native workseekers must register
with designated officers upon entering urban and proclaimed areas 2.
The true position, however, is that the relevant Iegislation-Regulation 2
of the Regulations for Proclaimed Areas 3-applies only ta proclaimed
areas and then only to unexempted male Natives entering such areas 4.
In view of Applicants' often recurring cornplaint that Respondent
classifies al1 inliabitants on the basis of group and ignores individual
merit 5,it is perhaps not surprising that Applicants prefer to ignore the
exemptions-so inconsistent uith their complaint-provided for in the
above as well asin other legislation.
21. Applicants also allege that under influx control Xativeç who do
not succeed in finding employment within a period of two weeks "are
sent back to the very areas they had tried to escape" 6, i.e., the reserves.
Respondent has already pointed out7 that in effect a Native may be
permitted to rernain in an urban area for an indefinite period for the
purpose of finding emplo~ment, and that further permission will be
refused only if there is no reasonable prospect of his finding employment.
Even then there would be no question of such a Xative being sent back
to a reserve. He would be perfectly free to proceed to another urban
area or to the rural areas of the Police Zone in order to find employment.
Siirely, Applicants cannot senouslp suggest that a Native should be
allowed to loiter in a town if there is no prospect of his finding employ-
ment. Under such circumstances it would undoubtedly be in the interest
of the Native concerned, as well as that of the community as a whole,
that he should proceed to another place where employment can be
obtained, or to his reserve where invariably some means of subsistence or
organized relief are available to him.
22. Applicants conclude by saying that " '[ilnflux control' cannot
justify the totalban on residence by 'Natives' in the urban areas of the
Territory" and that "Flousing problems, no matter how serious,
cannot rightly be tlie basis for 'Native' urban residence limited to
'European' labour requirements" Respondent fails to understand what
is meant by "the totalban on residence by 'Natives' in the urban areas".
Whilst it is true that the influx of Natives into urban areas is contvolied,
neither the relevant Iegislation nor any other statutory provision abso-
lutely prohibitsNatives from rcsiding in such areas, whether on a tempo-
rary or a permanent basis.
l III, p289.
* IV, p. 465.
' G.N. No. Gg of 1955 inThe Laws of South West Africa 1955. Vol. XXXIV,
PP 750-788.
' III, p290.
' Iliid.p.468.469. 470,473and 475.
Vide para. 19,supra.
a IV, p.469. REJOINDER OF SOUTH AFRICA 333
The second allegation showsa cornpleteIack ofapprecistion on the part
of Applicants of the aims and effect of the influx control legislation. The
emphasis does not fa11on the "labour requirements" of any specific
group, but on the possibility of the would-be Native im~nigrantmaking a
living in the urban area. Many Natives are to be found in urban areas
who are not employed by Europeans, such as teachers, professional men,
administrative oficials, etc. Moreover, Native labourers in such areas are
also employed by Coloured perçons and other Natives, and no Native
will be refused permission to remain in an urban area if he can find
employment, be it with a European, Coloured or Xative employer. In
this regard it may be mentioned that there are in fact over 300 Native
inde~endent contractors in the urban areas of tliePolice Zone l.
PI-
23. In conclusion, attention isdrawn tothe fact that Applicants do not
dispute, or attempt to controvert, Kespondent's demonstration that the
Permanent Mandates Commissionwasaware of, and approved, Respond-
ent's influx control policy =.
24. In vicw of what has been stated above, it is clear that Applicants
have failed to show that the restrictions on the rights of residence of
Natives in urban areas were conceived to keep Europeans and Natives
apart "except for purposes of migratory labour" for the benefit of IVhite
employers.
D. Passesand Permits
25. Applicants allege that the "cornplex of laws and regulations"
restricting the rights of residence of the Xative groups ". . .is supple-
mented and complemented by what have become generally known as the
'passlaws' " 3.
This allegation is in broad substance truc, but Applicants again fail to
mention that the restrictions on the rights of residence of members of
the White and the Baster groups are alço implemented by enactrnents
sirnilar in effect to "pass laws'4.
26. As has been pointed out < Respondent gave a full exposition in the
Counter-Memorial of its pass or permit çystem, covering the practical
need therefor; historical origins and developrnent thereof, both in South
Africa and South West Africa;'underlying considerations as found by
Comrnissionç of Enquiry and other qualified observers; steps taken to
minimize inconvenience by providing for exemptions, and alço through
modernization and simplification; and the fact that the Permanent
Mandates Commission was aware of the system and never comrnented
adversely thereon 6.Save for disputing the latter fact, Applicants do not
attempt to controvert Respondent's exposition, and, in fact, ignore it.
Yet Applicants bluntly aiiegethat ". ..the paçs system is the mechanism
enabling Respondent to keep 'Natives' and 'Europeans' apart, except
for purposes ofmigratory labour" '.It should be observed that Applicants
furnish no proof of this sweeping assertion. Their approach seemç to be
1 Departmental information.
III. p. 326.
IV,p. 465
Vide III, pp. 308-312..
Vide Chap. II,para. 4,supra.
111,pp,299-313.
IV,p, 470.334 SOUTH WEST AFRICA
that since thc restrictions on the rights of residence of the Natives were
coiiceived to keep the groups apart Save for the purposes of rni~ratory
labour, the same must a fortiori be true of the pass legislation, which was
admittedly designed to give effect to, inler dia, Respondent's reserve
pofcy. Kespondent has already refuted Applicants' charge pertaining to
restrictioiis onresideiîce, and it is consequently unnecessary to dwell at
any length on their identical charge relative to the pass laws. Respond-
ent's answer to tliis charge is contained in the following paragraphs.
27. hny yoiicy in terms of which certain areas are reserved for specific
population groups will obviously be rendered nugatory in the absence of
some system controlling the movement of members of one group into,
and within, the area of another. Respondent believes that the only sys-
tem by means of which efficient control can be esercised, is a pass or
permit system. For tliis reason members of the White group need a permit
to enter n Native reserve or urban Native residential area. For the same
reason a pass is required by northern Natives to enter the Police Zone,
and by Natives living in the reserves in the Police Zone to travel in the
areas inhabited by the White group. It follows that the reasons-sound in
Respondent's view-which gave rise to the reserve policy, likewise
render desirablea pass or permit system.
In addition to the above, Natives living in the Police Zone but outside
the reserves need a pass when travelling in the Zone. The reasons for this
requirement were esplained in the Counter-31emoria11. The areas
occupied by the White group have, since the assurnption of the Mandate,
offered siich estensive opportunities of employment to members of other
groups that large numbers of Natives, some from other parts of the
Territory, and some even estra-territorial. have been attracted to these
areas. This has made it necessary to create machinery for the control of
entry iiito, and movement within these areas, in order to protect the
interests of thesettled White and non-White communities. In the absence
of such machinery it would obvioiisly be impossible to establish whether
any particular Native travelling in the said areas is an extra-territorial
Native, an inhabitant of the northern territories, an inhabitant of a
reserve in the Police Zone, or a Xative living in the areas inhabited by the
White group; in other words, to establish whether such a Native is
entitled to be in the Police Zone.
28. Iii alleging that the lawç "implementing afiartheid by restricting
freedom of residence of the indigenous inhabitants of South West
Africa" are supplemented by the pass laws, Applicants al50 rely on
legislation in terms of which a Native "must have a written permit
enabling him to remain in an urban or proclaimed area" Apart from
the fact tliat the relevant legislation does not apply to exempted Ka-
tives 3,it isas already stated, iiot primarily based on a policy of separate
development or differentiation +. It is unnecessary to repeat here the
reasons whyRespondent deems the uncontrolled congregation of Natives
in urban areas socially and economically undesirable =,reasons which, as
1 ~bid. p.465.
Vide III,p.289 (paras. 189 and 190).
4 Vide iiarn.S..surru.
Vide III, pp279-287, KEJOINDER OF SOUTH AFRICA 335
pointed out above l,are in no way controverted by Applicants and arein
important aspects not even discussed by them in their Reply. It wiIl be
evident that if influx control is necessary, then a permit system to ensure
efficient control is also necessary.
zg. Although Respondent believes that a pass or permit system is
indispensable, it also believes in revising and adapting the detailed
provisions and application thereof from time to time in order to cause as
little inconvenience as possible, consonant with effective achievement
of the salutary objectives of the system. For this reason the Natives
(Abolition of Passes and Co-ordination of Documents) Act of 1952
(S.A.} abolished the old pass laws in South Africa and introduced a
new system in terms of which the possession of a reference book incor-
porating an identity card relieves the holder of carrying other documents,
including passes, as provided for in the earlier laws 3.As indicated in the
Counter-Mernorial 4, Kespondent intends also to revise and sirnplify the
system in South West Africa, but has met with practical difficultieswhich
require to be overcome. The Department of Bantu Administration and
Development is at present considering the revision and simplification
of the existing system in a manner best suited to the circumstances of
South West Africa, and practical developments in that regard can there-
fore be expected in the near future.
30. With reference to steps taken by Respondent to ensure that the
application of its.pass or permit system causes the minimum of incon-
venience, Applicants allege that-
"{tlhe essence of the evil is not that passes are difficult to obtain, but
that a system is enforced in which individuals are categorized and
treated solely as mernbers of a 'group', not as perçons '".
This allegation pertains to the newly formulated aspect of AppIicants'
case and has already been dealt with in general 6.The factual aspect of
the allegation is, hourever, also not correct. As has been pointed out,
provision for exempting particuIar individuals is made in, inter dia, the
general pass law in the legislation implementing Respondent's influx
control policy and in the Proclamation providing for the issue of curfew
restrictions 9.It is consequently untrue that Natives are treated "solely
as members of a 'group' ".
Applicants' said allegatiori is rather surprising in view of the fact that
they state, in connection with their assertion that the pass laws supple-
ment the restrictions on the "freedom of residence of the indigenous inha-
bitants", that "Applicants concede the existence of cIass exemptions ...
bzltthesecannotchangetheesselzceofthecom$laint" (italics added.)
Yet, when expounding the "essence of the evil" of the paçs systern,
Applicants conveniently ignore the existence of exemptions "which
cannot change the essence of the complaint".
Vide para. 13,supra.
111,pp. 304-305,52in Statutes of the Unionof South Afri1952.pp. 1013-1031.
* Ibid.p,.319.
IV, p. 470.
Vide Chap. 1, paras. 4-5supra.
Vide III,p. 315.
Vbid., pp. 289and 290.
Ibid.p,. 328.
l0IV,p.465.footnot7 e.336 SOUTH WEST AFRICA
31. In support of their general allegation that the pass or permit
system is "evil", Applicants rely on a newspaper report of a statement
by Mr. H. F. Oppenheimer, and on an excerpt frorn a study of the Inter-
national Commission of jurists l.
With reference to conditions in South Africa, lfr. Oppenheimer is
reported to have said that the pass laws and other legiçlation operate to
prevent Natives from obtaining the right of permanent occupation in
urban areas. He sought to support this general statement by alleging
that if aNative in an urban area Ioses his job and does not find another
within a short period, "he may be uprooted and forced to go to quite a
different part of the countryJJ. In Respondent's view hlr. Oppenheimer
was giving an exaggerated and distorted description of the situation in
South Africa. In so far as he was relying on the possibility of orders of
removal for vagrancy and idleness, there is no question of their operation
in the case of Natives who "lose their jobs and do not find another one
within a short$eriod" *.South West African legislation similar to South
African legislation pertaining to idle Natives in urban areas waç dealt
with in the Counter-Mernorial, and it was shown that the said legislation
affects a Native only if he is habitually unernployed and has no sufficient
honest means of livelihood 3.
In so far as Mr. Oppenheimer was relying on South African influx
control measures, in that respect also there can be no question of the
summary removal of a Native who has been living in an urban area and
then has the misfortune to lose his job '. Furthermore such a Native
cannot be "forced to go to quite a different part of the country" l.If it
isclear that he cannot possibly find another job, he can at most be forced
to leave the particular urban area 5.
It is particularly dificult to understand how "the growing number of
intelligent and educated men who hold responsible positions", referred
toby Mr. Oppenheimer. should have special concern in the above respects,
for there is usually an abundance of apportunities for such men to make
a living in South African urban areas. In the White part of the economy
skilled and semi-skilled Native employeeç are at a premium, and in the
Native urban areas there is no ceiling to the econornic, professional
and administrative positions which they can achieve. Consequently
there is no reason why such "intelligent and educated" men should find
themselves without remunerative cmployment for a period of time which
cannot be covered by temporary permits, or a fortioriwhy they should be
habitually idle and without honest means of livelihood.
. It should also be mentioned in this connection that hlr. Oppenheimer
is not only an industrialist, but also a politician. He was for some years
a member of the South African Parliament, in opposition to the present
Government, and though his parliamentary career has ended he is still
regarded as one of the leading figuresin an oppositiongroup known as the
"Progressive Party". The members of this party commendably concern
themselves with questions of according human rights and dignity to
ail persons, but proceed in this regard (asApplicants do) from the basic
IVi p.470.
Ibid.(Italics added.)
III,p.215 and videCha .V,para. 8, infva.
+ Vide para. 19,supra.
-'Vide para.2 1,supra. RE JOINDEK OF SOUTH AFRICA 337
political premise that the objective is to be sought through a particular
means only, viz., by moving in the direction of an integrated, multi-racial
Society. Criticism of the kind cited by Appiicants is usually intended to
advance the cause of this political movement, and is not unnaturally
inclined to exaggerate hardships and inconveniences said to be involved
in Respondent's policy of attempting to find, through separate develop-
ment, a solution wliich will be fair and just for al1 in terms of human
rights and dipity. Mr. Oppenheimer's quoted comment appears to be
no exception.
32. As regards the so-called study of the International Commission of
Jurists-ivhich also deals with conditions in South Africa-it is apparent
that the Commission merely summarized the provisions of certain laws
without paying any attention whatsoever to the socio-economic condi-
tions which gave rise to their enactment. So,for instance, the Commission
summarizes-not entirely correctly-the statutory provisions implement-
ing Respondent's influx control policy in South Africa, and eventually
concludes that-
". ..the presently existing restrictions of movement can only bring
forth the conclusion that the Government has for the purpose of
allocation of labour betwecn industry and agriculture erected a
careful system of discriminatory legislstion l".
No attempt is made to examine tlie rcasons for tlie enactment of the
1egisIationin question, and not a word is saiclabout tlie social and econo-
mic evils flowing from the uncontrolled congregation of Natives inurban
areas.
As has been pointed out 2,the Commission's conclusion-in the passage
quoted by Applicants-that the movement of Natives is regulated to
meet the industrial and agricultural requirements of the Eriropean, is
without substance. Indeed, if that were itç intention, liespondent would
not allow Natives to carry on business or to practise trades in urban as
well aç in rural areas. It is true that a Native seeking employrnent may
be refused permission to settle in an urban arm if thcre is a surplus of
labour available in çuch an area, but then regard is had to the require-
ments of Imite as well asNative employers 2.bloreover, permission is
normally granted when the purpose of the applicant is not to obtgn
employment, but to engage in some other useful occupation for which
there is scope within the urban area concerned. Surely, if Respondent
were concerned only about the rcquirenients and convenience of White
employerç, it would not control the influx of Natives into urban areas,
since the bigger the surplus of labour, the less the wages that White
empIoyers would have to pay.
33. It should also be observed that the Commission made no mention
of the syçtern of labour bureaux in South Africa, the existence of which is
inconsistent with the finding of the Commission. The major function of
these bureaux is to provide an employment agency whereby Bantu work-
seekers are assisted, free of charge, insecuring employment, and at the
same time to canalise,without compulsion, availablelabour in accordance
with the demand therefor. This can, however, not be accomplished with-
InternationalCommission of JiiristsSouthAfrica and the~ts'le,L~W (1960).
P.31.
Vide para.22. sufiru.335 SOUTH WEST AFRICA
out also conducting a system of personal identification. Without thesetwo
systems, identification and labour bureaux, the Native labour market
would soon revert to the chaotic employrnent and living conditions which
prevailed prior to the inauguration of the labour bureaux system, Le.,
squatting, overcrowding, vagrancy, crime, low wages and poor working
conditions. It is therefore cIear that the pass system-which ensures the
necessary persona1 identification-far from operating to the detriment
of the Native labour force, serves to protect the interests and welfare of
Native labourers.
34. In connection with their assertion that the pass laws supplement
and complement the restrictions on the rights of residence of Natives,
Applicants also refer to legislation interms of which a Native "must have
a written permit to avoid possible curfew restrictions in 'White' urban
areas" l.Although it is true that curfewnotices have been issued in respect
of 14 urban areas in the Territory-the usual curfew hours being
between g p.m. and 4 a.m. 2-Applicants again ignore the fact that these
notices do not apply to exemptcd Natives 3.Such Natives consequently
do not need a permit to be in a White urban area during curfew hours.
In the Counter-Mernorial Respondent pointed out that the curfew
restrictions were conceived to prevent disturbancesand crime, and stated
that with further advancement in the general educational level of the
Native populations in the cities and the towns it was hoped that such
restrictions would ultimately becorne unnecessary 2. In this regard Appli-
cants allege :
"Similarly, curfew restrictions on 'Natives' are said to protect
against 'disturbances' and 'crime'. Yet such curfew restrictions ap-
ply only in 'White' areas, and oniy to 'non-White' peoples 4."
This aiiegation is unfounded. As was pointed out in the Counter-
Mernorial, the type of restrictions involved in a curfew is entirely recipro-
cal. The location regulations control the rnovement of members of the
White group in Native urban residential areas at least as stringently in
that White persons may enter such areas only on the authority of the re-
sponsible superintendents, whether by day or by night 2Moreover, curfew
restrictions are in their very nature appropriate only to circumstances of a
special nature, viz., to combat the threat which an accumuEatio? ozf relati-
vely under-developed persons could constitute to more developed commu-
nities and their poçsessions in towns built on the European model. They
were for that reason not appropriate for Natives in Native areas or even
in rural parts of the White area.
35. Finally Applicants allege that Reçpondent's exposition of the
attitudeofthe Permanent Mandates Commission toward the pass system
is not correct 6. In this regard Applicants rely on observations of Lord
Lugard at the Third and Fourth Sessions of the Commission.
Itis true that at the Third Session, during the preliminary examination
of Respondent 's annual report, Lord Lugard called attention to the
pass system and that the Chairman of the Commission then commented
l IV, p. 465.
Vide III,p.328.
Ibid.,p.328.
IV, p. 471,
111,pp. 312-314.
IV, p.471, footnote 7. KEJOINDER OF SOUTH AFRICA 339
that it would be ~wll to ask the reasons for the restrictions imposed by
the systern. At that stage (1923) the members of the Commission were not
fully acquainted with conditions in South West Africa andwere obviously
anxious to establish whether valid reasons existed for the enactment of
the pass laws. It is therefore highly significant that after Respondent's
representative had explained the background to, and the reasons for,
Respondent's pass policy, M. d'Andrade during thesame Session observed
that-
,.. .the pass system was used in many of the colonies of South
-
Africa and the territories of the Union. It was analogous to the pass-
port system in Europe. The passes indicated the origin of the Native,
who was his chief, etc. It was no burden on the Native l."
During the Commission's Fourth Session, after Respondent's repre-
sentative had. in reply to Lord Lugard's question referred to by Appli-
cants, explained that the pass system was absolutely necessary under
existing conditions, the Chairman remarked that the presence of the
said representative and his very clear replies to questions ". ..had been
very useful in clearing up the various doubts" 2.
During later sessions the rnembers of the Commission never commented
adversely on Respondent's pass or permit policy, in spite of repeated
references thereto in annual reports-as surnmarized in the Counter-
Mernorial3 and not controverted by Applicants-and it is therefore
obvious that the Commission did not regard the system as being objec-
tionable.
36. In Respondent's submission the above analysis of Applicants'
charges relative to the pass laws, and of the supporting material offered
by them, shows conclusively that the said charges are unfounded and
without substance.
-
P.M.C., Min., III,p. 106.
P.M.C., Min.. IV, p.64 and vide IIIp.313.
' 111,pp.312-313. CHAPTER V
MEASURESNOT RELATED TO THE RESERVE POLICY
A. General
I.It wjll be recaiied that dthough the rneasures referred to by Appli-
cants in the Mernorials under the heading Security of thePerson are not
discussed in the Keply with a view tosubstantiating their originalcharges,
Applicants now contend that the provisions relating to vagnncy and
idleness and undesirable persons in reserves were also designed to keep
Natives and Europeans apart Savefor the purposes of migratory labour l.
The same charge is made in respect of the measures controlling egress
from and entry into the Territory.
These measures, which are baçically unrelated to Respondent's reserve
policy or the general policy of differentiation 2,will be dealt with herein-
after with a view to analysing the material on which Applicants rely in
support of their charge.
B. Bgress frornand Entry into the Territory
z. As regards entry into the Territory, Respondent stated in the
Counter-Mernorial that section 4 of Proclamation No. II of 1922 .'-
which requises a Native to obtain a permit for the purpose of entering
the Territov-does not apply to inhabitants of South West Africa.
Respondent also explained that the purpose of the section is to protect
the non-White employees of the Territory, by ensunng that they are
not displaced by foreign non-kWhites from the Republic and other
countries 3. Al1this is in no way controverted, or even dealt with, by
Applicants in their Reply. It is consequently clear that there can.be no
substance in Applicants' assertion-not supported by any evidence
whatsoever-that this measure was conceived to keep Natives and
Europeans apart Save for the purposes of migratory labour
3. Tnrespect of egress from the Territory, Respondent pointed out in
the Counter-Mernorial6 that section II of the aforernentioned Proclama-
tion, which provides that Natives may not leave the Territorywithout a
pass, does not apply to:
(a) Native fernales;
(b) Native males of the age of 14 years and under;
(cl exempted Natives.
Respondent explained that the required pass içinthe nature ofa passport,
Vide Chap II, para. 7, supra.
Ibid., parag,supra.
111,p. 321.
' Proc. No.II af 1922,sec.4in TheLaws of South West Africa1915-1922,Vol. 1,
p. 750: asainended by Proc. So.24 of1935,sec.Iin The Law$of South WestAtrica
1935.vol. XIV. p. 140.
IV,p. 47'. read withp.470.
111.p.319. REJOlNDER OF SOUTH AFRICA 34*
and that the provision was designed to ensure that Natives in the Terri-
tory who are inexperienced, illiterate, or in poor financial circumstances,
do not in ignorance embark upon trips to South Africa without realizing
the implications of such a venture l.With reference to this explana-
tion, Applicants allege:
"Exempted frorn the requirement, however, are 'Native' females
and 'Sative' males 14 pars of age and under, thus confirming that
the legislation in fact isdesigned to serve the labour requirernents of
the 'Eüropeans' in the Territory and the Republic 2."
Applicants' inference isentirely unjustified; indeed, it involves a complete
mon sequit~r.It will be recalled that the Proclamation was enacted after
a Commission had .been appointed to enquire into Native Affairs in the
Territory 3.The Commission recommended that provision be made for
four types of passes, but specifically stated that the proposed pass law
should not be applicable to youths at al1 "... as it isundesirable to expose
children to a position of having to undergo imprisonment for contraven-
tion of the pass laws" +.It was for this reason. and also for the reason
that according to Native law and custom both females and male youths
are regarded as minors who alrnost invariably travel in the Company
of an adult male, that none of the provisions of the Proclamation relating
to passes was made applicabIe to Native females and youths.
It followsthat there is no justification for the assertion that provisions
regarding egress frorn the Territory were conceived "to serve the labour
requirements" of nlembers of the White group.
C. Vagrancy and Idleness
4, In the Counter-Mernorial5 Respondent dealt fully with the legis-
lation in the Territory pertaining to vagrancy and idleness with a view
to refuting Applicants' charges that such legislation subjects Natives to
arbitvary arrests and administrative orders. As already indicated
Applicants, in the Replp, seern to abandon their former line of attack,
and now rest their case on the suggestion that this legislation is part of-
"... a rnechanism whereby the policy of afiartheidis irnplemented
and 'non-White' inhabitants are confined to the poorest areas of the
Territory, except for purposes of migratory labour on behalf of
'European' employers '".
It should be observed that Applicants do not attempt to controvert,
and in fact do not even refer to, the fuil exposition in theCounter-Memo-
rial covering, inter alia, the historical background to and need for the
measures in question; similar legislation in a large number of other coun-
tries; andthe need for powers of arrest and administrative action to ren-
der the legislation effective. In demonstrating that Applicants in fact do
no more than draw unsubstantiated and completely incorrect inferences
l 111,p.320.
IV,p. 471.
= 111,p.310.
' RePorf oftheNative RcscrvtsCorninissio(S.W.A.), 8June 1921 (unpublished).
P. 17.
' 111,pp. 197-221.
' IV,ep.464 and,vide alsopp. 471-472.342 SOUTH. WEST AFRICA
from the very existence of the measures concerned, Respondent wilI, in
the succeeding paragraphs, deal separately with statutory provisions
relating to :
(a) vagrancy ;
(b) idle persons in urban areas;
(c} idle and undesirable persons in Native reserves.
5. In the Counter-Mernorial l Respondent corrected the erroneous
impression created in the Mernorials that the Vagrancy Proclamation
applies only to Natives. Applicants apparently now accept that the
Proclamation applies to al1persons-irrespective of race-but allege that
". .. it caniiot be denied that itismuch easier for a 'Native' to be found a
vagrant, than it is for a 'White' man" 3.
Respondent denies that it is easier for a Native than for a imite man
to be declared a vagraiit. The same provisions of law apply, andthe same
degree of proof is required for a conviction, irrespective of the race of
an accused. It is true that more Natives than White or Coloured persons
are found guilty under the provisions of the Proclamation, but this is
due to socio-economic conditions and not to any objectionable feature
or design of the legislation itself, or of the application tliereof in practice.
More Natives than imite persons are no doubt found guilty of theft,
assault and other offences al1over Africa, but nobody has suggested that
the laws concerned are for that reason to be regarded as aimed at the
oppression of Natives for the benefit of \nite persons.
6. With reference to the iact that the Proclamation is ifP zvacticeonly
applied to the Police Zone, exclusive of the Native reserves, Applicants
allege :
"It is applied precisely where the 'Native' rnost needs his pass-
in the 'White' urban areas. The lack of a pass might well result in
a 'Native' being declared a vagrant 3."
This statement is wrong in several respects. Apart from the fact that
the Proclamation is also applied to the rural areas of the Police Zone,
it isnot true that a Xative may be declared a vagrant merely because he
lacks a pass. Whilst the possession of a pass will almost invariably and
conclusively show tliat the Xative concerned is not a vagrant, the oppo-
site does not hold good. In the event of a charge of vngrancp the prosecu-
tion must prove that the Native concerned falls within the ambit of the
dehition of "an idle and disorderly person", and this definition contains
no reference to passes +.Indeed, the Vagrancy Proclamation was enacted
two years before the generaI pass law.
What is even more serious, is that the above allegation seeks to create
the impression that the Proclamation waç conceived to punlsh vagrancy
only in so far as itaffects the interests of the White inhabitants of the
Territorp.
In the Counter-hlemorial Kespondent explained the circumstances
prevailing in South West Africa in 1920, which made it imperative to
. l III, p. 198.
* 1,P. 144.
TV, p.47r
4 VideIII, p.197.
5 Ibid.,pp. 199-200. REJOINDER OF SOUTH AFRKCA 343
ensure some degree of social and economic stability in the Territory.
Respondent also pointed out that the Proclamation is in practice not
applied to the northern areas or to the Native reserves in the Police
Zone In the former areas tribal authority and discipline were still
intact when the Mandate was assumed, and the problem of vagrancy has
never presented itself there to any appreciable extent. In the case of the
reserves in the Police Zone, vagrants cm be dealt with under the provi-
sions pertaining to idle perçons in Native reserves, to which reference is
made hereunder 2,in lieu of being sentenced as criminals under the Va-
grancy Proclamation. Applicants do not controvert, or even discuss,
these facts, but merely make the unsupported suggestion that the Vagran-
cy Proclamation was intended to serve only the interests of the White
'group.This suggestion entirely ignores the fact that in addition to Euro-
peans there are the Natives themselves whose interests require protection
.from vagrants.
7. Applicants also allege 3 that Respondent has not correctly stated
the attitude of the Permanent Mandates Commission with regard to the
Vagrancy Proclamation 4.They refer in this regard to criticism expressed
by the Commission relative to only one aspect of one particular provision
of the Proclamation [section 14) (which empowers a magistrate to order
an accused to a term of service on publicworks, or to employment under
a municipality or a private person other' than the complainant, in lieu
of the prescribed punishment 5.It wilibe observed that the Commission's
objection was confined to what it termed the power "of imposing forced
labour for the bertefi of firivateirzdividuals" 6,and did not concern the
aspects of service on public works or employment under a munici-
pdity, or, indeed, any other aspect of the Proclamation. This criticism
by the Commission, therefore, concerned a minor and incidental aspect
of the Proclamation which was not cornplained of, or even mentioned at
all, in the Memorials. Applicants' compIaints in the Memorials concerned
only sections r and 3 of the Vagrancy Proclamation 7,and it was with
specific reference to these provisions that Respondent stated in the
Counter-Memorial that the Permanent Mandates Commission never
raised any objections. The weight of this consideration is, indeed, en-
hanced by the fact thatthe Commission had scrutinized the Proclamation
withsufficient care to beable to criticize only a minor aspect of a particular
provision. thereof. In view of the abence of any complaint by Applicants
regarding section 14 of the Proclamation, Respondent did not consider
it relevant to refer to the above-mentioned criticism of the Commission.
~Had that topic been under discussion, Respondent would.have pointed
out that in deference to the views of the Com~nissionpersons deaIt with
under the Proclamation are not ordered to take up employment with a
private person \
: Tn the circumstances there is no justification for Applicants' statement
1 III, p.201.
2 Videpara. 16,infra.
IV, p. 471,footnote 7.
VideIII, pp.2~3~214..
PVOG. EO..25 of 1920, sec.14 in The LAS' of south West Africa 1915-1922
Vol. 1,p. 284. . .
6 P.M.C., Min., III, p.293 (Italics added.)
1,p. 144.
Departmental information. . . .344 SOUTH WEST AFRICA
that "Respondent's version of the attitude of the Permanent Mandates
Commission toward .. .the Vagrancy ProcIamation is not correct" 1.
On the contrary, Applicants have in no way controverted the fact,
mentioned in the Counter-Memoria12, that individual mernbers of the
Commission spoke out strongly in favour of the vagrancy legislation
in its general purport.
8. In the Counter-Memorial Respondent pointed out that the pro-
visions of section 26 of the Natives (Urban Areas) Proclamation +,which
apply only to idle Natives in urban and proclaimed areas, cover for such
Natives largely the same ground as the Vagrancy Proclamation, which
applies to perçons of al1 groups, irrespective of race. The difference in
substance between the two Proclamations lies in the treatment of the
vagrant or the idle person. Under the Vagrancy Proclamation an offender
is dealt with as a criminal, whereas section 26 of the Natives (Urban
Areas) Proclamation merely provides for administrative action against
idle Natives
With reference to the Iegislation pertaining to idleness in urban and
proclaimed areas, Applicants dege that-
"[ilnsofar as 'Natives' areto be found in urban or proclaimed areas,
but are not in the employ ofthe government or of 'White'employers,
removal orwork iscertain" 6,
and that-
"[tlhe presence in the '\mite' zone, of a 'Native', re ardless ofhis
persona1 ski11or attributes, 'serves no purpose in t e absence of
willingness to work' .. .7".
These allegations are nothing short of preposterous. Section 26 of the
Natives (Urban Areas) Proclamation certainly does not provide, and does
not have the effect, that a Native rnay be declared an idle person because
he is not employed by the government or a White person. According to
sub-section I (a) of the Proclamation a Native is an idle person only if
he is habitually unemployed and has no sufficient honest means of liveli-
hood, or if because of misconduct or addiction he fails to provide for his
own supportor forthat of a dependant.
It will therefore be seen thatthe section does not affect:
(a) a Native who carnes on his own business, or practises an independ-
ent profession, trade, art or craft;
(b) a Native employed by another person-European, Coloured or
Native ;
(c) a Native who does not perform any regular work but may have
honest means of livelihood by reason of accumulated possessions,
maintenance by members of his family, or the like;
(d) an unemployed Native who honestly seeksernployment.
In this regard itmay be pointed out that of the approximately 70,000
l IV. p.471,footnote 7.
Vide IIIpp.213-2 14.
Ibid., p216.
Froc.NO. 56of 1951,sec. 26 in ThLaws ofSouth WestAfrica rggr,Vol.XXX.
PP. 144-146.
' IIIp,.216.
IV,p.465.
Ibid.,p.468. RE JOINDER OF SOUTH AFRICA 345
Natives in the urban areas of the Police Zone, approximately 40,000 are
women and children, the vast ma'ority of whom are not in employment at
au. Moreover, as already stated I,there are over joo Nativeindependent
contractors in these areas, many of whom employ other Natives.
9. Applicants further allege that should a Native be declared an idle
person, he will be removed from the urban or proclaimed area,
"... or if he had previously agreed to a contract of employment,
[he] may be ordered lo carry out the employment,regardless of hls
wiskes ... (Italics added.)
This statement completely misrepresents the true position which was set
out very clearly in the Counter-hlemorial 3.If the words itaLicizedabove
are to make any sense, in conjunction with "previously agreed", it can
only be on the basis that the Native must have entered into the contract
some time previously and may at the tirne of being ordered to do so no
longer wish to carry it out. Exactly the opposite is true. The Native
Commissioner or Magistrate concerned may order a Native to enterinto
employment only if, subsequent to his being declared an idle person, and
therefore immedialely bejorea consequential order is made, such a Native
agrees to enter into a contract of employment which is approved of by
that Native Commissioner or Magistrate. There is consequently no
question whatever of compulsion "regardless ofhis wishes". Thls position
is so clear from the wording of section 26 itself and from the discussion
thereof in the Counter-Mernorial, that it is rather surprishg to fmd a
persistent misrepresentation thereof in the Reply 4, especially after the
original misrepresentation in the Memorials 5,where no reference was
made at al1to the requirement of agreement on the idle Native's part-
was exposed in the Counter-Memorial3.
IO. In the Counter-Memorial Respondent further explained that, as
regards underlying policy, the provision in question should not be con-
sidered in vaczlo,as it were, but should be read together with the other
sections of the Proclamation relating to influx contro16. The main
consideration underiying Respondent's influx cantrol policy has been the
necessity to prevent urban and proclairned areas from being overcrowded
with unemployed Natives. It would consequently be most unfair to the
law-abiding Native inhabitants of such areas, and to Natives who wish
to enter siich areas for the purpose of procuring emplopent. to allow
"idle" Natives to remain in these areas unless they are prepared to mend
their ways.
II. It should also be observed that section 26 does not provide that an
idle Native must be removed unless he consents to enter "the employ of
the government or of 'White' employers", as issuggested by Applicants7.
The Proclamation contains no provision regarding the race of the
employer. \aile it may be true that in earlier times few, ifany, non-
Whites would have been able to qualify as suitable employers, the situa-
Vide Chap. IV. para.22. supra.
* IV,P. 472.
III,p.215,
' IV, p.472, and videalso the ambiguous earlier rendering atp. 466.
1, pp.127and 145.
III, pp. 217-218.
' IV,p. 4b5.'346 SOUTH WEST AFRICA
:tion has changed in that respect, and an ever-increasing scope for such
contracts isemerging l.
12. With reference to the fact that section 26 does not apply to .idle
White persons, Applicants observe that-
- "[tlhe presence in the 'iVhite' zone, of a 'Native' .,, 'serves no
purpose in the absence ofwillingnessto work' .. .".
"A 'European', on the other hand, is in his 'real home' in the
Police Zone; 'absence of willingness to work on his part' is not
relevant =."
And they Say that "so double a standard" is "unconscionable" 2.
It will be obvious that this rendering of the situation, particularly the
suggestion of a double standard, makes nonsense. In the Counter-hlemo-
rial Respondent went to some length to explain that section 26 covers for
ide Natives largely the sarne ground as the Vagrancy Proclamation,
which applies to persons of al1 groups throughout the Police Zone 3.
Applicants completely ignore this factor, and consequently leave out of
account the fact that an idle White person is dealt with as a criminal
offender under the Vagrancy Proclamation, being liable, onconviction, to
a sentence of irnprisonrnent with or without attendant punishment. Save
for the above absurd assertion, Applicants have not attempted to
controvert that, aç pointed out in the Counter-hlemorial 3, the only
differentiation involved really opcrates in favour of the idle Native, in
that he need not necessarily be treated as a criminal offender 4.
13. In explaining why the special treatment of ide Natives by the
provisions of section 26 of the said Proclamation was appropriate to
Natives only, Respondent pointed out that such treatment of Natives
falling within the ambit of the definition of "ide persons" might involve
"rernoval from an area in which their presence serves no purpoçe in the
absence of willingness to work, to a place which is their real home" '.
This followed on a passage indicating the premise that "particular
offenders" in fact had "rural homes" where the discipline of reçerve
regulations andjor traditional tribal systems could minimize the harmful
effect which their tendency to idleness could occasion to others 4.
Fastening on to the expression "absence of willingness to work",
Applicants state:
"iVith respect particularly to rights of residence and movernent,
Respondent relies heavily upon the premise that restrictions upon
the presence in the Police Zone of 'Natives' definedas 'idle persons',
hence considered 'redundant' to the economy-
'.,. iovolves removal from an area in which their $resencesenies
nopur+osein theabsenceofwillingnessto work,to a place which
is their reahome. These considerations do not applyto White or
CoIoured persons whose only real homemay be in urban or pro-
claimed areas.' (Italicsadded by Applicants.)
l Vide Chap. IV, para.22,supra.
IV, p. 468.
III ,p.216-217.
Ibid.p,p.2I7-2I8.
Ibid.p,.218. REJOINDER OF SOUTH AFRICA 347
: Among the purported justifications for thus consigning sorne 170,000
inhabitants who spend most of their working lives in the Police Zone
'away from their 'real home' without normal farnily life, to reserves
far from their places of livelihood, Respondent reliesupon its version
of history as justifying pre-emption of 70per cent. of the Territory
: for a small minority of the population '." (Footnotesommitted.)
It wiil be observed that in this manner Applicants, with reference to
"rights of residence and rnovernent" generally, and asan introduction
to their treatment of those subjects, seek to apply completely out of
context a statement made by Respondent with reference only to one
particular measure complained of by Applicants in regard to Security
ofthe Pevson. The result is that something said by Respondent in regard
only to the question of the most effective and most humane method of
dealing with the problem of idleness and vagrancy in urban areas is
distorted as if it were offered as an explanation and justification for the
whole of the general policy regarding control of labour, residence and
rnovement of Natives. The statement was not intended to have such
application, and cannot in tlie context in which it appears be read as so
intended. From what has been said above and also in the Counter-
Memorial, it içclear that outside of the context of habitua1 idleneçs, the
statement quoted by Applicants does not apply. Applicants have thus
again commenced fheir reply to a portion of Respondent's case, as set
out in the Counter-Memorial, witli a distortion of what Respondent in
fact said 2.
14. Applicants' aiorementioncd allegationç are moreover, in their
factual aspects, incorrect and misleading in several respects. In the first
place, section 26 of the Proclamation does not apply to the rural areas
of the Police Zone. Secondly, the section applies only to Katives who
fa11within the arnbit of "idle persons", and therefore does not affect the
vast majority of Natives living in urban and proclaimed areas. Thirdly,
the section does nat-even indirectly-affect "some 170,000 inhabitants".
The total Native population. inclusive of women and children, of urban
and procIaimed areaç at present iç70,45 . And as already pointed out,
only fiveNativeshave been removed from these areasunderthe provisions
of the section during the last five years 3. Fourthly, the total area,in
respect of which the section applies, comprises only 0.48 per cent. of the
whole of the Territory, and there is consequently no question of "pre-
emption of 70 per cent. of the Territory for a small minority of the popu-
lation" 3.
15. It isalso not correct that Respondent considers "idle" Natives to
be '' 'redundant' to the econorny" of the Territory. While it is true that
in Respondent's view the presence of "idle" Natives-as de.finedin sec-
tion 26-in urban and proclaimed areas serves no purpose, the said
section was in fact designed to encourage Natives, wherever possible, to
take a constructive part in the economic development of the Territory.
As has been explained, "idle" Natives, instead of being treated as crirni-
nals under the Vagrancy Proclamation,are either given the opportunity
to enter into suitable ernplowment or removed from urban or pro-
. . . .
.-
l IV, p. 458.
Ibid., para. 6,secprn. 1.par .5-6, su+ra. .. .348 SOUTH WEST AFRICA
claimed areas to their rural homes. If in the latter case such a Native is
removed to a reserve within the Police Zone and remains idle there, he
can be forced to take up employment on essential public works. If his
home is situated in the northern territories, he can be dealt with by the
tribal authorities under Native Iaw and custom. In both instances the
authoritieç concerned are in a position to ensure that the "idle" Native
does not remain " 'redundant' to the economy" ofthe Territory.
16. With reference to the legislative measures pertaining to idle and
undesirable perçons in Native reserves, Applicants allege that-
"[tlhe policy of apartheid is similarly effectuated by Iegislation
authorizing a superintendent of a reserve within the Police Zone (i.e.,
within the highly developed area of the Territory) to order idle
'Natives' to take up employment on essential public works and
permitting the Administrator to remove 'undesirable' 'Natives'
fromcertairn eserves within the PoliceZone l".
By saying that "the policy of a artheid" iseffectuated by these measures,
i?
and by emphasizing the fact t at the legislation applies only in reserves
"within the highly developed area of the Territory", Applicants appar-
ently seek support for their theme that the measures concerned are part
of "the mechanism enabling Respondent to keep 'h'atives' and 'Euro-
peans' apart, except for purposes of migratory labour" 2.It should be
observed that Applicants do not even attemptto controvert Respondent's
explanation of the aims and effects of the measures in question as set out
in the Counter-Mernorial 3.In fact, as in so many other instances, Appli-
cants merely draw unwarranted inferences from the existence of the
legislation without adducing any proof in support of their charge.
The true position is that neither regulation z7bis4-pertaining to
idle persons-nor regdation 27 5-pertaining to undesirable persons-
of the regulations issued under Proclamation No. XI of 1922 6-has any
bearing on Respondent's policy of differentiation or on the convenience
of members of the White group, and certainly does not have the effect
ofensuring migratory labour for the requirements ofEuropean employers.
17. In the Counter-Memorial Respondent submitted that no objection
can be raised against the practice of ordering habitually idle and unem-
ployed residents of a Native reserve within the Police Zone to take up
employment on essential public works in lieu of being sentenced as a
criminal offender under the Vagrancy Proclamation. This is as much
in the interest of the idle persons themselves as in the interest of their
community, which require the construction of essential public works
such as the building of dams and roads, etc. Respondent also pointed
out that work to be done in tems of an order issued under regulation 27
bis, is work primarily in the reserve itself-and not for the benefit of
2 ~bid:,P.470.
3 Vide III.DP.220-224.
' G.N. ~o.*;zr of 1952 in The Lams ofSouth West Africa 1952, Vol. XXXI,
PP. 834-836.
G.N. No. 68 of 1924 inThe Laws of South West Africa r924,pp. 57-63.
P70c. NO. IIof 1922, sec20in The Laws of South West Afric1915-1982,Vol.1,
P. 754.
rn, p. 2z0.
Ibid., p. zzr. RE JOINDER OF SOUTH AFRICA 349
any White person or White community. And it was stated that it has
for some timenot been found necessary to make use of the provision.
The reason why the regulation was notmade applicable to the northern
territories,is that in these areas tribal life and authority were still largely
intact. Habitually idle Natives could therefore be dealt with by tribal
authorities according to Native law and custom.
It follows that there is no substance in the suggestion that the Regu-
lation subjects the interests of Natives inthe reserves to the requirements
of White employers.
18.As regards the fact that idle Natives in reserves may be cornpelied
to perforrn forced labour on essential public works, Applicants refer to
the views of the International Labour Organisation "regarding such
practices" '.The relevance of the views of this organization in these
proceedings are discussed in another part of tliis Rejoinder 2. In the
present context it may, however, be relevant to point out that idle
White and Coloured persons may also be adjudged to a term of service on
public works in terrns of the Vagrancy Proclamation It should also be
observed in this regard that Article 3 of the Mandate permits forced
labour for essential public works and services. Furthermore, the pro-
visions in question conform to the terms of Convention 29 of the Inter-
national Labour Conference in that-
(a) the labour does not enure for the benefit of private persons, and
(b) a sufficient wagehas to be paid.
rg. As regards regulation 27, it is true that provision is made for the
rernoval ofundesirable Katives frorn certai rnserves in the Police Zone.
As pointed out in the Counter-blernorial 5,the regulation was introduced
to promote order and good government in those reserves in which there
would initially be little social cohesion and discipline by reason of the
fact that scattered remnants of various tribeç settled in such reçerves.
It is consequently clear that the regdation serves no economic purpose
whatever, and that it is aimed at the general benefit of the communities
resident in the reserves concerned. And, as was aiso pointed out 6, as a
result of the better group relations and tribal discipline which have corne
into being under Respondent's administration, it has not been found
necessary to make use of the regulation for a considerable period.
20. In view of what is stated above, Respondent submits that it is
abundantly clear that none of the provisions pertaining to vagrancy or
idle and undesirable perçons supports Applicants' charge of a design to
keepNatives and members of the White group apart "except for purposes
of migratory labour" '.
l IV, p.472,footnote 4.
Vide sec. H, Chap.IV, paras.29 and 32,supra.
Vide para. 7, supra.
' Vide Co~uenlion concerning Forced or Com#ulsory Labour of 28th June1930.
International Labour Offic e,Port of the AdHoc Colnmitdceon Forced Labour,
E/54III, p222.,P. 140-143.
IMd.,p. 224.
' IV,P. 470. CHAPTER VI
CONCLUSION
' r. It will be recalled that, apart from the alleged applicability of their
newly formulated legal norm of "non-discrimination or non-separation",
the existence of which Respondent has denied l,Applicants' case as for-
mulated in the Reply, relevant to the aspects of government here in
issue, rests solely on the charge that Respondent by design keepç Natives
and Europeans apart in such a manner as to confine the Natives "to the
poorest areas of the Territory"; the only exception made being to tolerate
"the presence of 'Natives' " in theWhite areas "as migrant or ternporary
labourers for 'European' ernployers" 2.
2. In dealing in the foregoing chapters with the mesures relied upon
by Applicants, Respondent has dernonstrated that Applicants do not
afford any proof to substantiate their charge, and that the inferences
drawn by them from the mere existence of the measures in question are
entirely unjustified. It sufficeç,therefore, to reiterate that Applicants'
charge iç unfounded and without substance.
Vide Chap. 1, paras4-5,supra
2 Vide Chap.II,para. IO.supra. PART IV
Alleged violations by Respondent of
Article 4 of the Mandate
CHAPTER 1
INTRODUCTION
I. In this Part of the Rejoinder Respondent deals with section A of
Chapter VI1 of Applicants' Reply land Annex g thereto 2,concerning
alleged violations by Respondent of the "military clause", Article 4 of
the hlandate.
2. It may be convenient to draw attention at the outset to certain
basic features of Applicants' case on this subject, as it now stands. These
are the following :
(a} The case now formulated in the Reply exhibits a major shifting
of ground as compared with the case first presented in Chapter VI1
of the Memorials. The changes relate to the legal as wel as to the
factual aspects of the case presented, and manifest themselves
both in the general approach and in the particular charges made.
In the process the case originally made has in some respects been
abandoned entirely, and in others almost entirely. To a greater or
leçserextent each of the original charges is now sought to be founded
on new grounds, legai or factual or both; and a cornpletely new
charge of a dragnet nature has been added.
(b) On analysis, stripped of their veibiage, and correlated to true facts
which are in no way controverted by Applicants, the four charges
now sought to be preçented will be found to rest fundamentally on
the following propositions:
(i) As regardstheRegiment Windhoek: that although an institution
established, equipped and maintained solely for the training
of Native inhabitants of South West Africa for purposcs of
interna1 police and the local defence of the Territory, would
?$obfe considered to be a "military base or fortification" tvithin
the meaning and intent of Article 4 of the Mandate, and would
not be prohibited by that clause, an identical institution,
escept for the training being of European inhabitants of South
West Africa, is to be considered such a "rnilitary base" and
therefore prohibited.
(ii) As regards the alleged mililary landi.ngground in the Walvis
Bay area: that an installation admittedly situated outside the
boundaries of "the territory over which a Mandate [was]
conferred", as described in Article I of the hlandate, is never-
lIV. PP.553-564.
Ibid.. pp. 565-571 SOUTH WEST AFRICA
theless to be considered to be "in the territory" within the
meaning and intent ofArticle 4 of the Mandate '.
(iii)As regardsvarious landing strifis: that a few landing strips at
various places in South West Africa, which are in fact isolated,
unfortified and unmanned, and predominantly serving ordinary
administrative and civil purposes, are to be considered "military
bases" within the rneaning and intent of Article 4 of the
Mandate, and that their maintenance is therefore forbidden
inloto,merely because they are occasionally and intermittently
used by aircraft of the South African Air Force in the course of
training pilots for purposes of possible rescue operations,
internal security and the defence of the Territory, and "may
at any time be utilized for the purposes of a campaign" *.
(iv) As regards military activity in general: that maintenance
of the above landing strips, coupled with aUeged "build-up
of rnilitary strength in Walvis Ray" (Le.,outside the Territory),
taken together with alleged "great expansion in the school
cadet cor$s of the Territory" and the activity of "Comwzando
Units", and finally "joined with Kegiment Windhoek"4
(which is upon the facts purely a training institution for
purposes of internai police and the local defence of the Terri-
tory), havecreated a situation-
"... where there is the eqecivalentof a series of military
bases or potential military bases in the Territory . . .
(italics added) ,
or alternatively,
<'... where ... the Territory has been transforrned into a
'military base' within the meaning and intent of the Cove-
nant and the Mandate 5".
3. In Respondent's rcspectful submission, each of the above pro-
positions is sopalpably absurd that Applicants' case regarding the mili-
tary clause, being entirely dependent on these propositions, hardly merits
further detailed attention. However, for the sake of completeness,
Respondent doeçgive detailed attentionthereto inthesucceeding chapters,
the length of the treatment being occasioned mainly by the demonstration
of the fallacies, of thshifting of ground, and of the novelty, which mark
the Applicants' case as now presented.
4. Attached to Chapter VI1 of the Reply there is an Annex g which
purports to contain "Supplementary Material with respect to Rcspond-
ent sviolations of Article4 of the Mandate" 6.
To a large extent the material in the said Annex consists of a rnere
repetition or extension of arguments propounded by Applicants in
Chapter VI1 of the Reply, or of an addition of particulars to the matters
Although Applicants further state that they "do not quarrel with 'interna1
security and rescue operations in the Territ".Ibid. p.562, footnote r.
ltalics added.
' Ali quotations from IV, p. 563.
' IV,p. 564.
Ibid., p565. REJOINDER OF SOUTH AFRICA 353
dealt with in the said Chapter. To avoid repetition Respondent will,
therefore, in its treatment of the law and facts in answer to Chapter VI1
of the RepIy l, deal also with such of the material in the Annex as can
convenientlp be dealt with at the same tirne, leaving the remainder of
the material in the Annex to be considered in a finachapter 2.
1 Chaps. II and III, infra.
Chap. IV.infra. CHAPTER II
STATEMENT OF THE LAW
A. Introductory
I. Applicants in the Mernorials formulated the foIlowing legal proposi-
tions regarding the provisions of ArticIe 4 of the Mandate l.
(i) "Armed installations mot rellrtedta +olice$wotectioaor infernal
security fallwithin the class of 'military bases' or 'fortifications'
and are therefore prohibited by Article 4 of the Nandate 2."
(Italicsadded.)
(ii)" Facilifiesfor police or zltternal seczirily purfioses arpermitted,
but not military bases 2." (Italics added.)
(iii) "The type of facility, its location, srmament, equiprnent,
organization and place in the Union's administrative hierarchy
and chain of comrnand determine whether it is a military base
or fortification2."
2. ln dealing with Applicants' aforernentioncd propositions, Respond-
ent in the Counter-Rlemorial made, inter dia, the following observations:
(a) That there was a basic fallacy in propositions (i) and (ii) in that
Appiicants used the limitation in the first sentence of Article q of
the Nandate, which concerns the training of Natives. as their
criterion for determining whether a military installation or facility
was a "military base". Their propositions in effect ignored the
distinction betwcen, on the one hand, the training of Natives, which
in terrns of Article4 was prohibited, Savefor the purposes of internal
police and local delence of the Territory, and, on the other hand,
the training of non-Natives, in respect of which the Mandate coii-
tained noprohibition or limitation 3.
(b), That the said propositions employed the expression "internal
security", instead of the expression "local defence" which appeared
in Article 4, thereby in effect reducing the two concepts in Article 4,
viz., "internal police" and "local defence", to one, called by Appli-
cants "police protection or internal security" 4.
3. Applicants' reaction to the observations restated in paragrapli 2
above emerges from paragraphs (3) and (4) of Annex g to their Reply 5.
In paragraph (3) Applicants deal with the question of an aileged "incom-
patibility" of the Iwo "propositions" contained in Article 4 of the Man-
date, viz.,that Natives of the Mandated Territory may be trained for
police and defence purposeç, and that military bases and fortificatioiis
are prohibited. In this regarcl they advance the following interpretation
as "the most likety, andthe only reasonable, esplanation":
l'o facilitate referentothe seyarate propositionsa sub-paragraph nuniber is
assigiied to each.
1, 1)181.
Vide IV,pp. 59-60. - - -~ --
Ibid., p. 60. t
IV, pp. 566-567. REJOINRER OF SOUTH AFRICA 355
"bases and fortifications are forbidden, and no facility whose
purpose is to assist the training of natives for police and Iocal
defence is considered to be such a base or fortification '".
Respondent will deal later with Applicants' reasoning insoconstruing
Article 4. For the present Respondent is concerned only with drawing
attention to the effect of such a formulation, and to demonstrate that
Applicants iiow depart from their Statement of Law regardmg Article 4
as formulated in the 3Iernorials.
Firstly, Applicants now correctly speak of "police protection and local
defence", and no longer roll the two concepts into one 3.Secondly, how-
ever, the criterion of being related to police or local defence is now
treated by Applicants as applying only to facilities for the training of
Natives 4. And, inasmuch as they accept that none of Respondent's
facilities complained of by them relates to the training of Natives, the
said criterion now falls out of the picture altogether.
4. IIIthe last-mentioncd respect, Applicants say that-
"[sJince ... Respondent's military facilities exclude members of the
'Native' population ofthe Territory ... al1of such facilities must .. .
be scrutinizedin the light ofthesecondsentence of Article 4 and in the
broad çcopeof the last sentence of Applicants' 'Statement of Law' 5",
The last sentence in Applicants' "Statement of Law" in the Jlemorials
is the proposition marked (iii) in parngraph I above. Again it is evident,
therefore, that in respect of al1 their charges of alleged violation of the
"military clause", the propositions marked (i) and (ii) in paragraph I
above are now no longer relied upon by Applicants: indeed, the criterion
of being related to police or local defence is now treated as irrelevant 6.
j. In purported explanation of this complete departure from thestand
taken in the Memorials, Applicants allege that they learned that the
Territory's military facilities escluded mernbers of the Native population
only when the Countcr-3lemorial was filed; and they Say that, as a result
of this knowledge, "the immediate reason for part of (their) previous
formulationhas fallen away" I. In this regard Respondent observes that:
(a) Respondent's policy of escluding the Native population of South
West Africa from military training, and limiting such training to
the White inhabitants of the Territory, has been consistent ever
since the inception of the Mandate. The fact of the existence of
such a policy, and thnt the Permanent Mandates Commission was
fully aware thereof, appears from Respondent's annuai reports
to the League of Nations 8, from the Minutes of the Permanent
Mandates Commission 9, and from the attitude adopted by Re-
IV, p. 566.
Chap IV, inlra.
Vide para.2 (b), szkpra.
Vide para.2 (a). supru.
IV, p. 567. The last sentence of Applicants' Statement of theLaw iscited in
para. I (iii)srrpva.
6 Applicants try to keep it alive-vide Chap. IV, para. 12, infra-but nowhere
seek to apply it.
IV, p. 567.
Vide IV, pp. 54-56,64 and theannual reportsmentioned in footnotes I and 2
on p. 55 and footnote 2 on p. gG.
P.iV1.C..Min.,SVIII. pp. 147-148; SSVII, p.170 and XXXI, p. 135. SOUTH WEST AFRICA
spondent in answer to the League Council's request in 1924for
the views of Mandatories on military recruitment l. Finally, the
existence of such a policy was also common knowledge amongst
commentators on themnndatesystem 2.
With regard to the position after the dissolution of the League,
the Cornmittee on South NTestAfrica rnentioned specifically in its
1959 report that-
"{nlew legislation governing the defence of the Union of South
Africa and South West Africa, the Defence Act No. 44 of 1957.
\vas brought into force in 1938. 'Non-Europeans' are excluded
from compulsory military service and other provisions of the
Act, however, except that they rnay be engaged for auxiliary
services as guards or watchmen or to perform other non-
combatant duties, or they may engage themselveç voluntarily
for service in the South African Defence Force in such capacity
and subject to such conditions as may be prescribed 3".
In the circurnstances it is, to Say the least, surprising that Appli-
cants, who profess to have such a keen interest in what takes
place in the Territory, were unaware until the filing of the Counter-
Mernorial that tliere is no military training of Natives in the Terri-
tory.
(bJ But, even if Applicants were in fact unaware of Respondent's
aforementioned policy, this would still not in itself explain the
departure from their previous formulation and attitude.
It wiIl be recalled that,in their application of the Lawto the facts
in the Mernoriais +,AppIicants sought to appIy the criterion of
"police and interna1 security purposes" to each and every one of
the "installations" and "facilitieç" complained of, without drawing
any distinction in that regard between Natives and non-Natives.
Consistently with the attitude now adopted in the Reply this
cannot be esplained except on the basis that Applicants thought
that each "facility" or "installation" involved the training or use
of Natives ody, and that the purposes extended beyond police
and local defence. Respondent finds it hard to believe that this
was the case.
6. Having demonstrated in the precedirig paragrayhs that Applicants
in the Reply diçcard the interpretation of Article 4 contended for in the
Memorials, Respondent will now proceed to a consideration ofApplicants'
comments on the meaning and effect given to the clause by Respondent
in the Counter-Mernorial 'j.
Appiicants commence by saying-
"Respondent has given a narrow meaning to the 'military clause'
contained in Article 4 of the Mandate by the use of dictionary
defmitions and its own assertions '".(Footnote omitted.)
P.M.C.. Illin., VIp. g.
Wright, Q.. Mandates undcrthe Leagueof Nations (1930)p.472 andHall, H. D.,
MandG.A.,O.R.en,ourleenlh Sess., Sufipl. 12.(A/+igi), p.12 (para.84).
' 1, pp. 182-183.
Vzde paras. 3 andq,supra.
IV.PP. 47-53-
' Ibid.. p. 553. REJOISDER OF SOUTH AFRICA 357
This comment is wholly unwarranted. With regard to the first sentence of
Article 4, Kespondent stated that the only possible construction thereof
was that the Mandatory was permitted to give military training to
Natives for the purposes of interna1 police and local defence, and that,
inasmuch as the Article as a lvhole contained no provisions restricting the
rnilitary training of perçons other than Natives, such persons couid be
trained for any lawful purpose l. This construction, which gives full
effect to the plain and ordinary rneaning of the words employed therein,
can surely not in any way be regarded as "narrow", or asresting on
"dictionary definitivns" or on Reçpondent's "own assertions".
\Vith regard to the second sentence of Article q 2,Respondent did rely
on dictionary definitions of the term "military base", and with reference
thereto Respondent stated the proposition that failing the purpose of
utilization for operations or a canipaign, actual or prospective, by a force
or an army. a place or facility couid not be said to be maintained as a
military ornaval b.ase.Respondent also rirgued that, inasmuch aç military
training of the inhabitants of the Territory was permissible in terms of
Article 4, and would indeed fa11within Respondent's dutiesrelative tothe
Territory, il was inconceivable that the prohibition against miIitary bases
was intended to cxtend to ordinary military training facilitie3, and in
support of this contention Respondent referred to actual milital
activities in other mandated territories3.Also in regard to this part of
Article 4, Respondent cannot understand how Applicants can make the
charge that Respondent's construction. which gives full effect to the
plain and ordinary meaning of the words employed, read in the context
of the Article as a whole, and which is in conformity with what was
practised in other mandated temtories, is "narrow".
7. Applicants contend further that the meaning assigned to Article 4
of the Mandate by Respondent is inconsistent with-
(a) "the broad purpose of the military clauses in the mandates
system",
(6) "the plain meaning of the clause on its face", and
(c) "the interpretation of the military clauses by the Permanent
Mandates Commission" '.
Respondent will in the faUowing paragraphs deal with the commentr
made by Applicants under the said heads.
B. The Purpose of the Military Clause
8. Applicants Say that "[tlhe military clauses had a broad general
purpose and the terms therein csnnot be narrowly interpreted" 4; and
they cite Stoyanovsky to the effect that the basic principle of the said
clauses was ". .. the complete neutralization of mandated territories in
the event of war, whether the mandatory isbelligerent or not" +.(Foot-
noteomitted.)
Respondent ha already indicated that its interpretation of Article 4
IV, p.48.
* To which Applicants' said comment more particularly relates-videibid.,
p. 553.footnote I.
' IVI p.51.
+ Ibrd., p. 553.35$ SOUTH WEST AFRICA
gives full effect to the plain and ordinary meaning ofthe words employed,
and that the charge of a "narrow" construction on its part is unfounded l.
The statement of Stoyanovsky quoted by Applicants goes no further
than to expound a principle that, in the event of war, there waç to be
cornplete neutralization of rnandated territories even where aalandatory
was abelligerent. The concept ofneutralization inthe event of a \vardoes
not, however, exclude the right and duty to act in defence of the man-
dated territory itçelf, and to train the inhabitants for that purpose.
Respondent's contention is therefore not in conflict with Stoyanovsky's
view.
g, Applicants further charge Respondent with qualifying the language
of the nlilitary clauses in t~vorespects.
In the first place, they Say,Respondent qualifies it-
", .. bÿ stating that the clause '.. was probably ... intended to
prevent tlie Mandatory from using the Mandated Territory as a base
of aggression, by training large Native armies, or by establishing
military or naval bases in the Tcrritory' 2". (Footnotc ornitted.)
By quoting only part of Respondent's statement relative tothe purpose
of the military clause, Applicants create a misleading impression. Re-
spondent's statement was as foilows:
"The abovementioned safeguard, which was reflected in Article 4
of the Mandate for South West Africa, was no doubt coitceiuedi~ the
i~zlerestof the indigenous ~ofiulation so as lo prevent their nailitary
exfiloitntion by the Mandatory. It \vas probably also intended to
prevent the Mandatory from usitig the Mandated 'ïerritory as a
base of aggression, by training large Native armies, or by establishing
military or naval bases in the Territory 3." (Italics added.)
Regard being had to the full stateinent, including the italicized aords
ornitted by Applicants in their citation from the Couiiter-Memoriai,
Applicants' criticisrnof Respondent's suggestions as to the purpose of the
rnilitary clause is unwarranted. Respondent did not contend, as Appli-
cants aver, "that military bases must somehow be related to aggressive
designs" nor doeç Respondent's rendering of the purpose of the tnilitary
clause cal1 for AppIicantslcomment, by way of as submissioii, that "the
purpose of the Mandate is to benefit the inhabitants of the l'erritory"
Respondent accepts that the establishment in the Tcrritory of a facility
which is a military or naval base is prohibitecl, irrespective of the use to
which that facility may be put. What liespondent, however, does con-
tend isthat in determining whether a particular facility is, or is not, a
base within the contemplated meaning of Article 4, due regard must be
had, i~steralia,to itç intended purpose, whether for preçent or future use.
In this respect Applicants' statement that-
". .. even thoiigh military and naval bases, or fortifications, may
have no presently intended offensive purpose. . .they are inconsist-
ent with the Mandate because they are susceptible of offensive
use 2",
begs the question at issue. Militari and naval bases and fortifications are
' Vide para. 6.siipra.
IV, p. 553.
Ibid. p.47. REJOINDER OF SOUTH AFRICA 359
prohibited even though their present use may be innocent. But in deter-
mining whether a facility is a prohibited installation, regard must be had,
inter alia,to its intended purpose. To regard a particular facility asa
progbited installation mereiy because it is, in Applicants' words, "sus-
ceptlble ofoffensive use", must lead to farcical results, inasmuch as many
innocent inst allations-harbourç, airfields, roads,etc.-tvould then have
tobe classed as forbidden installations.
IO. Applicants' next point of criticism is directed at Respondent's
statements that there was at the Paris Peace Conference-
". ..no doubt that a BIandatory was to be entitled to train the
inhabitants of a hlandated temtory (including the Natives) for the
defence of that Mandated territoryl",
and that "[tlhe duty-and the right-to defend the Territory, is that of
Respondent .. ."2.
Applicants Say that Respondent's construction to the effec ttat ithaç
a right and dutyto defend the Territory is-
". .. wholiy out of keeping with the nature and substance of the
Mandate institution, and ignores the basic rclationship between the
hlandatory and the League of Nations 3".
In propounding tlieir argumentin support of tlie aforegoing contention,
Applicants repeat their quotatioii from Stoyanovsky to the effect that the
objective of the military clauses was the "complete neutralization of the
mandated territories in the evenl of war" 3.Respondent has already dealt
with this staternent of Stoyanovsky 4, and reiterateç that it is not in
conflict with Respondent 's contention-i.e., that Respondent has the
right and duty to act in defence of the Territory if the Territory itself is
attacked, and may for that purpose employ not only the inhabitants of
the Territory, but alsoRespondent's own forces.
II. By reference next to Articles I and S to 17 of the Covenant, AppIi-
cants Saythat-
". .. the primary safeguard for [Mandated] territoriesdid not reside
in the strength of the Mandatory, but in the system of collective
security established by the League 3".
A proper reading of the said Articles shows thnt the intention of the
authors was to establish through the League collective security for the
preservation of peace-a safeguard intended for the benefit of al1States.
In no way, however, could these Articles be read to contain or support
the proposition that the only safeguard for mandated territories resided
in the system of collective security established by the League, to the
exclusion of any right or duty on the part of Mandatories to repel attacks
on the mandated territories cornmitted to their charge. In the absence of
clear provision to the contrary, a duty to promote the well-being and
progress of the inhabitants to the utmost must incluclea duty to take
such steps as the Mandatory may consider proper to protect them against
aggression. This would naturally inchde a right, in the Mandatory's
discretion, to train the inhabitants of the mandated territory for local
l IV, p.50.
Ibid., p. 48.
3 Ibid.p. 554.
' Vide para.8,supra:360 SOUTH WEST AFRICA
defence purposes, and, as a necessary corollary, to use such troops in
repelling any attack on that territory. The fact that the rnilitary training
of Natives was not completely prohibited, but was permiited for police
and defence purposes, shows in itself that the system of collective
security established by the League could not have been intended to be the
sole safeguard for rnandated territories against aggression. As regards
trainingand using inhabitants other than Natives for such purposes, there
was no provision prohibiting this or even qualifying the discretion of the
Mandatory in that regard. And by the same token there could be no
reason, whether based on legal or moral considerations, why the Man-
datory should not have used its own troops to assist the inhabitants of a
mandated territory in the defence of that territory when the latter was
threatened by aggression.
These remarks apply equally to the estract cited by Applicants from
Duncan Hall ', and to Applicants' statement that "tlie mandates system
was founded upon a new, dynamic concept of collective responsibility" l.
12. Applicants in this regard state further:
"lt is consistent with this [the concept of collective responsibility]
that the League çhould bear the ultimateresfionsibiEit yn theeventof
an altackupon a Mandated Territory severeenoctghto ovemhelmthe
lzativeforceswhich would have been trained for 'interna1police and
the local defence of the territory' l."(Italicsadded.)
The ztltimate responsibility of the League for the preservation of peace
is not in issue. Tliepoint in issue is the right of a nlandatory to resist an
attack upon a maiidated territory, and for that purpose to make use ofthe
trained inhabitants of the territory (Nativesand non-Natives), as well as
its own forces.
Applicants advance no reasons, moral or legal, in justification of the
proposition that a Mandatory should, in the event of an attack on the
mandated territory, allow the Native forces in the territory to be over-
whelmed without calling in the aid of the non-Xative forces of the tem-
tory or ofits own forces.
This untenable proposition advanced by Applicants is, in fact, con-
troverted by the practice of Mandatones during the League of Nations
period to provide for the local defence of territories under mandate by
means not only of the Native inhabitants of such territories, but also
of non-Native troops, and even of troops brought into the mandated
territories from outside. The question of the training and use of non-
Natives in the rnilitaryorganizations of rnandated territories willbe dealt
rvith later in this chapter =. For specific examples of the use made of
extraneous forces in other mandated territories Hespondent refers to the
position which obtained in Tanganyika, Ruanda-Urundi, and the Came-
roons (uncler British Mandate).
(a) Tanganyika :
A substantial number of the troops stationed in the rnandated
territory mere for many years recruited in Nyasaland for service in
Tanganyika and elsewhere 3. The officers of the military forces
lPara..14.infra.
V.M.C., ilfin.IX, p. 147;XV, p. 121;XVIII, p. 34andXXII, pp. 133 and 142. REJOINDER OF SOUTH AFRICA 361
stationed in Tanganyika were European officers of the British
Regular Army secondedforservice tothe King's African Rifles l.
(b) Rwnda- Urundi :.
For many yearsthere was no rnilitary training of the Native inhabit-
ants of this mandated territorÿ. For its defence the Territory relied
on the extraneouç forces of the Belgian Congo 2.
(c) Canzeroons (under British Mandate) :
The Territory relied for its defence and interna1 security on extra-
neous Nigerian military forces, which were used in the mandated
territory.The Territory also contributed towards the cost of main-
taining the Nigerian military forces 3.
The practice on the part of Mandatories to employ extraneous forces
for the defence of their mandated territories was mentioned by Lord
Lugard as early as the Third Session of the Permanent Mandates Com-
mission. He said :
"There are some rnandated territories which are administered as
an integral part of the neighbouring colony or protectorate of the
mandatory Power. In çuch cases a separate force, either a military
force or an armed police constabulnry, is not usually raised for the
defence of the mandated territory itself, and a detachment from the
permanent forces of the neighbouring territory of the mandatory
Power is sent into the country for its control and defence. It would
be relieved in due course by another detachment and would return
to its own headquarters 4."
At no stage was it even suggested in the Permanent Mandates Com-
mission or by the League Council that the use of extraneous forces in the
defence of mandated territories could be regarded as an infringement of
the relevant military clauses. And at the outbreak of the Second World
War no doubts were raised as to the right of Mandatories, where their
mandated territories were threatened or invaded by aggressors, to defend
them by the use of the Mandatories' own forces, as well as other extra-
neous forces, both European and non-European 5.
With regard to Applicants' statement relative to particular provisions
inserted in the A Mandates, Respondent refersto what is stated in Chap-
ter IV, paragraph 6, infraR .espondent contends that such provisions are
of no assistance in an interpretation of the military clausesin the B and C
Mandates.
13. Applicants deal nest with what they describe as "attempts" on the
part of Respondent-
". .. to exclude military training camps from the definition of
'military base', [by] referring to 'considerable permanent militasr
forces stationed within (the) boundaries (of practically al1 the
African territories under Mandate) '6".
l P.hI.C.,Min., XV, p. 121.
P.M.C.. Min., IV, p.68;XIV. p. 127;XXII, p. 247; XXIV, p. 84 and XXXV,
p. 61.
P.M.C., Min., XIV, p. 149 and XIX, p. 27.
* P.ilf.C.ilfin.III, p1g6.
5 Vide Hall, H. D., Maizdaîes, Dependencies and Tvusteeship (1948).71, 260
and267-269.
IV,p. 554.36~ SOUTH WEST AFRICA
Applicants say that Respondent fded to point out that "such forces
were almost entirely composed of natives", and propound the foilowing
argument :
"Al1 af the other 'African territories under Mandate' were under
'B' Mandates, the language of which prohibited the Mandatories
from organizing '.. . any lzativmilitaryforcesin the territory except
for local police purposes and for the defence of the territory'. Re-
spondent's whole argument becomes strained as soon as the word
'native' is added to al1 of Respondent's assertions concerning
'permanent military forces' l" (Footnoteç omitted.)
Again Applicants' comment is unwarranted. The military clause in each
of the B Mandates-save the Mandates for French Togoland and the
Carneroons, which contained additional provisions-read as follows:
"The Alandatory shali not establish any military or nava1 bases,
nor erect any fortifications, nor organise any native military force
in the territory except for local police purposes and for the defence of
the territory*."
In support of its argument that the prohibition againstmilitary bases was
not intended to extend to ordinary military training facilities, Respond-
ent referred to the position which, during the lifetime of the League,
obtained in the B Mandated territories in Africa. A number of the African
terntories under mandate had large permanent military forccs stationed
within their boundaries and trained Natives for police and local defence
purposes. Respondent pointed out that these territories had facilities for
their military forces, [or military training,and for supplies,maintenance,
armament, material and transport, and that it was at no time suggested
ihatinproviding such faciljtiethe Alandatories concemed had establiçhed
"military bases" or "fortifications" in violation of the military clause.
This argument is sound and above criticism. In fact, Applicants pro-
pound the same basic argument in their Reply 3.
What Applicants do suggest, however, as a contention underlying
their interpretation of the military clause in both the B and C Mandates,
is that Respondent's argument holds good only for the training of Natives
and not for the training of non-Satives.
Applicants advance no reason for rnaking this distinction, other than
indicating that the training of Natives for purposes of internal police and
local defence was specifically mentioned in the military clause. There is,
however, no ground for the distinction sought to be drawn by Applicants.
The training of Natives for purposes of internal police and-localdefence
was specifically rnentioned in the military clause for a particular reason,
namely ta state the permissible purposes for which Natives COL$ be
trained, as an exception to the general prohibition against the military
training of Natives, which was also specifically contained in the clause.
The clause did not, either in express terms or by implication, prohibit or
restrict the traininof non-Natives, and in this respect the wording of the
clause was in keeping with its intended purpose, as explained in dis-
cussions before and during the Paris Peace Conference 4.
. . a
IV. p. 554.
IV, p. 555. and in Annex gp. 566 (para. 3).rica (Tanganyika Territory).
+ Vide IV, pp48-50. REJOINDER OF SOUTH AFRICA 363
14. There can be no doubt,both on the plain meaning of the wording
of the military clause, and in accordance with its purpose, that it was
permissible for Mandatories-both in the B and C Mandated territories-
to train the inhabitants of such territories,Nadive aladnon-Native, for
purposes of internal police and local defence.
The qualification which Applicants seek to introduce, namely that the
training of non-Native inhabitants of the B and C Mandated territories
was not permitted, does not flow from the wording of the clause, and is
not consistent with the history of events and proposals before and during
the Paris Peace Conference. Nor is it consistent with the position which
in practice obtained in the African mandated territories during the life-
time of the League. Applicants Say in this last-mentioned regard that the
military.forces stationed inthe African territories under mandate "were
almost entirely composed of natives" l.The use of the word "almod" in
itself refutes Applicants' contention that the military training of non-
Natives was not permitted. In fact the composition of such forces is
significantly revealing.
In practically al1 cases such forces included Emopeans serving as
officers. In Ruanda-Urundi a whole European volunteer corps was
created, and the Permanent Mandates Commission was informed that-
"[i]t was desirable that the Europeans should be organized on a
military basis in order to be prepared for any surprise.The volunteer
corps would only be used in case of disturbances or other unusual
occurrence that troubled the peace of the territory=."
And as regards the rnilitary orgaiization in South ~ést Africa, Respond-
ent has already indicated that the Permanent Mandates Commission
was well aware that it consisted solely of Europeans 3.
At no time was it suggested bj~the Commission or the League Council
that the training and use of non-Natives by Mandatories for police
and local defence purposes could be regarded as a violation of the mili-
tary clause.
In the premises, it is submitted thatthe position taken by Applicants
has no juridical basis, and that their attemptedattack upon Kespondent's
contention relative to the purpose of the military clause is without
substance.
C. "ThePlainMeaning of the Clause on its Face"
15. Respondent has already indicated that the military clause con-
tained no provisions regarding the rnilitary training of non-Native in-
habitants of the mandated territory. Itwas concerned solely with the
training of Native inhabitants and with the prohibition against military
and naval bases and fortifications. The training of Natives for internal
police and local defence was specificallymentioned in the clause in order
to prescribe the permissible purposes for which the Native inhabitants
could be trained, aç an exception to the general prohibition against their
military training. In the case of non-Natives there was no prohibition, and
therefore no need for an exception to a prohibition. There canbe no
l IV,p. 554.(Italics added.)
P.M.C.,Min.. XXIV, p. 84.
3 Videpara. 5,supra.
VideIV, pp. 553and 555,364 SOUTH WEST AFRKCA
question but that on the plain and natural rneaning of the clause, on
the face thereof, the Mandatory was entitled to train any of the inhabi-
tantç of the Territory, Native and non-Native, for internal police and
local defence of the Territory. For the purpose of such training there
would, of course, have to be training facilities and, in Respondent's
submission, it followsthat on a proper reading of the clause the prohibi-
tion against military bases was not intended to extend to facilities
utilized solely for the normal training of inhabitants for internal police
and local defence purposes. As has been noted 1, Applicants in fact adopt
the very same line of reasoning *,but seek to limit it to Native forces,
i.e.,so as to conclude that ". .. the prohibition on military bases [coula
not have] beenconsideredas being a$$licable to native forces" 3. (Italics
added.) This limitation in their conclusion results from a basic.premise,
namely that the Mandatory was permitted to train only Natives and not
also the non-Native inhabitants, and not from anything contained in or
suggested by the clause. On the contrary, as already indicated 4, this
premise is not supported by the plain meaning of the clause, and için-
consistent with the purpose of the clause and with the practice of Man-
datories during the lifetime of the League of Nations.
It need only be stated further that none of the arguments advanced by
Applicants in paragraph 6, at page 555of their Reply, serves to support
the limitation which they seek to import into the clause. There is no
need to give consideration to the soundness or othenvise of these argu-
ments. Sufficeit to Saythat each and every one would, if good in relation
to the training of Natives, also hold good for the training of inhabitants
of a mandated territoryother than Natives.
D. TheViewsof the Permanent MandatesCommission
16.Applicants Say that-
"[tlhe views of the Permanent Mandates Commissionon the rnilitary
clauses demonstrate with singular clarity the common assumption
that the were intended to be scrupulously adhered to and vigorously
enforce&". [Footnote omitted.)
Respondent accepts this as a correct statement of the attitude of the
Commission,but fails to seeitsrelevance to the issuesunder consideration,
which concern the meaning of the clause, It is, in Respondent's sub-
mission, a camplete lzon sequitur to infer, as Applicants do 5,that the
"common assumption that [the military clauses] were intended to be
scrupulou~ly adhered to and vigorously enforced" necessitates a vague
and so-called "broad interpretation" of the phrase "military or naval
base"-which really amounts to revision and not interpretation-as
opposed to the natural meaning thereof relied upon by Respondent.
Nor can support for AppBcants' proposition be gathered from the
discussion in the Commission concerning the alleged existence of a naval
base in the Territory under Japanese Mandate, to whichreferenceis made
l Vide para. r3, supra.
IV, pp.555 and 566.
Ibid.,p.555.
+ Vide paras.13-14, supra.
IV* PP 555-556. REJOINDER OF SOUTH AFRICA 365
by Applicants. Applicants appear to attach significance to certain ques-
tions put in that regard to the representative of Japan (Mr. Ito) by
members of the Commission. In the first place, Applicants regard as a
"sweeping approach" on the part of the Commission a question whether
Nr. Ito knew from a reliabie source that " 'no establishment existed in
the South Sea Islands that could 6e calbd a navab base' " l.Respondent
fails to see where the expression "cowld6e called a naval base" takes
Applicants in thcir argument. The question asframed by BI. Rappard
could never have been intended to signify that the Commission was
concerned about the establishment of a facility which, on a proper
construction of the military clause, could not be regarded as a naval base.
Nor is the matter taken further by the question put by the Chairman of
the Commission, namely whether the works undertaken were "intended
only to+romote mercantile navigation"'-a question whch most certainly
was pertinent tothe matter then under enquiry, and ~vhichdemonstrates
the correctness of the contention consistent ly advanced by Respondent ,
Le., that in determining whether a particular facility is a prohibited
installation, regard must, intea rlia, be had to its intended purpose 2.
Finally, Applicants appear to suggest, on the strength of one of the
questions asked by the Chairman of the Commission, that the presence
of a "single soldierora single sailorin . . [a] ... territoryrrndermandaaate"
would constitute a violation of the military clause 3.Respondent submits
that the suggestion is too preposterous to warrant discussion.
17. Applicants' statement that the only meaning which may be given
to the second sentence of Article 4 of the Mandate "is the broadest
possible interpretation consistent with complete neutrality of the man-
dated territory" 3,isa repetition of the proposition advanced at page 553
of the Reply with reference to a quotation from Stoyanovsky, which
hasalready been dealtwith 4.
18.Arguing further in justification of their novel approach, Applicants
Say :
".. . narrow dictionary definitions of 'military base' are wholly
incompatible with the interpretation laid upon such term by the
Permanent Mandates Commission and inconçiçtent with the entire
thrust ofthe Mandates System 5".
In the first place, Applicants produce no evidence of an "interpreta-
tion" placed upon the term "military base" bythe Permanent Mandates
Commission. Perhaps their contention in this regard is that the question
put to the representative of Japan by the Chairman of the Commission,
regarding "a single soldier or a single sailor", is indicative of an inter-
pretation laid upon that term by the Commission. Indeed, when dealing
with the facts, A plicants put the same question to Respondent relative
to the ~e~iment % indhoek 6.Tnthis regard Respondent repeats that it
wouid be preposterous to suggest that the question put by the Chairman
of the Commission was intended to reflect an opinion on the part of the
l IV,p. 556. (Italicadded by Applicants.)
2 Vide para.g, supra.
IV, p.556.
Vide para. 8,supra.
6 Ibdd., p559. Vide also Chap. III, par6, infra.3'33 SOUTH WEST AFRICA
Commission that the mere presence of "a single soldier or a single sailor"
in a mandated territory would constitute the establishment of a base in
terms of the military clause. Ifthat had indeed been the opinion of the
Commission, then it must follow, in view of what has been stated above
relative to the practice in the African mandated territories l,that the
Commission knowingly allowed large scaleviolations of the clause.
Secondly, Respondent does not understand what Applicants intend
to convey by the expression "entire thrust of the mandates system".
Respondent agrees with Applicants' statement that the prohibitions
contained in the military clause were conceived in the interests of, iltter
alios, the inhabitants of mandated territories 2,and that there was a
"system of coIIective responsibility and security expressed by the man-
dates system" 3. Respondent is, however, at a loss to see how the dictio-
nary definitions referred to by it can be said to be inconsistent with these
Ieatures of the mandate system-if these are indeed the features relied
upon by Applicants as giving "thrust" to the system. There isno indi-
cation that the authots of the system, when they used the term "military
base", had in mind anything else than what is signified by the plain and
ordinary meaning of the words employed, which is also the meaning
assigned thereto in the dictionaries.
19. With regard to the dictionary definitions ofthe expression "mili-
tary base" cited by Respondent, Applicants also say:
"Respondent bas, in effect, limited the meaning of the term
'military base' to coincide with the existence of a state of war,,since
neither 'operations' nor a 'campaign' can truly be said to exist other
than in wartime 3."
Arguing further that "the Mandates contain no language which can be
interpreted as prohibiting military installations onZyin ti~e of war", but
that, on the contrary, "[tlhe purpose and application of Article 4 is
obviously ilzfime of fisace",Applicants conclude as follows:
"It is a distortion of the clear language and intent of ArticIe 4
to argue that the term 'military base', as used in all 'B' and 'C'
Mandate agreements, referred only to operatiolasor carnpaigns,
'actual or prospective' 3." (Footnoteomitted.)
In so arguing Applicants are in effect attributing to Respondent a con-
tention which it has not advanced.
Respondent, in referring to the dictionary definitions of the expression
"military base", contended that-
' 6'... failing the purposeof utilisatiola for operations or a campaign,
actual or pros$ective,by a forse or an army, a place cannot be said
to be maintained as a military or naval base 4".(Italics changed.)
Applicants' reproduction of this contention is completely at fault. The
contention centred round the "pur$oseof utilisation" of a facility-i.e.,
the purpose for which it was intended to be used-and was not dependent
on actual utilization of the facility for such purpose. Applicants have
attributed no significance to the fact that the words "operations or a
1 Paras. 12 and 14, sufira.
IV, p.557, Vide para. 9,supra.
3 Ibid., as to whichvidepara. II,supra.
4 IV, p.50. REJOINDER OP SOUTH AFRICA 367
campaign" were expressly qualified by the words "actual or prospictive".
The word "prospective" amply covers the possibility of a base being
estabiished in tirne of peace, for the.purpose of utilization in time of \var.
Respondent therefore in no way limited the meaning of the term 'military
base' to coincide with the existence of astate of war. It is fully aware that
the mandates contained no language which could be interpreted as pro-
hibiting military installations only in time of war, and it did not construe
the military.clause as having that meaning.
zo. With further regard to the definitions of the expression "military
base" cited by Respondent from dictionaries, Applicants statethat they
"are not in the least prepared to accept arestrictive definition of 'military
base' which is limited to the 'operations or campaign' of a 'force or an
army' "; and they proceed to quote other dictionary definitions, with the
1mpIied suggestion that such definitions are of a wider scope than those
quoted by Respondent l. Applicants have not, hosvever, chosen to
demonstrate in which way these definitions differ in essence from those
quoted in Kespondent's Counter-Memorial 2.On the contrary, Respond-
ent submits that the definitions cited by Applicants a11include the
following features as descriptive of a "rnilitary base", viz.,
(a) a locality or place, which
(b) is utilizeby a military force,
(c) for the purpose of the ~rojection or support of military operations,
i.e.,
(i) as a starting point for the operations, or
(ii) as a source of supplies or reinforcements required for the
operations, or
(iii) as both.
These definitions therefore in no way derogate from, but are, on the
contrary, in full accord with, Respondent's conclusion that-
". . . failing thpzcrpose of t~tilizationfor operatio~sor a campaig.la,
actztalor$respective,by a forceor alzarmy, a place cannot be said to
be maintâined as a miIitary or naval base =".
21. Applicants conclude their Statement of Law with the subrnission
that, for the reasons advanced by them, "a broad and flexible meaning
muçt be given to the term 'military base' in Article 4", an interpretation
which, they say-
". ..wouId be fully consistent with the test advanced by [them] in
their Memorials, namely that 'the type of facility, its location,
armament, equipment, organization and place in the Union's
administrative hierarchy and chain of command determine whether
it is a military base or fortificatio3". (Footnoteomitted.)
In reply Respondent reiterates that ~~plicants have in fact advanced
no reasons why effect çhould not be given to the plain and ordinary mean-
ing of the words employedin the clause.
With regard to the so-called "test" advanced by Applicants in their
Memorials, and now relied upon in the RepIy, the considerations men-
tioned therein could of course be relevant in a determination whether a
lIbid.pp.50.568 (para.5). ~. 1
Ibid., p. 557.368 SOUTH WEST XFRICA
particular facility isa military base or not; but, in jettisoning the other
"tests" contemplated in the propositions forrnulated in the Mernorials l,
Applicants in effect now disregard the most important consideration,
namely the purpose which a particular facility isintended to serve,
Indeed, the sa-called "test" is now so broad that it does not ascribe any
meanhg at a11to the expression "military base". And, as appears from
Applicants' application of the "test" to the facts, the "broad and flexible
meaning" not only ascribes no concrete content to the expression
"military base", but introduces into such expression concepts notionally
distinct from it, e.g.,ordinary training institutions and isoIated landing
strips. Applicants even seem to suggest that the presence of "a single
soldier or a single sailor" in a mandated territory could constitute a
military base The result of this new approach by Applicants is, as will
be demonstrated in dealing hereinafter with their treatment of the facts,
that they label particular facilitiesas forbidden installations for noother
reason than that they, Applicants, assert them to be such.
1Viciepara. 1,supra.
Vide paras.16 and18,supra andChap. III, para. 6,infra. CHAPTER III
STATEMENT OF FACTS
A. The RegimentWindhoek
I.Applicants' charge as originally framed in the Memorials was that-
"[tllie supply and maintenance facilities of the regiment, together
with the vehicles and material of the regiment itceli would appar-
ently constitute what is commonly known as a 'military base' l".
The sole reason then advanced by Applicants for the aforementioned
conclusion was the contention that the "purpose" of the regiment "(was)
not police protection or internal security"; and they sought to base this
contention on the follou?ing:
ta) that the Regiment waç part of an arrnoured corps, and that such
corps are not normally used for "police protection or interna1
security", and
(b) that the Regiment was part of a conventional military organization,
namely that of the "Union of South Africa", which "indicate[d]
that its purpose (was) not police protection or internal security"
2. Kespondent having exposed in the Counter-hlemorial the basic
fallacies underIying Applicants' version, as set out in the Iblemonals, of
the legal position3, Applicants now switch to another tack. Their charge
isnow very vaguely framed asfollows:
". . . the growth of Regiment Windhoek in its several foms since
1946, its incorporation as 'an integral part of the South African
Defence Forces', its establishment as part of the South West Africa
Command of the defence establishment of the Republic of South
Africa, and itscorresponding place in the Republic's administrative
hicrarchy and chain of command, constitute a violation of Article 4
ofthe Mandate 4".
3. Upon analysis, the reasons at present advanced by Applicants for
their conclusion that the Regiment Windhoek-
"... in its present form and strength, in organization and in opera-
tion, involves the maintenance of a 'military base', within the
meaning of Article 4 .. .5",
are apparently as follows:
(a) "There appear to have been no South African military personnel in
command of the pre-war Burgher Forces. The Administrator
açsembled the burghers for inspection and rifle practice; the Adrni-
1,pp.182-163.
Ibid., p. 182.
VideChap. II, para.2,supra.
4IV, p.55s.
Ibid.. pp. 559-560.37O SOUTH WEST AFRICA
nistrator had the power to cail them up for service; the Administra-
tor appointed the burghers' officers . . Inthe case of the 1927
Burgher Force, itwas commanded and controlled by a Chief Com-
mandant appointed by the Administrator '."(Footnote omitted.)
In contrast, Applicants point to the present-day position, in which
the Regiment Windhoek-
"... is part of the South African Armoured Corps of the Citizen
Force, which forms an integral part of the South African Defence
Forces lm.
(b) Applicants also compare what they term the "nature of the activity
and the equipment" of the pre-war Burgher Force with that of the
Regiment Windhoek today l.In this regard thep draw attention
to the fact that prior to1939 military training never developed to a
point beÿond rifie practice, and that during the years 1931 to 1935
' there was a curtailment even of that, whereas, in contrast, the
Regirnent Windhoek is at present equipped with light reconnais-
sance vehicles (i.e., armoured cars) and members of the force are
trained in the use thereof
4. Conceding that there have been these changes, Respondent cannot
understand how the mere fact of such changes cnn be charged as a vio-
lation of Article 4 of the Mandate.The inquiry is not whether there have
been changes in the administration, or in thequality or equipment, of the
military training of the White inhabitants of South West Africa, but
whether the changed situation involves violation of the said Article.
The purpose of the Regiment Windhoek is, and has always been, the
truilring of White inhabitantsof South West Africa with a view to the
iaternal +oEice and local defelacof the Terrifory.hlodernization of the
equipment of the Regiment, the training of men in the use thereof, and an
organizational arrangement whereby the Regiment is administered and
controiied as part of the South African Defence Forces, in no way dero-
gate from that purpose.
With regard to the functions previously performed by the Administra-
tor, Applicnnts seem to forget that the Adrninistrator was, and is, Re-
pondent's agent, acting under the control and instructions of Respondent.
Whether Respondent performs the functions mentioned by Ap licants
through one agency (the Administrator) or through another (the bepart-
ment of Defence) is inconsequential in deciding the point in issue.
As regards the personnel in command, although it may in passing be
mentioned that the Commandant of the Regiment Windhoek is an
inhabitant of the Territory, Respondent submits that also this aspect is
quite clearly immaterial. The issue turns on the question ~vhether the
complex of what has been established and what is being done at the
establishment constitutes a military base: Article4does not introduce the
agency or comrnand through lvhich the establishment and activities are
conducted as a relevant factor at all.In this regard, too, the practice
foiiowed in other mandated territories in Africa during the League of
Nations period is instructive; the rnajority of the officersof the King's
Afncan Rifles in the mandated Territory of Tanganyika, to cite but one
I Ibid., footnotes 5 a6. REJOINDER OF SOUTH AFRICA 37I
example, were British officers seconded from the Regular British Amy 1.
And as regards the chain of command, the above remarks apply with
equal force. Thus no objection was raised by the Permanent Mandates
Commission when the Mandatory concemed proposed in 1929- .
". ..thatthe military garrisons of Tanganyika and Nyasaland should
be grouped in one command under a Commandant who would
normally be resident in Dar-es-Salaam and wou1d act as military
adviser to the Governors of both territories ... 2".
And no objections were ever made by the Commission or the League
Council to the chain of command, officers or administration of the
forces, extraneous to the mandated territories, but employed therein for
purposes of police or localdefence 3.
. Finally, as regards the equipment used for training, Applicants surely
cannot seriously suggest that such equipment as may be necessary for
local defence and internal police purposes at the present tlme, 1s pro-
hibited, and that only such equipment as was in fact used during the pre-
Second World ]Var period is permjtted. And if Applicants cannot argue
along such lines, there is no point in their comment regarding equipment,
unless they argue further that the present equipment exceeds the
requirements of internal police and local defence, which they do not do.
In fact, they seem to contend that the purpose of the Regiment is
for "internal sccurity", and that it is "closely concerned with riot con-
trol" 4.
5. Applicants fail to state on what legal basis the changes to which
they rcfer, are said to constitute a violation of Article 4 of the Mandate.
What they do Say, however, is that such changes have taken place
"since the dissolution of the League of Nations, with benefit of super-
vision neither by the League nor the United Nations" =.
The relevance of this fact isnot appreciated, since Applicants do not
in their Statement of Law in the Reply-and the same can be said of their
Statement of Law in the Memorials-rely on the absence of League
supervision or United Nations supervision as a factor in dete~ining
whether a particular facility is, or is not, a forbidden installation-a
proposition which would, ofcourse, be without substance.
6. Applicants also refer once again to the discussion at the 28th
Session of the Permanent Mandates Commission regarding military
activities in the Japanese hlandated Islands 6,and pose the question:
"1s it poSçible for Respondent to confirm that '.. . there [is] not
a single soldier ... in the entire territory under mandate', and to
reply 'that there Lis]not in the entire territory a singIe soldier or
sailor on the active list?' *." (Footnote omitted.)
Respondent has already pointed out that it would be farcical to suggest
that the presence of a "single soldier or a single sailor" in a mandated
territory would constitute the existence of a military base, and therefore
l Vide Chap. II, pars.12,sopua.
P.M.C..Min.,XV,p. rio.
Vide Chap. II, para.12.supra.
+ Vide para. 7, ififm.
IV,p. 559.
Ibid.p,.556.372 SOUTH WEST AFRlCA
a violation of the military clause l. In this respect Respondent again
refers to the position which obtained in practicaiiy a11the B Mandated
territories during the lifetirne of the Leagu*.
7. In the premises aforestated, it follows, in Respondent's submisçion,
that Applicants' citation from the "South %'est News" regarding alleged
training of members of the Regiment Windhoek, inter dia, for interna1
police purposes, Le., inmethods for dealing with rioters 3, is pointlessas
regards the issue undcr consideration.
The same observation ~vould apply also to the citationby Applicants
of a statement made by Respondent's hlinister of 13cfcrice,on 28 March
1960. iii the South African Senate. It must be pointed out, hou-ever, that
the Minister was ~otdealing with the situation in South IVest Africa but
in Soutll Africa, and that the 12 infantry iinits meiitioned, as well as the.
AlobileWatches, were and are al1in South Africa. Applicants' citation of
the extract Irom the Minister's speech is therefore entirely irrelevant.
S. Despjte the fi11explanatjon given by Responderzt in the Counter-
Mernorial regarding the Regiment Windhoek 4, Applicants still profess
to be confuscd in their understanding of the organizatioii and activities
of the Regiment Respondent will thercfore once more explain the
factualsituation.
(a) The Rcgiment Windhoek is a Citizen orce c enit, which means
tlint itis composed of civilians who undergo peace-time military
training for certain limited periods, as cxpiriiiicd in sub-paragraph
(c) below. During the four years in which a trainee is enlisted as
a rnember of the Regiment, he carries on with his ordinary civilian
occupation Save for the intermittent periods when he isin attend-
ance at a traininginstitution.
(b) There is only one institution for military training in South IfTest
Africs, viz., the military camp at IVindhoek. The sole fünction
of this camp is to cater for the training of the members of the
Regirnent Windhoek during the periods set out in sub-paragraph
(c) (ii) below. The camp has ablution and cooking facilities only.
Sleeping accommodation is provided during evcry training course
by the pitchirig of tents. Except when n training course is taking
place, the training camp is total157inactive, i.e.,for the major part
of every year.
(c) In regard to training received by mernbcrs of the Regiment, the
following wns stated in the Counter-Meniorial:
"The Citizen Force recruits of the Iiegiment are ordinary
civilirins of South West Africa, whose only yeacetime military
obiigation is to attend two training courses, of fourteen days
eacli, during a period of thrce yearç, at the training camp at
Windhoek C'"
Tliis statement requires amplification and correction as follo~s:
lVide Chap.II, paras.16and iS, supra.
IV, pp. 51-52, and Chap. Iparas. 13-14supra.
IV,p. 559.
Ibid., pp. 54-57.
Ibid. p. 5G9
Ibid.,p.57. REJOINDEH OF SOUTH AFRICA 373
(i) The tu70 periods of 14 days each have been estended to three
weeks each '.
(ii) The said two periods constitute the only training which mern-
bers of the Regiment receive in South West Africa itself, and
also the only training in which they are combinecl as units of the
Regirnent. In thcsc respects the purport of the above stntement
in the Counter-Blcmorial was perfectly correct.
(iii) The total training wliicli tlie individuals eiilisted in the Kegi-
ment are obligcd to undergo, is not, however, confined to tlie
above *.The said two short periods of training are sprend over
the last threc years of the trainee's membership in tlie Regiment.
In his first year he receives, in the Republic of South Africa,
initial recruit training evtending over a pei-iodof nine months.
\nile receiving this training, such recruits are dispersed at
various traini~ig institutions in the Republic: in ot1ier words,
thep are niingled with recruits from al1 over the Republic
receiving the same basic training, and they consequently do not
then operate as a unit of the Regiment Windhoek.
(d) Except for attending the nforementioned courses, a member of
the Kegiment Windhoek has no peace-time military obligations,
snve that hc mny be called up at any time if needed for purposes
of restoring or ~nriintaining law and order. There Iias. however,
been no such cal1 up sincc the establishment of tlic Kegiincnt in
1946 under the then desigriation of the South West African Infan-
try 4.
(e) The Cornmanding Officer of the Regiment ivindhock, ritpresent
Commandant A. S. Engcls, is also a member of the Citizen Force
(i.e., not a profession:~l soldier in the Permanent Force) and is
predominantly occupied with his normal civil occupation. Ad-
ministrative work in connection with the Regirnent \Vindhoek is
attended to by the said Officer at the administrative headquarters
of the Kegiment at Windhoek after his normal working hours in
civil occupation. He receives his instructions, both in regard to
administration and in regard to training of the Regiment, from
cornmaiid headquartcrs at Windhoek. The said headquarters,
known as the South iVcst Africa Cornrnand, conçists of a I'ermnnent
Force staff of tliree officcrs and seven other ranlis permanently
stationed at Windliock. Its functions further include comrnand
Departmental information.
The contrary indication conveyed by the above-quoted statement in the
Counter-hlemorid, was due to a misundcrstanding, \\-hich is sincereiy regretted,
between Hespondent's Icgirl rcpresentatives and its Department of Defence. The
Defence authorities supplied information which was intended to relate only to
activities of the Regiment as such,ilSouth IVest Africa itself, being under the
impression that thatmas ail that was required, whereas the lcgal representatives
understood the information as relatingto the total obligation of the individuals
concerned. The misunderstanding was firstrealized inthe course of preparation
of this Rejoinder.
I.e., during the four yzars of his rnernbcrship of the Regiment at the termination
of which he is placed on the reservist list.
Vide IV,p. 56.374 SOUTH WEST AFRICA
over the administration and training of the Commandos and the
School Cadet Organization '.
In the light of the foregoing, the conclusions sought to be implied by
Applicants from their reading of the Counter-Memorial are invalid.
There are no "field operations" or "other headquarters" of the Regiment
"at a place other than Windhoek", as suggested. The Regiment is not
"stationed" at a place other than Windhoek. No part of the Regiment
iç at any time "permanently stationed" anywhere. The Regiment is
either assembled at the training camp at Windhoek for the limited periods
of training stated in sub-paragraph (cj (ii) above, or totdly inactive 3.
g. In reply to Applicants' concluding reminder that "Respondent is
applying its own narrow and inappropriate definition of 'military base'
to the Regiment in order to conclude that there is no violation of Article
4", as opposed to what Applicants term "the broad thrust of the language
of Article 4" 4,Respondent says that there is no question of any "narrow
definition" on itspart, and refers to what has been stated in Chapter II
above regarding the meaning and purpose of the Article.
IO. Respondent submits that in the prernises aforestated Applicants'
contention that the-
"... Regiment Windhoek, in its present form and strength, in
organization and in operation, involves the maintenance of a
'military base', within the meaning of Article 4of the Mandate ...
hasno foundation whatsoever.
B. TheMilitary Landing Groundin the Walvis Bay Area
II. Also with regard to this facility Applicants now shift from the
stand talcen in the Memorials.
The charge made in the Memorials was that the landing ground in
question was one of three "military bases" maintained by Respondent
"zuithin theTerritory" 6.
It appears that Applicants were inthis respect misled by a report of the
Cornmitteeon South West Africa '.Respondent explained in the Counter-
Memorial that the facility in question is not situated in the Territory
which was mandated to Respondent #.
Although this explanation is accepted by Applicants ', they now take
the position that there is a violation of Article 4 despite the fact that the
facility in question is not "within the Territory".
12. Upon analysis, the only reasons advanced by Applicants for the
contention aforestated are the following:
1 Vide para.23, infm.
3 IVide sub-para.(cl (i), supvaregarding the basic trainiof individual mernbers
of the Kegiment in South Xfrica.
+ IIbid., pp559-560,
1, p. 181.The only reason then advanced by Applicantfs or theircontention
that the said facility rvas a military base was that it "is apparentnot intended
for police or interna1 security use1,p. 183.
'1, p.1Sz.
IV, PP- 58-59.
Ibid., p.$60. REJOINDER OF SOUTH AFRICA 375
(a) "The addition of substintially greater military and naval
elements to Walvis 13ay is, in relative terms, the 'establish-
ment' of a base since the Mandate was conferred and/or since
the dissolution of the League of Nations l", and
(b) "Furthermore, Walvis Bay must, in a military sense, be con-
sidered to be 'in'South West Africa, inasrnuch as it is completely
surrounded by territory subject tothe Mandate and necessarily
depends thereon for essential services, transport, communica-
tions and supplies, including water 2."
In the firçt place, assuming for purposes of argument that Applicants'
geographic and factual description of Walvis Bay as "cornpletely sur-
roundcd by territory subject to the Mandate and necessarily dependent
thereon", is correct-a matter with which Respondent will deal later 3-
what legal justification is there for considering it, "in a rnilitary sense",
to be "in" South West Africa? Appiicants do not referto, nor isRespond-
ent aware of, any legal principle which under such circumstances would,
"in a military sense" or in any other sense, constitute one territory part
of another.
13. Secondly, Applicants err in the facts stated as the basis for their
proposition. The Port and Settlement of Walvis Bay is not "completely
surrounded" by the Tenitory of South West Africa, nor does it "necessa-
rily depend thereon for essential services, transport, communications and
supplies, including water". Walvis Bay is approachable from the sea
without entering or crossing any part of the Territory of South West
Africa. Although use is in fact made of certain services provided from the
Territory, such as road and rail transport, telephone and postal communi-
cations ', Walvis Bay is not "necessarily" dependent thereon. Nor is
Walvis Bay dependent on the Territory of South Africa for its
water supply. In fact it does not obtain its water supply from the Terri-
tory.
14. Applicants seek to bolster up this contention to which they are now
drive,, with the statement that-
"[tlhe central purpose of the military clause and the intent of the
framers of the Mandate, moreover, was the complete neutralization
of the Territory and the protection of the inhabitants from attack
provoked, interdia, by the presence of military or naval bases l".
In the respect under consideration, the purpose of the military clause
and the intent of the frarners of the Mandate appeared clearly from the
clause itself, the relevant sentence of which read: "Furthermore, no
military ornaval bases shallbe established or fortifications erected in.the
te~ritory.'(Italics added.)
There were no indications, either in the mandate instruments or else-
where, that the frarners of the mandates intended to prohibit, or place any
restriction on, the establishment by a Mandatory of military bases or
other military installations inits own Territory.
lIV, p. 560
2 Ibid.An additional argument advanced in support of this reasoisdeatt with
in para.14. infra.
Para.13, infua.
' This flows from the factthst Walvis Bay is administered as ifit were pa. of
the Territory.VideIV, pp. 58-59.376 SOUTH WEST AFRICA
15. Inasmuch as there is in Respondent's submission no substance in
Applicants' contention that Walvis Bay must "in a ~nilitary sense, be
considered to be 'in' South IVeçt Africa", no purpose will, it issubmitted,
be served in dealing with Applicants' citation from a statement made by
the South African Minister of Defence in 1961 regarding inilitary activities
in Walvis Bay ',nor with tlie citation from a report of the Cornmittee on
South West Africa on the same subject '.
16. As to Applicants' conclusion that-
"[w]ithout the safeguard of adequate administrative supervision,
the presence of a large military and naval base such as Walvis Bay
entirely within the Mandated Territory . . . is in violation of Article 4
of the Mandate ... *",
Respondent cannot appreciate the relevance of administrative super-
vision, or the lack thereof, in respect of a region not forming part of the
mandated territory and never intended to be subject to supervision.
C. The AIleged"MilitaryCamp" or "MiIitary Air Base" in the Kaokoveld
17. Originally Applicants alleged the existence of a " 'military camp'
andjor 'military air base' " in the Kaokovefd3. Respondent in the
Counter-Mernorial demonstrated that the "camp" had existed for a week
only to house a srnall visiting party 4.Applicants are apparently not
persisting with tliis aspect of the charge, and are concentrating on the
"air base" aspect. This relates to an unmanncd, unfortified landing strip
at Ohopoho, in the Kaokoveld, as described in the Counter-?dernorial
In the hlemorials Applicants' contention was that the facility com-
plained of was a prohibited installation because it was "apparently not
maintained for police or internal security purposes" 6.
Respondent having in the Counter-Mernorial exposed the fallacies in
Applicants' Statement of Law relative to Article 4 of the Mandate ',and
having explained that this particular airstrip, like certain others in the
Territory, is used mainly by the South West Africa Administration for
administrative purposes, but aIço intermittcntly by nircraft of the South
African Air Force for purposes concerned with rescue operations and with
internal security and local defence, Applicants in tlie Reply adopt an
entirely cliffereiitlinofreasoning. Their case as now presented is in effect
that if the airstrips in question are rnaintained for use by military air-
craft and are available for such use, this in itself çonstitutes a contraven-
tion of Article 4 of the Mandate-even if such use may be "intermittent
and occasional", and without regard to the purpose of sucli user, namely
whether for internai police and local defence or for other purposes.
That the above is now in effect Applicants' case appearç clearly from
their new line of reasoning. Thus Applicants Say:
"Even ifRespondent's narrow definition of 'military base' is
employed, it isclear that airfields which are maintained for use by
l IV.pp. 560-561.
Ibid..p.561.
1, p. 18read with p. 182.
+ IV, p.59 (para. r3).
Ibid.. pp. 55-59.
1.p. 183.
' VidsChap. II. para.2, supra. REJOI-JDER OF SOUTH AFRICA 377
military aircraft and available for such use at any time, are places
which may be 'utilized ... for the purposes of operations or a
campaign' l."
It follows from Applicants' contention that no airstrips in the Territory
may be maintained for use by, or made available for the use of, military
aircraft, no matter what the purpose of such user rnay be.
Taken to its logical conclusion such a contention would mean that no
military training of Air Force personnel in the Territory could take place,
not even for the purposes of interna1 security or local defence-a pro-
position which, in the light of the provisions of Article 4 of the Mandate,
is destroyed by its very absurdity.
rS. In so far as Applicants make use of Respondent's dehition of the
term "military base" in seeking to establish the above proposition, they
do not render Respondent's definition properly and fully.
In construing the said term Respondent stated that-
". .. failing the fiurfiose of ufilizatiolzfor ofieraiions ... actual or
firosfiective,by a jorce orala army, a place ccannotbe said to be main-
tained as a military or naval base 2".
Applicants in applying thistest in the Reply, however, ignore the point
specifically made by Rcspondent, namely that the intended purpose
should be to utilize such facility-
"(i) as a starting point for the operations or campaign, or
(ii) asa source of supplies required for the operations or campaign,
or both 2".
To ignore this aspect leads to the absurdity that many places which are
notionally quite unrelated to the concept "military base"-e.g., roads,
railways, etc.-but which can in some sense be "utilized for the purposes
of operations or a campaign", are to be regarded as military bases.
Applicants also conveniently ignore the further point, specifically made
by Respondent , that-
". . . whereas in terms of Article 4 military training is permissible,
and would indeed fa11within Respondent's duties, it is inconceivable
that the prohibition against rnilitary baseswas intended to extend to
ordinary military training facilities*".
To say then, as Applicants do, that in terms of Respondent's orvn defini-
tion the airstrips in question are forbidden installations because they are
places which may be "utilized ... for the purposes [of operations] or a
campaign" 3,is a misstatement of Respondent's definition of the military
clause. The unmanned strips in question, without facilities for mainte-
nance, service or supplies, do not serve as startingpoimts for, or soztpcesof
sufifilies required for, operations or a campaign, and cannot therefore,in
terms of Respondent's definition, be regarded as prohibited installations.
Moreover, in applying Respondent's definition to the facts, Applicants
strain the meaning of the word "operation" when they Say that the
lIV, p. 561.
Ibid., p. 50.
This proposition isrepeated at IV, p.562 in the follorving terms:
". . there has been a clear violationofArticle 4 ofthe Mandate (even under
Respondent's narrow formulation) since such.strips are adrnittedlyutilized
inthe present for operational 'purposesand may at any time be used for the
purposes of a campaign."378 SOUTH WEST AFRICA
present use of the airstrips in question by rnilitary aircraft for limited
purposes, including, inter alia,the training of Air Force personnel with
regard to internal security and the localdefence of the Territory, amounts
to the use tliereof (by a forceoran amy) for purposes of "operations".
rg. In a footnote to this part of their argument Applicants cite the
followingpassage frorn the Counter-Mernorial:
"lt is imperative that South African Air Force pilots should from
time to time be made acquainted with the landing strips within the
Territory so as to be able to perform the responsibilities which rest
upon Respondent in respect of defence, internal security and rescue
operations in the Territory l."
Applicants' response thereto is as follo\vs:
"Applicants do not quarrel with 'internal security and rescue
operations in the Territory', but maintain that Kespoadent's mis-
conception of its duties with respect to defence of the Territory has
led into a direct violation of Article4 of the Mandate '".
Ignoring for the present Applicants' further contention relative to super-
vision of Respondent's administration of the Territory, which will be
dealt with hereinafter 2,Respondent reads this passage as meaning that
the use of the airstrips in question for certain limited military purposes-
intemal security and rescue operations-would not $er se constitute a
violation of Article 4 of the alandate, but that their use for defence of the
Territory constitutes such a violation. Respondent has already dealt with
Applicants' contention that Kespondent is not entitled nor in duty bound
to act in defence of the Territory 3,and reiterates that ithas such a rig-t
and duty.
Upon a finding that Respondent has such a right and duty, the distinc-
tion drawm by Applicants between use of the airstrips in question for,
on the one hand, internal security and rescue operations, and, on the
other hand, defence purposes, would fa11away, and in consequence
render Applicants' wholeargument baseless.
The isolated airstrips in question provide landing points for aircraft,
but do not and cannot ~erse constitute bases from which a force operates
or draws its supplies.
In any event, Respondent failsto see how any misconception of duty
on its part could make a "base" out of something which inherently and
notionally could not possibly be a "baseH-as that terrn is normally and
naturally understood in the military contest. Even tested by Applicants'
own "broad" criteria it is impossible to suggest that such airstrips are
military bases. The type of facilityis not peculiar to military activity, nor
is itslocation; it boasts no armamenb and no equipmeltt; it isunmanned;
it has no organization; and no place ija(Respondent's) administrutive
hierarchyand chaifi of command. Ttisnot surprising that there is a striking
absence ofeven an attempt on Applicants' part to justify their submission
ontheir own "broad" test '.
20. With regard to the use of the airstrips in question, Applicants
1 IV, p.562. footnote r.
2 Para. 20, awfra.
3 Vide Chap. II, paras. 10-14,upra.
IV,p. 567. REJOINDER OF SOUTH AFRICA 379
propound a furthcr argument relative to administrative supervision,
which leads them to contend that-
"[slo long as Respondent fails to recognize the administrative
supervisory authority of the United Nations, while at the same time
rnaintaining airstrips, such maintenance must be considered in-
compatible with Kespondent'ç dutieç under Article 4 if the purpose
and use of such airstrips in is [sic] any degree directed toward mili-
tary ends (as Respondent concedes) l".
This contention not only rests on a misconception dealt with elsewhere
in Respondent's pleadings =-narnely that the Unitcd Nations has
"administrative supervisory authority" in respect of South IVeçt Africa-
but is alço othenvise basically unsound. To Say that the determination
whether a particular facility does or doeç not constitute a military base,
depends upon the existence of administrative superviçion, is to introduce
into the military clause a qualification which it does not bear either in
express termç or by implication. In fact, it is significant that in their
Statement of Law-both inthe hlemorials and in the Reply-Applicants
make no mention of such a qualification. It is simply introduced at this
stage of their argument as a reason why Applicants contend that there is
a violation of Article 4 of the Mandate, apparently because they can
find no legal basis for their contention. If Respondent should be under a
duty to submit to administrative supervision on the part of somebody,
and refuses to do so, such refusa1 would constitute a violation of that
duty, but it could hardly be relevant to the different question whether a
particular installation does, or does not, conçtitute a military base as
contemplated in Article 4 of the Mandate. The question is not, as Appli-
cants appear to suggest ', whether "objection" to any military use of
airstrips would be "unreaçonable" in the absence of administrative
supervision, but whether such use constitutes a violation of a particular
provision,viz., Article1 of the Mandate.
In Respondent's submisçion this charge also is baseless.
D. MilitaryActivityin General
21. Applicants originally complained that Respondent maintained
"three 'military bases' within the Territory" 3.In the Reply they are not
content to abide by this charge. They bring an additional complaint
that a situation has been created-
". ..where there is the equivalent of a çeries of military bases or
potential military bases in the Territory, or, at worst, where the
Territory itself and its 'White' inhabitants have become armed and
coordinated to the extent that the Territory has been transformed
into a'military base' within the meaning and intent of the Covenant
and the Mandate
Respondent respectfully çubmits that it is not obliged to deal with
what is in effectan entirely new charge. However, as very little need be
said to dernonstrate that the charge is preposterous, Respondent wiIl
proceed to do so.
l IV,p. 562,
II, pp113-164 and Part II, Chap. IIIsupra.
1,p. 181.380 SOUTH WEST AFRICA
22. As regards the legal position, Applicants Iiave not advanced any
argument to show that Article 4 of the Mandate can be construed to
include a prohibition against military activitiesof the nature now intro-
duced into their cornplaint. Article 4 does not prohibit military activity
not related to military or naval bases or fortifications, or to the military
training of Natives. Neither does Article 4 prohibit any facility which,
although not a "inilitary base", canby someor other process of reasoning,
or in some seiise oanother, be regarded as :'eqnivalcnt" to a militarybase
or to a "potential" military base.
With regard to Applicants' submission that the whole Territory "has
been transformed into a 'military base' ", the notioii ofa large, thinly
populated country constituting in its entirety a "military base", is
obviously incompatible with the concept "military base".
23. As a basis for their charge Applicants rely on the following alleged
facts and factors,taken together:
(g) "... Kespondent's admitted practice of maintaining an in-
determinate number of landing strips which may be, and are,
used by military aircraft of the South African Air Force... '",
(b) ". . the increasing build-up of military strength in Walvis
Bay. ..l",
(c) ". . . the apparently ever-increasing amount of military activity
by cadet corps and 'Commando units' in the schools, commu-
nities and countryside of the Territory . . l",
{d) ". . [the]Regiment IVindhoek .. .'".
Respondent has dealt with the matters detailed under (a), (b) and (d)
above and has, in its submission, cleaily demonstrated that the airstrips
in question, the military facility at Walvis Bay (which is not situated in
South IVest Africa) and the facilities of the Regiment ivindhoek, can by
no stretch of imagination be considered, singly or collcctively, as "mili-
tary bases" in the Territory in terms of the Covena~it and Article4 of the
Mandate. There remain the factual allegations quoted in (cl above,
with regard to which Respondent states as follows:
The cadet detachments established at certain schools for European
children in theTerritory receive elementary training in drilling andtarget
practice with small calibre rifles.Each cadet sperids approximately 45
minutes per week in such activities. One rifle is issued to a school for
every 30 cadets.
iith regard to the Commando units, membership is voluntary. Mem-
bers are civilians, who can be called upon when necessary to guard
vulnerable poirits and to assist the civil authorities to maiiltain law and
order: in other words, the purposes arc again strictly confined to interna1
police and Iocaldefence. Each member is issued with a rifle, and each unit
isissued with three light machine guns and three sub-machine carbines
for target practice purposes.
By no process of reasoning can the above organizations be regarded as
"military bases" in terms of Article 4.
24. With regard to Applicantsl reference to "three recent resolutions of
the General Assembly" which impute bad faith and violations of the
IV, p. 563. RE JOISDER OF SOUTH AFRICA gSr
military clause to Respondent , Respondent points out that such resolu-
tions were seriously at fault in thiç respect.
Two of the resolutions referred to by Applicants preceded the visit
to the Territory by M. Carpio and Dr. Martinez de Alva, respectively
Chairman and Vice-Chairman of the Special Committee for South West
Africa, during 1962 . he events which followed upon the said visit have
been dealt with elsewhere 2,and it isçufficjent for present purposes to
note that the findings of hl. Carpio and Dr. de Alva completely refuted the
allegations of expansion of military forces and activity in the Territory,
as incorporated in the said two resoIutions. hrevertheless the third of the
reçolutions 3, adopted shortly after the said visit, once more irnplied
charges which in the light of the tme facts, as set out in the Counter-
Rlemorial and herein. werewholly unfounded.
25. In the prernises it is hardly necesçary for Respondent to Say that
itdenies Applicantç' chargethat-
". ..there is the equivalent of a series of military bases or potential
military bases in the Territory, or ... [that] the Territory has been
transformed into a 'military base' within the meaning and intent
of the Covenant and the Mandate 4".
' G.A. Resolutions 1702 (SVl) and 1703 (XVI), ~g Dec.ip61in C.A.. O.R..
SixlVideIV,epp.,60-61and Part7(1 ofthe Rejoinder.referretdoinIV, p563.
G.A. Resolulion 1805 (XVII), 14 Dec. 1962 in G.A., O.R., Seventeenthess..
Suppl. No. 17 (Al5217)p,li. ,38-39.
IV,p.564. CHAPTER IV
RESPONDENT'S ANSWERTOANNEX gOF THE REPLY-
SUPPLEMENTARY MATERIAL WITH RESPECT TO ALLEGED
VIOLATIONS OP ARTICLE 4 OFTHEMANDATE
A. General
r. The supplementary material contained in Annex g to the Keply is
divided into eight numbered paragraphs, which are concerned in part
with Respondent's Statement of the Law relative to Article 4 of the
Mandate l,and in part with the facts as dealt with bp Kespondent 2.
&luchof the material in the said Annex has, in some respects toa larger
and in others to a lesser extent, been dealt with in the preceding chapt3,s
and it will not be necessary to repeat what has been stated there. In
its treatment of the Annex in this chapter Respondent will therefore in
many instances merely rcfer to what has already been stated in the
preceding chapters.
2. The subject-matter of the Annex is hereinafter dealt with by refer-
ence to the paragraph riumbers assigned thereto by Applicants.
B. Paragraph (1)of the Annex '
3. In this paragraph Applicants deny Respondent's contentian that a
"alandatory was.. . entitled to train the inhabitants of a mandated
territory (including the Natives) for the defence of that Mandated Terri-
tory" s,and take the stand that-
". . . the restrictonmilitaa rnydnaval basesand jortificationswozsld
logicallyplace a cleur limitatiola on the preseitof troops other than
natiu- +". (Italic; added.)
Respondent has already dealt fully with this issue6, and will here
merely concern itself with the further arguments advanced by Applicants
relative to the discussion in the Council of Ten concerning the military
clause 7.
4. In the first place, Applicants Saythat the discussion "related only to
(a) the military training of the nativesfor police and defence; and (b)
raising nativeamies in the event of a general war", and they aver that
the interchange between Messrs. Clemenceau, Lloyd George and Wilson
"was concerned with the raising and training of native troops; the
presence, raising, or training of troops other than native was neither
anticipated, suggested, nor discussed" 4.
* Ibid.pp,754-62.
Vie explanation in Chap. 1, pa4. supra.
' IV, p.$65.
IM., p. 50.
Chap. II, paras15-21.supra.
Vade IV,pp. 48-50 for statements made in the course of the discussion. REJOINDER OF SOUTH AFRICA 3$3
Save in one respect this statement of fact appears to be correct. The
respect in which it is incorrect,s the allegation that "the presence, raising,
or training of troops other than native was [not] anticipated". Admit-
tedly that question was neither raised nor discussed, but there is nothing
on record to show that it was not "anticipated".
The position which Respondent takes with regard to the discussions in
question isthat the Council of Ten showed concern only aboutthe training
of Natives, and not also of non-Natives, hence tiieir 1-esolutionto prohibit
the training of Natives alone, and even then to a qualified extent only.
If there had been an intention to prohibit the training of non-Natives,
or, as Applicants suggest, even the presence of non-Native troops in the
mandated territories, the military clauses with regard to B and C Man-
dated territories would surely have been differently worded.
5. Applicant's second point isthat the discussion in the Council of
Ten "was, at best . . . opaque" and they cite the following evtract frorn
Baker, Woodrow Wilson and World Setllemenf: "It was not surprising
that, as a result of this colloquy, the secretariat should have been puzzled
as to what wasreally meant "l. It is true that Baker refers to arnbiguity
and uncertainty arising from the discussions in the Council of Ten. Such
confusion as there waç, however, centred entirely around the demands
of the French delegation which "wanted definite assurances of their right
to raise and train Negro troops to use in Europe or elsewhereif neces-
sary" 2.There was no confusion at al1about the right of a Mandatory to
train the inhabitants of a mandated territory (including the Natives) for
the defence of thatmandated fevwifory.
C. Paragraph (2) of the Annex
6. Applicantscitewithout comment passages from the works of Quincy
Wright and Duncan Hall 4; Respoiident cannot understand whatexactly
Applicants wish to establish by these citations. The passages in question
certainly do not support Applicants' contention irnmediately preceding
the quotations 5,viz., that "the restriction on rnilitary andnaval bases and
fortifications would IogicaHy place a clear limitation on the presence of
troops other than native". ??or do they support the contention advanced
elsewhere 6,viz., that Respondent has no right to defend the Territory in
the event of it being attacked. Neither of theçecontentionswas, inciden-
talIy, as far as Respondent is aware, ever advancedby any cornmentator,
State or person, up to the time of the filing of the Reply by Applicants.
Respondent can therefore only paçs the following general comment
regarding the said quotations. Roth the Covenant and the mandate
instruments differed materially in respect of the military clauses as be-
tween A Mandates, on the one hand, and B and C Mandates, on the
other '.How the quotations here under discussion, both of which concern
l IV. p. 565.
* Baker, R. S.,Woadrow Wilson and World Setilevnent (19231, Vol.1, p. 429.
ltalicsadded.
Wright. Q., Alandateseotdevthe Leagueof Notions (1930).
' IV,lp. 565 (paraa1).es, Depeiadencicsand Trusteesh(1g48).
' Vide Art.22~(4) of the Covenant of the LeagueoNations;Art. 2of the Mandate
for Syna and the Lebanon-and Art.17 of the Mandate for Palestine.384 SOUTH WEST AFRICA
A Mandates, can be relevant to AppIicants' contentions, is not apparent.
The only valid inference which can be drawn froiii the military provisions
in the A Mandate instruments, is that Applicants are quite wrong in de-
nying that Mandatories had the right and duty to defend the territories
entnisted to their care. Applicants' statement tliat a right and duty of a
Mandatory to defend a mandated territory is-
". ..wholly out of keeping with the nature and substance of the Man-
date institution, and ignores the basic relationship between the Man-
datory and thc League of Nations l",
is directly controverted by the express proviçioiis on that subject in the
A Mandates. So, e.g., the Mandate for Syria and the Lebanon provided.
intevalia, that: "The Mandatory may maintain its troops in the said terri-
tory for jts defence 2."
7. Applicants in the paragraph under consideration also say that-
". . . if there were, argtlendoaduty and right to defend the Territory
... [çluch 'duty and right' .. .had, then, to be perforrned, and exer-
cised, wifhoutestablishing military or naval bases and withoul erect-
ing fortifications; the language of the mititary clauses is too clear to
permit of any other construction 3''.
~his statement Respondent adrnits to be correct as faras it goes; but
by the same logic itseems evident that certain activities directed towards
the defence of the Territory-e.g., training of inliabitants for that pur-
pose, and provision of means of communication and reconnaissance-
must have been contemplated as legitrmate and exreridesirable. Conse-
quently the authors of the clause could not have considered or intended
that the prohibition against the establishment of bases and fortifications
would extend to such activities per se.
D. Paragraph(3) of the Annex '
8. Applicants in their reasoning in this paragraph proceed from the
basic prcmise that there iç of necessity an "incompatibility of the two
propositions containcd in the '13a'nd 'Ci Mandates" ', which have to be
reconciled by constmctio~i if possible. Applicants, however, adduce noth-
ing in support of the suggested incompatibility. They do not refer to aily
discussion of such alleged incompatibility during the Peace Conference,
nor to a single reference thereto during the Leaguo of Nations period, nor
to appreciatian thereof on the part of even a single commentator on the
mandatacsystem. In Kesponclent's subrnission there is no such incompati-
bility. The plain and ordinary meaning of the term "military base" in no
way iiicludes a facility the sole purpose of which is directed townrds
military training. There was consequently no reason why the authors of
the mandates should have regarded such a faciiity as being even prima
facie incompatible with a prohibition against bases. And this 1s the
straightfonvard explanation whp they did not insert into the prohibition
any wvordsof quaiification with reference to contemplated militarj, train-
IV, p.554.
Art. 2 of theMandate for Syria and theLebanon.
'Ibid. The tno propositionsbeing: (i) bases and fortifications are forbidden and
(ii) rnilitary trainofgthe Satives for certain specific purpoispermitted. RE JOISDER OF SOUTH AFRICA 385
ing of inhabitants. There is no need for an artificial construction that a
facility for the training of Natives for police and iocal defence isnot to be
"considered" a base l:the authors of the mandates quite clearlqyin fact
did not regard any training facility as being er se a base.
-tIoreover, the practice of Mandatories eturing the League period,
without any objcctioiis from the Permanent Mandates Commission ',
affordç confirmation that the premise of "incompatibility", on which
Applicants base their reaçoning, is incorrect.
hlilitary training of Sati1.e~ was prohibited except' for limited purposeç,
and the training of perçons other than Natives was not prohibited and
thereforepermitted. This situation is in no way affected by the prohibition
against "military or naval bases" 3.
g. With regard to Applicants' çubrnission that-
"[tlhe very concept of 'military' or 'naval' bases suggeçts. in context,
the familiar patterns of European troops and ships, based in the
Nandated Territory lor training, development, or operations 4",
Respondent says :
(a) that no legal bnsis is advariced for this çubmission ;
(b) that it is not clear wlint the expression "familiar patterns of Euro-
pean troops and ships" Inenns $;
(c) that institutions for "traiiiing" and for "operations" need not be
combined, ancl frequently have a separate existence, with the reçuIt
that whereas thc latter coulcl bc bases, the former need not be; and
(d) that, in any evcnt, Applicants' proposition would ineffect mean that
a particular faciIity manned by Natives would immediately become
a prohibited installation ifnon-Natives were included in the person-
nel-a situation which stireiy could not have been intended.
IO. Ap-.icants' further argument that their-
". . . interpretation is rcinforced by the juxtaposition, in the 'B'
mandates, of tlic language permittin 'native militayy forces'
\\rith the langunge prohibititig bases ,
does not in any \\;ay Tend siipportto thcir contention that the training of
non-Xative inhabitants was not permitted. In view of the general prohi-
bition against the training of Natives, every exception thereto required
to be expressly stated; but as thcre was no such prohibition as regards
non-Natives, there was no need or occasion for stnting any exceptions in
their case.
II. Applicants finally argiic tlint the word "establish" in Article 4-
". .. suggests, in tlic çoiitext of the times, (a) an outside agency or
a force eiitcring thc Msndnted Territory from outside and becoming
established; and (b) n condition permanent in nature and rcIated,
in scope, to objectives otlicr tlian the objectives permissible for the
Vide Applicants' cc>ristriictionNo(iii;~IV, p. 566. . -- A--
Vide Chap. JI, paras.12-14, supra.
Vide Chap. II, paras. 13-15, supru.
IV, 1)566
Applicants can hnrdly silggest that the trainingnow-Native i?zhabitantof any
territory relevant totheenquiry was in accordance with a "familiar pattern";and
if this inot Applicants' ~neaning. their suggestion is.irrelevant as to the point in
issue.viz..whether the training of non-Xative inhabitants of the Territory involves
the maintenance of a "militnry base".
IV, pp. 566-567386 SOUTH WEST AFRICA
military training of the natives under the 'C' Mandates or the main-
tenance of native rnilitary forces under the 'B' hlandateç '".
Respondent submits that, on analysis of this proposition, Applicants
would define a military base as-
(i) afacility of an extraneous force or agency, which
(ii) kas entered the territory from outside, and which
(iii) has become perrnanently established therein, and which
{iv) is concerned ivith objectives other than the permissible objectives
of military training of the Natives.
No legal grounds are adduced by Applicants for this proposition, and
Respondent submits that it is without foundation or substance. Re-
spondent does not understand ivhat Applicants mean by the word "agen-
cy", but rciterates that there can be no questioon f a "miiitary base"
unless a military force or an army utilizes a place for the projection or
support of its operations, actual or prospcctivc, or unless the said place
is intended for such utilization *.With regard to the "permissible objec-
tives" mentioned by Applicants, Respondent reiterates that such objec-
tives would include not only the training of Natives, but also the training
of non-Natives.
E. Paragraph(4) of the Annex 1
12. Irithis paragraph Applicants say-
"Respondent'ç contention that '.. . the sole criterion applied to
each facility (bu Applicants) appears to be the fact . . . that its pur-
pose is not police protection or interna) secririty' is wholly incor-
rect '." (Footnote ommitted.)
This comment by Respondent on the position taken by Applicants in
the Illemorials is, however, valid and cannot be assailed. In this regard
Respondent refers to its analysis in Chapter III above of the reasons
advanced by Applicants in the Memorials for concluding that each of the
three faciiiticsmentioned by them'was a military base 3.It is clear frorn
what is there stated that there was no "confusior, on the part of Respond-
ent" ', as Applicants now suggest, when it passed what was, and still
remains, a valid comment on the stand taken by Applicants in the Me-
morials. Respondent has already demonstrated 4, and reaffirms, that
Applicants in their Reply now adopt an entirely new approach.
Applicants also say that-
". ..Respondent cannot deny that a generally reasonable criterion
for determining whether installations are military bases is, in fact,
whether they are intended solely for 'police protection or internal
security''".
IV, p. 567.
Vide Chap. III, para1,1su+a,rregarding the Regiment Windhoek. Vide Chap.
III, paraI 1supra [footnote11regarding the military landing ground in the Walvis
Bay [Swakopmund] area. Vide Chap.III, para. 17, supra. regarding the military
camp or air base in the Kaokoveld.
' Vide Chap. 1, para.2; Chap. II, paras. 1-3; Chap. III. paras. 111.and 17,
supra. REJOINDER OF SOUTH AFRICA 387
Respondent can, however, deny this. Although the so-called "criterion"
could possibly by itself lead to the negative conclusion that a particular
facility is nota military base, it is hard to see how it could ever by itself
lead to an opposite, positive conclusion. Inany event, however, Applicants
now in fact entirely ignore this criterion iti the position taken in their
Keply, where they merely "reiterate and repeat the far broader criteria
of [the] last sentence in their 'Statement of Law' " l.
F. Paragraph(5) of the Annex
13. Respondent has already dealt with the definitions quoted by Ap-
plicants in this paragraph ', and respectfully refers the Court to what was
there stated. With regard to the statcment by Paul H. Clyde, quoted by
Applicants from the book Japan's PuciticMandate, Respondent says
that it is of no assistance at al1iii the yrcsent enquiry, namely as to the
meaning of the term "military base". It merely illustrates the dificulties
which may in particular cases be encountered in deciding whether a par-
ticuiar facility is or is not a "military base".
G. Paragraph(6) of the Annex '
14. The extracts cited by Applicants from The Windhoek Adwertiser
take their argument nofurther.With regard to the first estract 5,Respond-
ent has already confirmed that the Regiment Windhoek is a part of the
South Afrjcan Armoured Corps of the Citizen Force, which forms an
integral part of the South African Uefence Forces6.The term "South
West Airica Command" is generally used to designate the Command
Headquarters referred to above ', cornprising the permanent administra-
tive personnel stxtioned at Windhoek which consists of three officers and
seven other ranks Its functions, as has been seen 9,are to exercise com-
mand over the administrative work and tlie training operations in con-
nection with the Regiment Windhoek, the school Cadet Corps, and the
Commando units. The Regiment Windhoek is not, as Applicants suggest,
"referred to as the 'South West Africa Command' " 5.The further con-
fusion professed by Applicants regarding the Regiment Windhoek has
already been clarified ".
15. The second estract quoted by Applicants from The Windhoek
Advertiser referred to a proposa1 to form a Commando unit atOranjemund.
The membership, armament and functions of Commando units have al-
ready been explained 12.The proposed Commando unit at Oranjemund in
fact never came into being.
l IV, p. 567,and videalsoChap. 11, paras.3 and 4,supra.
2 Ibid., pp567-568.
3 Chap. II, para.20,supra.
4 IV, pp.568-569.
5 Ibid., p568.
Ibid.,p.56.
Vide ibid.p. 56 andChap. III .ara. 8. supra.
Vide Chap. III. para.8 (e). strpra.
Vide Chap. III, paras. 8(e)and23, supra.
Io IV,p. 569.
'1 Chap. III. para. 8, supua.
k2 Chap. III. para.23,supra. 35S SOUTH WEST .+FRICA
H. Paragraph(7) of the Annex '
16. With regard to the quotations in this paragraph of the 'lnnex Re-
spondent states as follows:
Sttb-fiaragra$h (a)
The "territorial sea area" mentioned in this quotation falls within the
territorial waters of the Port and Settlement of Walvis Bay, and is there-
fore not part of the Territory of South liTestAfrica *.This quotation ac-
cordingly warrants no Iurther cornmcnt.
Strb-finragru$A (b)
The areadealt with in this qiiotation, as appears froin its text, is within
the boundaries of the Port aiid Settlement of Walvis Bay aiid therefore
outside the Territory of South West Africa 2.Also with regard to this
quotation Respondent refrains from comment, Save to state that thisis
another example of untrustwort~iy information conveyed to the United
, Nations by petitioners. The quotation has been taken by Applicarits from
a petition to the United Nations by SIVANU and SWAPO 3.The laçt
sentence of the quotation, vk., "[rnlany more arein otlier Camps" is ficti-
tious, and did not appear in the newspaper report of which it purports to
be a part.
Sub-parngraph(c)
The Hercules aircraft, referred to in this sub-paragrapli, was on a flight
from Pretoria to Walvis Ray on rApril ~963.The aircraft landcd at IVind-
hock to allow two officers. wiio were on an inspection visit to the South
West Africa Command to disembark. There were no trainees on the air-
craft, svhich carried a total of only 14 passengers, of whorn four were
civilians.
1. Paragraph(8) of the Annex
17. Respondent has already dealt with the attitude adopted by Appli-
cants relative to the Joint Staternent of 26 Alay rgGz, to which the
Chairnlan (Ri . arpio) and the Vice-Chairman (Dr. Martinez de Alva)
of the Special Committee for South West Africa were parties 'jThe only
point sought to be made by Applicants in this paragraph is tliat, accord-
ing to a letter written by the Chairman of the said Comrnittee. the Com-
mittee " [did] not consider or recognize such communique as anything
officia1or of any binding effect whatever "-the reason ndvanced for
sucli attitude being-
". .. that the alleged comrnunic~ui:was not an ofîtcial act of [the]
Cornmitteenor of the Chairmaii tl-iereof,nor has anyone been autho-
rized cither by this Special Committee or the Genernl Assembly to
enter or join in such a communique 5".
With regard to this argument Respondent states that the question
IV,p. 570.
2 Vide ibid., 57.
J Vide ibid.p. 570,footnotesI and 2.
' Vide para.14, supra.
IV,PP.370-371.
Vide Part 1ofthe Rejoinder and alsoChap. ITI,para. 2.hstrpra. REJOIXDER OF SOUTH XFRICA 389
whether the said communique was recognized as "official" or "binding"
on the United Nations organs or not, cannot affect the undoubtedly
strwg probative value of the conclusions subscribed to by M. Carpio and
Dr. de Alva. Such conclusions represented a clear admission on their part
that the resolutions concerning militarization in the Territory, which the
General Assembly had passed prior to their visit, with the support of their
countries, the Philippiries and Mexico l, werz seriouslyfat fault.
l G.A .Resolutions 1702 (XVI) and 1703(XVI). 19 Dec. 1961 inG.A .,O.R., Sixteenth
Sess..Suppi. Ko. 17(A/g~oo). pp. 39-41; G.A., O.R, Sixteenth Sess.,108jrdPlenary
Meeting, ig Dec. 1961, p. 1106; G.A.. O.K., Sixteenth Sess.,Fourth Gomrn., ,247th
Meeting, 13 Dec. 1961,p. 588 and 1248th Meeting, rg Dec. rg6i. p.,591. CHAPTER V
CONCLUSION
I. In the Light of what lias been stated in the Counter-Memorial l,
and in the foregohg chapters of this Rejoinder, Reçpondent denies each
and every one of Applicants' charges as originally advanced in the
Memorials 2,and as amplified in the Reply 3,relative to the establishment
or maintenance in South West Africa of alleged military bases.
2. In the premises Respondent denies that it has violated Article 4
of the Mandate and Article 22 of the Covenant of the Leagueof Nations,
in the respect aforestated or at all.
1IV, pp.47-65.
2 1, pp. 181-183.
'IV, PP.553-57'. PART V
Allegcd Violations by Respondent of Article 2(1) of
the Mandate and Article 22 ofthe Covenarit
CHAPTEK 1
INTRODUCTION
I.Applicants' charges, as formulated in ChapterVI11 of the Memorials,
concerned alleged violations by Respondent of the following duties
imposed by Article 22 of the Covenant and Article 2 (1)of the Mandate:
(a) the duty to "refrain from unilateral annexation" l,
and
(b) the duty "to advance the political maturity of the Territory's
inhabitants so that they may ultimately exercise self-determina-
tion" l.
Appiicants' charges were based on certain statements, set forth in
section 13I of Chapter VI11 of the 3iemorials *, and on certain acts of
Respondent, recountedin section B 2of the said chapter of the Memorial'.
2. Respondent, before dealing with Applicants' charges in the Counter-
hlemorial, made the following specific statement:
"Although Respondent contcnds that the Mandate has lapsed, a
contention which, if upheld,willobviate an enquiry into the charges
made by Applicants in Chapter VlII of their nlemorials, Kespondent
nevertheless will in this anthe following Chapters deal with Appli-
cants' charges on the assztm$tio nor purfiose sf argument, that
theMandate is stilinforce 4."(Italics added.)
On the basis of the said assumption, Respondent first dealt with
Applicants' Statement of Law relative to the international status of
South IVlrestAfrica and to the duty to advance the political maturity
of the Territory's inhabitants5.
Having stated its contentions regarding the legal position, Respondent
devoted a chapter to the historical background relative to the status of
South West Africa and to Respondent's attitude thereanent, bot11during
the lifetime of the League of Nations and thereafter 6,and then dealt
fully with the statements and acts relied upon by Applicants 7.
In the lightof this treatment of the subject, Respondent denied al1
the charges of violation of Article 2 (1)of the Mandate and Article 22
of the Covenant
1,p.185;videAnalysis of Appticants' Staterneof Law as setforth inIV,
pp. 67-68.
1,pp.186-I89.
Ibid., pp. 189-165.
IV,p.68.
' Ibid., p68-85.
Ibid., pp. 76-85.
Ibid.pp.86-131.
Ibid.p.132. 392 SOUTH WEST AFRICA
3,. In the Xeply Applicants do not deal specifically either with Respond-
ent s Statement of the Law relative to its duties under Article 2 (1)
of the Mandate and Article 22. of the Covenant, or with the facts set
forth by Respondent relevant to the charges in question.
Instead of doing so, they merely propound further "Argument" for
persisting in their charges.
4. The aforestated "Argument" is introduced with the following
paragraph :
"Thc facts alleged by Applicants in Chapter VI11 of the Memorials
are not disputed by Respondent; only their legal significance has
been placed in issue '."
Respondent iç not in agreement with this statement. Fundarneiital to
Applicants' chargesin the Memorialswere tlie followingallegations of fact :
(a) that Kespondent in fact haç a plan to incorporate the 'Territory 3;
(b) that the acts, recounted in section B 2 of ChapterVIIl of thchlemor-
ials were in fact perpetrated by Respondent in the effectuation of
the aforementioned plan to incorporate 3; and
(c) that there is an "awareness" on the part of Respondent "that its
actioiisin this respect exceed the permissible bounds of the Mandate,
if the Alandatc is still effective"4.
hll the above allegations of fact were specifically deniedby Respondent
in the Counter-Mernorial. Furthermore, the "facts alleged by Applicants"
which, accordiiig to them, "are not disyuted by Respondent", must,
for a proper appreciation of their legal significance, be viewed in the
\ light of the further relevant facts recounted by Respondent in the
Counter-hlemorial 5,which facts are not disputed by Applicants.
5. In their "Argument" in the Reply, Applicants find itconvenient to
"discuss wespondent's] acts and the intent ... within the context and
framework of [three] legal conclusions" 2. These so-called "legal con-
clusions", and Applicants' discussion under each, will be deaft with
separately in the following chapters. Hefore, however, proceeding to do
so, Respondent draws attention to the fact that alço in this part of
Applicants' case there appears to be a major shift from the position
taken by thern in the Memorials.
Whereas the case made in the Mernorials appeared, on analysis, to be
a charge of improper motive, purpose or intent on the part of Kespondent,
viz., a plan to incorporate the Territory unilaterally ',Applicants have
now introduced an alternative contention to the efiect that-
"Respoiident's policies and acts . . . constitute fier se, and without
regard to Respondent's purpose or motive, a violation of Kespond-
ent's obligation to respect the separate international legal status
of the Territory =."
This aspect will be further illustrated and dealt with hereinafter 7.
l Videheading ta Chap. VI1 U 2at IV,p. 573.
=IV, p.573.
1,pp. i89,193, 194and 19.5.
Ibid.1). 187.
IV,pp. 86-181.
Vide IV.p. 84for analysis ofApplicants' case
Vide Chap. II1,para.1, infra. CHAPTER II
RESPONDENT'SALLEGED"PURPOSEORMOTIVETO
INCORPORATE ORANNEXTHETERRITORY"
1. The first "legal conclusion" advanced by Applicants as part of
their "Argiiment" aforestated is formulated as follows:
"Insofar as Respondent's purpose or motive to incorporate or
annex the Territory is relevant to a determination of Respondent's
violation of its obligations as stated in Article 22 of the Covenant
of the League of Nations and Article 2,paragraph 1, of the Mandate,
as Respondent contends, such purfiose or motive clearly emerges
/rom the record kereirt*." (Italics added.)
Before dealing witk Applicants' discussion relative to this conclusion,
Respondent must indicate that the conclusion itself may create a wrong
impression of Respondent's contention concerning the importance of
"purpose or motive" in the preçent context. Respondent did not contend
that "purpose or nlotive" is merely "relevant" to a determination
whether tlierekas been a violation of its dutiesin question. Respondent's
contention, stated in unequivocal temç in the Counter-Mernorial, was
that "purpose and motive"-
". .. would be the very criterion, and tlie only criterion, for deter-
mining whether a particular action is in violation of Respondent's
obligations under the Mandate. . .3",
in the respects under consideration.
2. In their discussion of the conclusion that "Respondent's purpose or
motive to incorporate or annex the Territory ... clearly appears from
the record herein", Applicants Say: "in decisive respects, indeed, such a
purpose is conceded in Respondent's own avowals" 4.
The avowals which Applicants regard as conceding a purpose to in-
corporate or annex the Territory are said to be embodied in the following
extracts from the Counter-Mernorial:
(a) ". .. the Mandate for South West Africa gave effect to a corn-
promise arrangement which involved, inter alia,that C Man-
dates were, in their pya~tical egecl, not fur removed frorn
annexation 5" (italics added) ,
and
(bJ "[tjhe day to day exercise of attributes of sovereignty thus
veçt in Respondent, and the powers of Respondent in the
fields of administration and legislation are firacticallyas wide
as that of a sovereign power in regard to its own territory 6".
It is, however, clear that, on the plain meaning of the words employed,
l Vide Chap. 1,paras. 3 and 5,supra.
IV,p. 573.
Ibid.,p. 84 (para23).Vide alsop.69 (para. IO).
+ II,p.95. Vide alsoIV,op.574..
IV,p. 69. Vide alsoIV, p. 574. SOUTH WEST AFRICA
394
neither of these statements evidences any purpose or motive to incor-
porate or annex the Territory.
The first statement concerns merely the practical effect of the Man-
date, i.e.,with reference to the government and administration of the
mandated territory, as distinct from its legal status; and the use of
the words "in their practicaI effect" and "not far rernoved frorn" speci-
fically dispels any suggestion of a claim that the position created was
equivalent to annexation. In this regard Respondent refers to what has
been stated in Part II of this Rejoinder relative to the practical effect
of C Mandates l.
3. Likewise, the second staternent concerns tlie de facto government of
the Territory, as distinct from its status in international law. Indeed, in
the very passage from wlich Applicants have extracted this statement,
Respondent drew the following distinction:
"As far as the stalus of the Territory is concerned, Respondent
must respect the requirernent that it is to bea separate internationa1
status. On the otherhand, as far as the de factogovernment of the
Territory is concerned, Respondent is authorized to perforrn al1
acts covering al1 facets of government, administration and legis-
lation '." (Italics added.)
It is clear from the context that it was with regard to this last-men-
tioned aspect, the defacto government of the Territory, that Respondent
made the statement quoted in paragraph 2 (b) above.
By the statement "[tlhe day tu day exercise of the attributes of
sovereignty thus vest in Respondent", nothing more was meant to be
conveyed than by the statement of M. Hymans in his report to the
League Council in 1920, which was adopted by the latter, to the effect
that Mandatories would enjoy "a full exercise of sovereignty" ',or by
the statement of the Chairman of the Permanent Mandates Commission
that the Mandatory "exercises sovereign powers" '.
By the use of the word "p~actically" (purposely italicized in the text)
Respondent dispelled any suggestion of a claim to sovereignty in the
ordinary sense of the word. In fact, Respondent immediately proceeded
to elaborate on the word "practically" in the context by mentioning the
"limitations which fetter or condition the interna1 exercise of the powers
of government and legislation" 5,namely the specific prohibitions con-
tained in the Mandate and the duty to "prornote to the utmost the
material and moral wcll-being and the social progress of the inhabitants
of the territory.. ." *.
Consequently Respondent explicitly recognized that the Mandate
created a "separate internationalstatus" for the Territoryand that there
were limitations upon Respondent's powers of government and legislation
under the Mandate.
4. By a circuitous process of reasoning Applicants, however, seek
support for their contention that the purpose or motive to incorporate
1 Vide Part11,Chap. II. paras.4-10,supra.
IV,p. 69.
L.of N.,O.]. 1920(NO. 6),p. 337.(Italics sdded.)
'P.AI.C., Min., X, p.22.(Italics added.)
'IV, p.69 (pars. 8). REJOINDER OF SOUTH AFRICA 395
or annex the Territory is "conceded in Respondent's [said] avowals".
Applicantç first cite from Black's Law Diciionary a part of one of the
definitions given for the word "sovereignty".
The part cited by Applicants is that italicized in the following extract
from the said dictionary:
"Sovereignty. The supreme, absolute, and uncontrollable power
by which any independent state is governed; supreme political
authoritp; paramount control of the constitution and frame of
govemment and its administration; the self-sufficient source of
political power, from which al1specific political powers are denved;
the international independence of a state, combined with the right
and power of regulating its interna1 affairs without foreign dictation;
also a political Society, or state, whicissovereign and independent I.
The power to do everything in a state withozrt acconntabi1ity.-to
make laws, to execute and to apply them, to impose and collect
taxes and levy contributions, to make war or peace, to form treaties
of alliance or of commerce with foreign nations, and the like. Story,
Const. para. 207 2." (Italics added.)
According to the above definitions the essence of sovereignty is
wlinaited and ztnfelieredfiozverClearly, then, Kespondcnt's admission
that there are "limitations which fetter or condition" its power in the
Territory is irreconcilable with a claim to sovereignty in the ordinary
sense of the word.
5. Applicants point to Respondent's statement that its powers in
the Territory are limited by (i) the specific prohibitions contained in the
Mandate, and {ii)the duty to "promote to the utmost the material and
moral well-being and the social progress of the inhabitants of the Terri-
tory" and Say:
"Taken at face value, this statement appears to concede that the
Mandate is still in existence, and that Respondent recognizes its
duties of international accountability and the reviewability of its
performance of the Mandate obligations. In fact, Respondent has
devoted a substantial portion of its Counter-Mernorial to an at-
tempted demonstration that the Mandate 'lapsed in fotoupon
dissalution of the League of Nations'. This is, as has been shown,
the premise upon which Respondent fias in fact conducted itself
with regard to the Territory and its inhabitants, at least since
Novernber 1948, when Respondent referred to 'the prmious Mad~te,
silaceexfiired'=."(Italics in original and footnote omitted.)
Respondent answers the above statement as follows:
(a) In the first place, there is no need for surmise on the part of Appli-
cants as to whether Respondent, in referring to the above-mentioned
limitations on its powers in respect of South West Africa, concedes
that the Mandate is in existence. As has been indicated above 6,
References todecided cases notrecited.
Black. H. C., Black's Law Dictionary, 4th e(1g51)p. 1568.
On the basis here under discusçion, Le., that the Mandate exists-Chap. 1,
para.2, supra.
IV, p.69 (para.8).
Iùid.. p574.
Vide Chap. 1, para.2,supra.3g6 SOUTH WEST AFRlC-4
Respondent stated specifically and clearly in its Countet-Mernorial
thnt it would deal with Applicants' charges in Chapter VI11 of the
Iblemorials "on the assumption, for purposes of argument, that the
Mandate is still in force"; and the reference to legal limitations on
its powers in respect of South West Africa was c1early made on the
basis of that assumption.
(b) hpplicants' further statement that, in referring to the spid limita-
tions, Kespondent apparently "recognizes its duties of international
accountability and the reviewability of ils performance of the Man-
date obligations", is without substance. Respondent's case, stated
clearly and specifically, is tliatwhether orlzot the Mandate isslill
in fovce, Respondent's former obligations to report and account
to, and to submit to the supervision of, the Council of the League
of Nations, lapsed upon the dissoIution of the League, and have
not been replaced by any similar obligations relative to super-
vision by any organ of the United Natioiis or any otlier organization
or body l.
In stating, on the assumption that the Mandate isstill in existence,
that there arethe aforementionedlimitations on itspowers, Respond-
ent did not recognize, and cannot be read as recognizing, "duties
of international accountability and the reviewability of its perform-
ance of the Mandate obligations".
(c) lt is true that since, ancby reason of, the dissolution of the League
of Natioiis, Respondent hns consistently taken up the attitude that
the Mandate had lapscd in loto.
1t is, however, not clear to 1Zespondent what precisely Applicants
iiitend to convey when they add that Respondent's contention
that the Mandate has lapsed "is .. .the prernise upon which Respond-
ent has in fact conducted itself with regard to the Territory and
its inhabitants, at Ieast since November 1948" =.
Wliilst Respondent has aclopted the attitude that the Mandate
lapsed iipon dissolution of the League, it has nlso consistently
statedand given the assurance that it would continue to administer
the Tcrritory in the spirit of the Mandate-Le., as if al1the obliga-
tions comprised in the sacred trust were still in existence-and
Respondent has in fact so continued to adrninister the Territory.
In this regard Respondent refers to the facts stated and con-
clusions drawn in Chapters II and III of section C of Book VI11
of its Counter-Jlernorial 3, which are not specifically dealt with by
Applicants in their Keply, and in particular, inter dia, to the
following explicit statement :
"Respondent's policy to administer the Territory 'in the
spirit of the Xandate' incliides a voluntary abstention from
uiiilateral incorporation, exactly as if the Mandate were still
in legal operation in that regard 4."
6. With regard to Respondent's contention that since, and by reason
of, the dissolution of the League, the obligations to report and account
to, and to submit to the supervision of, the Council of the League of
Vide II, ~ip.and 213and Part IT,Chap. IIIpara. 1,supra.
= Ibid.,pp. 86-92.
+Ibid., p.87. REJOINDER OF SOUTH AFRICA
397
Nations have lapsed and have not been replacecl by any similar obliga-
tions, Applicants Say: "This proposition. .. is one which has guided
Respondent in its conduct toward the Territory and its inhabitants, at
least since November 1948 l."
Again it is not clear what Applicants intend to convey. If they rnean
that Respondent has refused to recognize the United Nations as having
supervisory authority in respect of Respondent's administration of South
West Africa, and lias refused to submit petitions and reports to the
United Nations, then their statement is correct. If, however, they mean
that Respondent has in other respects changed its motives or conduct
towards the Territory and its inhabitants, then Respondent denies that
charge. As has been demonstrated, Respondent has since the dissolution
of thcLeague administered the Territorpinthespirit of the Mandate-i.e.,
asif al1the obligations comp~isedin the sacred trust wre s'cil1 in existence.
7. Applicants' comment in regard thereto is as follows:
"Respondent does, it is true, aver that its policies in the Territory
are carried out 'in the spirit of the Mandate', but the spirit which
rnoves Respondent in this respect isunilaterally defined, and rernains
unaccounted for, unreviewed and unreviewable. Sovereignty cir-
cumscribed by such a 'fetter' surely is indistinguishable from the
unfettered kind l."
This comment, of course, goes beyond the basis of Respondent's con-
tention of not being accountable to a supervisory organ: it introduces in
addition the further contention that the Mandate has lapsed. It is true
that there wouId on such basis be no legal obligations resting upon
Respondent in respect of the Territory. But in pursuance of the policy of
adrninistering the Territory "in the spirit of the ïîiandate", Respondent
has de factobeen acting as if al1obligations relevant for present purposes
were still in force, including abstention from unilateral incorporation.
Consequently the rnere fact of expressing a view that the Mandate has
lapsed, cannot be rclied upon as proof of violation of any of the said
obligations, assurning that they are in force. To speak in this regard of
"[s]overeignty .. . indistinguishable from the unfettered kind" is to
indulge in a mere pIay of words, which can in no way assist Appiicants
while Respondent in fact abstains from acting as if endowed with un-
fettered sovereignty in respect of the Territory. In sum, a finding that
the Mandate is still in force will signify that Responclent has been wrong
in an expressed view, but not that Respondent has violated the provisions
of the Mandate in its administration and treatrnent of the Territory.
8. In further arguing their contention that "Respondent's purpose or
motive to incorporate or annex the Territory . . .clearly appears from the
record herein" 2,Applicants Say:
"Respondent's claim of the day-to-day attributes of sovereignty
over the Territory reffects a posture which Respondent has main-
tained with regard to its rights and powers under the Mandate, from
its inception.
The records of the Permanent Mandates Commission disclose its
constant effort to assert the separate international status of the
1
Vide.para.2. supra. SOUTH WEST AFRICA
398
Territory in the face of Respondent's insistence that the Mandate
was in 'practical effect, not far removed from annexation' l."
Respondent denies the suggestion that it was continuously in disagree-
ment with the Permanent Mandates Commission regarding the separate
international status of the Territory.
Respondent admits that there were, during the lifetime of the League
of Nations, discussions and an exchange of communications between it as
Mandatory and the Permanent Mandates Commission relative to the
international status of the mandated territory, and to the allied question
of sovereignty in the mandate system.
Respondent states, however, that whatever differences there may have
been between it and the Commission, Respondent never adopted an
attitude which can in any way be described as a "denial to the Territory
of a separate internationalstatus"
9. Applicantsgive what they term "two illustrations" which, they Say,
"wili sufficeto demonstrate the extent of difference between the Commis-
sion and Respondent in this respect" l.The first illustration asstaternent
by General Smuts in the South African Parliament during july 1925
which led to a discussion in the Permanent Mandates Commission during
June 1926 l.
With regard to thisstatement, which was made at a time when General
Smuts was not a member of the South African Government, Respondent
states as follows:
(a) It is clear from the statement that General Smuts did not regard the
position under the Mandate as being equivalent to annexation, or
that South Africa could, during the existence of the Mandate,
claim sovereignty over South West Africn.
The point of view expressed by General Smuts in addressing
Parliament was tliat under the Mandate South Africa had such
wide powers, administrative and legislative, thnt there was no need
to annex the Territory, but, at the same time, he gave recognition
to South Africa's obligations iinder the Mandate.
Thus he said in the same speech :
"Under these circumstances I maintain-and I have always
maintained-that it will never be necessary for us, as far as 1
can see, to annex South-West. We can alwayscontinttelo fulfil
theconditionsimposedonus by the maladale, and we can always
render annual reports to the League of Nations in respect of the
mandate 3."(italics added.)
(b) The Members of the Permanent Mandates Commission themselves
appear to have expressed different views on the matter raised for
discussion as a result of GeneraI Smuts's speech. Applicants quote
in the Reply comments on the speech by one member of the Com-
mission, M. Orts 4.In contrast thereto Respondent draws attention
to the views of another member, M. Rappard, who is reported to
have said, interalia t,at he-
". ..didnot tkink fht a matter offirinciplewas actually aeected
'IV, p.575.
Ibid.p.576.
' Ibid., pp575-576.here a fuller extract from General Smuspeech is quoted. REJOINDER OF SOUTH AFRICA 399
by thedeclarationof GeneralSmuts. The Covenant,by thetermsof
which mczndatedterrilorieswereadminislered irtIhe name of the
League of Natiofis, remained untozached. General Smuts was
perfectly free to state that an integral part of the territory of
South Africa was administered in the name of the League of
Nations, although, in [his) view ... it would appear more logical
to Say that it was administered in the name of the League of
Nations as if it formed an integral part of the territory l."
(Italicsadded.)
(c) The Commission did not consider it necessary to make any declara-
tion on the matter to the League Council. In the circumstances
General Smuts's statement, and the discussion thereof in the
Permanent Mandates Commission, do not support Applicants'
conclusion that there was on the part of Respondent a "denial to
the Territory of a separate international status".
IO. The other "illustration" relied upon by Applicants is the fact that
certain differences arose between the Permanent Mandates Commission
and Respondent during 1926 with regard to the wording of a boundary
agreement concluded between Respondent and Portugal 2.Inasmuch as
this incident has already been dealt with in the Counter-Memorial3,
Respondent will for present purposes nlerely draw attention to the
following :
(a) Applicants, in quoting from the said agreement in the Reply 2,
again omit, as they did in the Mernorials 4, an important qualifica-
tion contained in the preamble to the agreement. This qualification
was expressed in the italicized words in the following extract from
the preamble :
". .. the Union of South Africa, szlbiectfo the terms of the said
mandate, possesses sovereignty over the Territory of South
West Africa ... 5". (Italics changed.)
(b) Although a controversy did arise as to the meaning of the word
"sovereignty" in the above context, it is instructive tohave regard
to the light in which the Commission viewed the matter. Thus the
Commission reported to the League Council tl-iat the wording of
the p<Lamble-
. . seemstoimply a claim to legal relations ... not inaccordance
with the fundamental principles of the mandates system @'.
(Italicsadded.)
And the Commission expressed the hope that-
". .. [the South African) Government wiIl be so good as to
explain whether, in its view, the term 'possesses sovereignty'
expresses only the right to exercise full powers of administration
and legislation inthe territory of South-West Africa under the
P.M.C., il.fin., IX, p. 34.
* IV,p. 576
Zbid.p,p.28-29.
1, p.38.
Vide II,p. 28.
P.1Lf.C M.in.,XI. p. 204.
7 During the Tenth Session of the Commission the Chairman had said thinstead
of the expression "possesses sovereignty" the "correct expression shou'enercises
soveveignpowers'" (italics added)-P.M.C., Min., X. p. 22. SOUTH \\EST AFRICA
terms of the mandateand subject to its provisions and to those
of Article 22 of the Covenant, or whether itimplies that the
Government of the Union regards itself as bcing sovereign over
the territory itsell".
(c) Applicants omit to state that al1 misunderstanding was resolved
through the acceptance by Respondent, in a letter of16 April 1930,
of reports adopted by the Council of the League to the effect, ilzfer
alia, thnt "sovereignty in the traditional sense of the word does not
reside in the Mandatory Power "=.
(d) During the League of Nations period similar questions also arose
with regard to sovereignty in respect of other mandated territories.
Thus in respect of Ruanda-Urundi, under Belgian Mandate, and
Togoland and the Cameroons, under French mandate, the Perma-
nent Mandates Commission had occasion to discuss legislative
enactments, the wording of which suggested that the IiIandatories
concernecl claimed sovereignty over the territories mandated to
them 3. And with regard to reports on the administrative union
between Togoland and the Cameroons, under British J,fandate,
which suggested a similar interpretation, the Commission commented
as follows:
"While the Commission desires to bring this matter to the
notice of the Council, it does not esaggcrate its importance. As,
howcver, the passages referred to might lend to annexationist
aims being attributed quite erroneously to the mandatory
Powers, it appears to the Commission that their own interest,
no less than that of the League of Nations, requires that in
future anv formula should be avoided which might give rise
to doubts on the subject in the minds of ill-informed or ill-
inteiitioned readers +."
11. In the prcmises aforestated Kespondent denies the conclusion
sought to be drawn by Applicants from the so-called "two illustrations",
namely a "continuing and long-standing posture [on the part of Respond-
ent] of denial to the Territory of a separate international status" 5.
12. Respondent says that, in the light of the aforegoing analysis of
Applicants' "Argument", nothing has in fact been advancecl to support
their conclusion ttiat "Respondent's purpose and motive has (sicb )een,
and remains (sic), thnt of incorporating or annesing the Territory"
On the contrary, Applicants have in no way countered Respondent's
exposition and analysis of its attitude towards the Territory as set forth
in the Counter-Mernorial 6.
l P.iIf.C iln., SI,p. 205.
Vide TI,p.29.
P.M.C., Min., VII, pp. 52-61and P.iJI.C M.n., II1,pp.22 and 222-233. Vida
alsolVright, Q.,Alnndate snder theLeague ofh'ations (1930)p~p206-207.
P.IM.C., Min.,V, p.190 and Wright, Q.,!Ilandateuradcrthe 1-eaguof Nations
(193IV, p.576.
Ibid., pp86-92. CHAYTER III
RESPONDENT'S ALEEGEDPOLICIES AND ACTS
A. GeneraI
I. The second of Applicants' "legal conclusions" aforementioned is
rendered by ttiem as follows:
"Such policies and acts,including pespondent's] rejection of inter-
national accountnbility and its insistence upon the right to govern
the Territory on the basis of an unrcviewable discrction, constitute
i$so facto,and without regard to Respondent's motive or purpose, a
violationof I\'espolzdefil'sobligationtorespect thesefiarate inferfiatiolz
(sic) statusof IheI'evvitory2."
This conclusion caNs for general comment intxvorespects.
In the first place. it introduces ail alternative contention not previously
made by Applicants.
In the nlemorials Applicants alleged violation by Resyondent of its
duty, or duties, to refrain from unilateral annexation and to promote
the progress of the inhabitants toward self-determination 3.Appiicants
sought to establish this charge by referring, firstly, to certain statements
made, irzlernlin,by members of Respondent's Government, which state-
ments, in their submission, proved that Respondent's "purpose is in-
corporation" 4, and. secoridly, to certain acts of Respondent which. in
their contention, had given "practical effect" to Respondent's alleged
intent to incorporate the Territory 4.Although they reiterate this charge
in the Reply 2, thcy ais0 now introduce an alternative contention wliich
is new.
The attitude ndopted by Applicants in this alternative coiitcntion is
that Respondent's policies and acts per se conçtitute "a vio1:~tion of
Respondent's obligation to respect the separate intern:ktional [legal]
status of the 'Territory"-"without regard to Respondent's purposc or
motive"
Thc effect ,isthat the essence of the original charge-:in unnuthorizcd
purpose or inotivc-is ignored in this contention. Furthermore, Appli-
cants advance this neiv contention without amending their legal con-
clusion in the hlemorials, which concliision reads as follows:
"Bq' the foregoing actions, re~d in.the lighl of theU?tionJs avowed
intent, the Union has violated, and iç violating, its international
obligations stated in Article 22 of the Covcnant of the League of
Xations and in Article z of tlie Mandate 6." (Italics added.)
2. Respondent's second point of comment regarding tliis "legal con-
clusion" concerns the following words embraced thcrein, viz.,
' VideChap. 1.para. 5. supra.
IV,p. 576.
Vide Chap. 1,para. r strpva.
1,p. 189.
Ibid., 11.573 and stipra.
1'p. 19.5. SOUTH WEST AFRICA
". . . including pespondent's] rejection of international accounta-
bility and its insistence upon the right to govern the Territory on
the basis of an unreviewable discretion . . .'".
As Applicants' legal conclusion is worded, itis not clear to Respondent
what argument is sought to be based on Respondent's disclaimer of
supervision in the context of the charge liere under consideration. Do
Applicants contend that Respondent's attitude relative to supervision is,
in itself, an act which constitutes "a violation of Respondent's obligation
to respect the separate international status of the Territory"? If so,
Respondent finds it strange that Applicants do not anywhere in their
Reply attempt to justify or ta demonstrate the soundness of such a con-
tention. Indeed, there is a significant omission of any treatment or dis-
cussion of such a proposition in tlie Keply.
Respondent submits tliat such a proposition ~vould be untenable. If
Respondent is correct in its contention-Le., that its obligations to
report and account to, and tosubrnit to the supervision of, the Council of
the League, lapsed upon dissolution of the League, and have not been
replaced by any similar obligationsrelative to supervision 'then, surely,
its rejection of so-called "intern:~tionril accountability" cannot constitute
a violation of any obligation. If, on the other hand, it should be held that
Respondent's aforementioned obligations did not lapse upon dissolution
of the League, then that would signify that Respondent has erred in its
aforestated rejection, and that Applicants' charge of a breach of Article
6 of the Mandate has been establishecl, but not that the "separate inter-
national status of the Territory" has in any way been affected. The sub-
stantive nature of the discretion confcrred upon Respondent regarding
the administration of the Territory can in no way be affected by the
presence or absence of supervision.
3. Another meaning which could be assigned to Applicantç' legal
conclusion is that Kespondent's contention relative to supervision is an
elernent or factor which substantiates Applicants' charge that the other
acts dealt with in the Reply 3 constitute a violation of Respondent's
"obligation to respect the separate international status of the Territory".
But then again there is, save in one instance. a significant omission on
the part of Applicants of any treatment or discussion of the matter on
that basis. In the whole of Applicants' argument in the relevant part of
the Reply Respondent's contention relative to supervision is rnentioned
only once, namely in dealing with the vesting of South IVest Africa
Native Keserve land in the South African Native Trust 5-a matter
which will be dealt with hereinafter 6.In the premises, Respondent is at
a loss to deal further with this aspect of the "legal conclusion", which is
neither clear in itself nor based on any argument or discussion which
could throw light on its meaning.
Respondent deals next with the several acts referred to by Applicants
in the Reply aç being relevant to the "legal conclusion" here under
consideration. In the Mernorials these acts were relied upon in con-
IV, p.576.
Vide Chap. II. para. 5, supra.
IV.pp. 576-586.
Ibid., p584.
Vide paras.24-27,infra. REJOINDER OF SOUTH AFRICA 4O3
junction with the alleged intent of incorporation ', a charge which, as
indicated above 2,is repeated in the Reply. In so faras such acts are
again referred to in the Reply in the latter context, Respondent will
deal therewith also on that basis.
B. Conferment of South African Citizenship
4. In Applicants' hlemorials the conferment of South African citizen-
ship on the inhabitants of South West Africa ulas rclied upon as one of
several acts alleged to have "given practical effect" to a plan or purpose
on Reçpondent's part to incorporate South West Africa 4.Respondent in
its Counter-Mernorial dealt fully with this charge *. In the Reply Appli-
cants now introduce tlie alternative contention that even "without re-
gard to Respondent's purpose or motive" this act constitutes a "viola-
tion of the duty to respect the separate international status of the
Territory" 6. Respondent denies that the act in question constitutes
such a violation, and submits that Applicants have advanced nothing
in support of this newly formutated alternative contention.
5. While admitting that the conferment, by Act No. 44 of 1949, of
South African citizenship on the inhabitants of South West Africa
involved, in so fnr as the Native inhabitants were concerned, an in-
consistency with the resolution of the Council of the League of Nations
of 23 April rgz3 7,Respondent submits asfollo~vs,on tliebasisof the facts
related in its Counter-hfemorial-which facts are not contested by
Applicants Band the argument propounded therein :
(a) The admitted inconsistency centres around the manner in which
citizenship was conferrcd on the Native inhabitants of the Territory.
\mat the Council objected to was a particular maiiner of confer-
ment of nationalitp and not the fact of conferment of nationality by
itself. Indeed the Council specifically stated that-
"[ijt is not inconsistent with [paragraphs I and z of its resolu-
tion] that individual inhabitants of the mandated territory
should voluntarily obtain naturalisation from the Mandatory
Power . .. g".
(b) The fact of there bcing a common nationality, shared by the in-
habitants of the Alandatory State and that of the mandated territory,
could therefore, in terms of the Council's resolution, not affect
the international status of the mandated territory.
6. Applicants Say in the Rcply that the contentions advanced by
Respondent in the Counter-Memorial to the above effect are not-
". .. consistent with the essential purpose of the resolution which,
in the words of the Permanent Mandates Commission quoted above,
l Vide para.r, supra.
Ibid. nd IV,p.576
IV*PP. 576-579.
1, p.190.
5 IV,pp. 93-100.
Ibid.p,.579.
The relevant portionf the resolution is ciatIV, p.94.
Vide Chap. 1.para. 4.supra.
Vidt third para. ofthe resolutian quotat IV,p. 95.4O4 SOUTH WEST AFRICA
was to assure that in accordance with the principles of Article 22
of the Covenant of the League ofNations, inhabitants of the Terri-
tory 'should be granted a national status wholly distinct frorn
thal of the nationak of the mandatory Power' '".
Assuming that the purpose of the resoiution was as stated by the
Permanent hlandütes Commission, the Council nevertheless did sot by
its resolution intend to declare a prohibition against al1forms of confer-
ment of citizenship, and could therefore riot have regarded conferment
of citizenship as, in itself, affecting theeriiational status of mandated
territories.
Applicants' furtherstatement that-
"[tlhe fact thatbp volerntaryaction, arly inhabitantof the Territory,
or al1of them, might be naturalized by Respondent, does not justify
the prohibited action of cowtprclsoryconferment of Kespondent's
citizenship upon them 2",
begs the question in issue. Respondent has not contended that because
so-called "voIuntary action" was permitted, "compulsory conferment"
would be permissible in tems of the Council's resolution. IVhat Res-
pondent does Say is that conferment of citizenship was not regarded by
the Council as an act whichcould,by itself, agect the internationalstnfus
of Rmandafed territory.
7. Inasmuch as the legislation in question did not extinguish or
diminish any rights which the Natives of South West Africa may have
had to a separate statusas inhabitants of that Territory 4,-a point with
which Applicants do not deal at al1in the Reply-the Act did not offend
against the cardinal concern of the Permanent Mandates Commission
and the Council, viz., to guard against ". .. the assimilation of the
inhabitants ofthe B and C mandated territories to tlie nationals of the
mandatory Power" =, which assimilation would be regarded by the
Commission as ". ..contrary to the spiritof the mandates system .. ."
(Italics added.)
8. That the legislation uras, as regards the manlaer of conferring
citizenship,in so far as the Native inhabitants were concerned, ai vari-
ancewith the actual terms of the Council'sreçolution of23April1gz3, isnot
denied. Ziespondent has been unable to ascertain whether the Counc~l's
resolution was considered or overlooked whcii thc legislation in question
was prepared and passed in 1949. The Parliamentary discussion throws
no light on the objectives of this aspect of the legislation, nor could any
assistance in this regard be derived from departmental records or officiais
who dealt with the matter.
Looking nt thc matter ex Pest facto,however, it inay be relevant to
point out that circumstances in 1949 were substantiaily different from
what they had been in 1923 when the Council's resolution was passed.
By 1949 the mandate system as such had ceased to exist. Various States
had, particularly in debates at the United Xations, expressed the view
l2Ibid., p578.
.Act No. 44 of 194inStafutes of the Uiaion of South Africa 1949,pp.414-452.
VideIV,p. gg (.para. 14).
Vide BIemorandum ofRIarquis Theodoli, P.i\f.C., izI.p.96 quoted atIV,
P.578. REJOINDEK OF SOUTH AFRlCA 4O5
that the Mandate for South ]l'est Africa had lapsed, whereaç other States
had contested that view l. The question whether the Native inhabitants
of South West Africa could any longer be regarded as being under the
protection of a "mandatory Power", was therefore a matter of un-
certainty and controversy in the international world. In these circum-
stances it was, in Respondent's çubmission, more advantageous for the
Native inhabitantç of South West Africa, and thcrcfore more in keeping
with the spirit of the sacred trust, to confer upon them the definite
benefitç of South African citizenship-in addition to whatever rights or
status they might have had as inhabitants of that Territory-than to
leave the question of their national status entirely in :istate of suspense
and uncertainty.
Applicants do not dispute that prior to the present proceedings no-
one apparently ever suggested that the passing of the Act in question
was i~iconsiçtentwith the international status of South Weçt Africa 2.
g. Responderit reiterates that in passing the Act it did not intend to
affect the separate international status of the Territory, and denies that
the said Act constitutes a violation of the duty to respect such status.
C. Inclusion of Representatives from South West Africa
in the South African Parliament
IO. Respondent in the Counter-Nemorial dealt with Applicants'
allegations relative to the legislation wlïich provided for the inclusion
in the South African Parliament of representatives from South West
Africa 5, including the charge that it "was part of a plan to incorporate
the Territory politicallf"' In Respondent's submission it thereby
efiectively refutcd such charge.
In support of their present alternative contention that the said legisla-
tion "defeatç Respondent's duty to respect the separate international
status of the Territory" 6, Applicants neitlïer relate any new facts nor
advance any fresh argument, but content themselves with giving the
"views of rcsponsible organs of both the United Nations and the League
of Nations" 6.
II. The first of such views relied upon by Applicants is expressed in
the 1954 report of the Committee on South West Africa.
It is clear from the extract which Applicantç cite from the report ',
that the Committee itself refrained from expressing its opinion "on the
strictly legal aspect of this question", and merely stated that it "be-
lieves" that the inclusion of representatives from South West Africa
in the South African Parliament "is lzkely tofirejudicethe development
of the Territory as a separate political entily". (Italics added.)
In the first place the Committee advanced no grounds for its belief,
and, in any event, uras not prepared to Say that the position affected the
separate international status of South West Africa. Apparently the beIief
l Vide II, p. Gg.
Vade IV, p.99 (para.15).
IV, pp. 579-58'
Ibid., pp.101-104.
3 Act Ko. 23of 1949 inStatutesofthe U?iionofSouth Af~ica rg49, pp.178-196.
IV, p.581.
Ibid., p579~406 SOUTH WEST AFRICA
was not based on an objection to the fact of representation er se, but
on the manner of representation, viz., "by Union nationals OP European
descent "l.
12. The second statement expressing views relied on by Applicants
is extracted from a report of the sarne Committee for the year 1956,
and follows on that part of the report, cited in the Counter-Memorial
in support of Respondent's proposition that the Committee itself-
". .. could not suggest that, seen objectively, representation of a
Mandated territory in the legislative institutions of the Mandatory
Yower would be inconsistent with the international status of such
Territory 2".
does not serve
The extract from the report quoted by Applicants
as a denial of the above proposition.
On the one hand, the Comrnittee bv implication criticized Respondent
for not extending representation in the South African Parliament to all
the inhabitants of South IVest Africa. On the other hand, the fact that
the South West African representatives in the South African Parliament
have a voice and vote not only in matters relating ta the Territory, but
in al1 matters affecting South hfrica itself ". .. appear[ed] to the Com-
mittee to imply an assumption by the Union of sovereignty over the
Mandated Territory ..." '.
It is clear that the Committee did not regard representation i.n ztselj
& inconsistent with the international status of Soutli West Africa. The
implication of an assumption of sovereignty on the part of Respondent
merely because the South IVest African representatives have a voice and
vote in the South AfricaP narliament in rnatters affecting South Africa
itself,isunkvarranted.
Such representation and the rights of the South West African repre-
sentatives, are in themselves neutral when inferences are sought to be
drawn as to whether-
(a) the Territory is, in terms of the Mandate, being adrninistered "as
an integral portion of the [Republic] of South Africa", to mhich
Respondent "may apply the laws of the pepublic] of South
Africa" 5,
or whether-
(b) the Territory is actually being incorporated, with an "assumption
of . ..sovereignty" on Respondent's part. Other or accompanying
facts, or expressions of policy, have to be considered in order to
determine whether there is an intent to incorporate or annex the
Territory. Respondent has already denied such an intent or motive
on its part 7,and Applicants have brought no new evidence with
a view to shoivingthe contrary. Indeed, the legislation isapparently
now discussed by Applicants oniy with reference to their alter-
IV.p. 579.
Ibid.p,.102.
Ibid., pp. 579-580.
Ibid.. p580.
' Vide Art.2 of the Mandate for German South-West Africa.
Vide the Cornmittee's reporasquoted at IV,p. 580.
IV, p. 103. REJOINDER OF SOUTH AFRICA 4O7
native "legal conclusion" l for the purposes of which, in their own
words, "motive or purpose" isirrelevant 2.
13.The other staternents relied upon by Applicants as expressing the
"views of responsible organs of . ..the League of Nations" have been
extracted by them from the Minutes of proceedings in the Permanent
Mandates Commissionduring the year 1934 4.With regard tothe extracts
quoted by Applicants 5,Respondent statesas follows:
(a) The discussion at the ssid session of the Commission did not relate
specifically to the question of representation of the inhabitants of
South West Africa in the South African Parliament, but to the
much broader "question of the incorporation of South West Africa
in the Union of South Africa as a fifth province" 6.
The discussion did not arise from any forma1report to the Com-
mission, but as a result of newspaper reports concerning a resolution
of the Legislative Assembly of South FVestAfrica which aimed at
incorporation of the Territory '.
(6) In the absence of full particulars of the proposal of the Legislative
Assembly and the implications thereof, the discussion in the Com-
mission took the form of a general exchange of thoughts by the
individual members on the subject of incorporation.
Indeed, M. Orts, who originalIy raised the subject, is recorded as
having said that he-
"...felt thatit wouldbedifficultto determine exactly the scopeof
the problem as long as the Commission was not in possession of
al1the factors. At present the information it had received was
merely that a vote had been taken by the Legislative Assembly
of South West Africa on a motion recommending the incorpo-
ration of the mandated territory in the Union as a fifthprovince,
subject to the provisions of the mandate.
The Commission was thus faced with a somewhat vague
situation, and it was impossibIe for it to determine to what
extent the incorporation of the mandated territory as a pro-
vince of the Union would affect the territorial entity of South
West Africa ..
In th'6circumstances, he stated that, in his view,
... the proper procedure ... would be to frame an observation
in which the Commission .. .reserved its opinion as tothe com-
patibility with the mandatory system of the solution recom-
mended by the Legislative Assembly a."
In the end this was the course adopted by the Commission 9.
(c) The extracts quoted by Applicants in the Replys are from the
recorded statements made on this occasion by three of the members
Vida para.I,supra.
IV, p. 576.
Ibid., p. 581.
+ P.M.C.. Afin.,XXVI.
P.M.C., Afin.,XXVI, p. 163.
' Ibid.pp. 50-51. - -
Vbid., p. 164.
9P.M.C., Min., XXVI, p. 166. SOUTH WEST AFRICA
of the Commission, namely Nessrs. Rappard, Merlin and Sakenobe.
Upon a proper reading of the full statements of the said mernbers,
it appears cicarly that hlessrs. Rappard and Merlin directed their
thoughts generally to the broad question under discussion, namely
incorporation, and not specifically to the question ~vhether re-
presentation of the inhabitants of South West Africn in the South
African Parliament would per se be in conflict with the Mandate.
Thus M. Rappard, in sounding a note of caution in answer to a
statement by Lord Lugard l,observed that-
". . . there could be no comparison between the administration
of certain mandated territories as integral portions of the adja-
cent colonial territories belonging to the mandatory Power and
the incorporation of the mandated territory in the territoryof
the mandatory Power itself
The portion of M. Rappard's staternent quoted by Applicants
rnerely illustrated one of the points of difference mentioned by
him in order to substantiate his contention that no such comparison
could be made. He did not express it as his view that representation
of the inhabitants of South West Africa in the South African
Parliament would fier se be in conflictwith the Mandate.
So, also, XI,Merlin occupied himçelf çoleljr with thoughts on the
broad question of incorporation, wkich, in his view, would result
in the hlandated Territory becoming "part of a political iinity-
riamely, the Union of South Africa" 3. The far narrower question
here in issue, viz., representation in Respondent's Parliament,
was not even mentioned by RI.Merlin.
It is true that hl. Sakenobe, in the course of giving what he
terrned a "very general opinion on the matter", expressed the view
that representation of the inhabitants of South West Africa inthe
South African Parliament would be "quite contrary to the present
status of the Territory" In advancing such a contention, which
Respondent çubmits tobe wrong,M. Sakenobe, however, stood alone.
(d) Furtherrnore, Applicants omit to mention that in the discussion
certain members also expressed views directly in conflict with the
opinion of M. Sakenobe, and with the position now taken by Appli-
cants.
Thus Lord Lugard, referring to an opinion by Professor A. B.
Keith, an eminent authority on constitutional law, to the effect
that Respondent could, ifit wished, incorporate South West Africa
in its territory, stated that he "was inclined to share [Professor
Keith's] view" 4.
Lord Lugard said that, as long as Respondent was bound by the
Mandate and continued to observe the provisions thereof, "in-
corporation of South \iTestAfrica in the Union of South Africa could
not be regarded asan attempt at annexation" '.And in this regard
he drew attention to the fact that the motion adopted by the
Legislative Assembly of South West Africa stipulated that any
change should be "subject to the provisions of the Mandate" '.
l Vide sub-para(dl,infra.
2P.M.C., Mirn., XXVT, p. 164.
Ibid., p. 165.
Ibid., p163. REJOINDER OF SOUTH AFRICA 4O9
It is irnplicit in the view expressed by Lord Lugard that the
inclusion of representatives from South West Africa in the South
African Parliament would not be in conflict with the Mandate.
14. In the prernises aforestated, Respondent submits that Applicants
are clearly wrong in stating that "responsible organs of both the United
Nations and the League of Nations" have expressed "views ... opposing
inclusion of representatives from South West Africa in the South African
Parliament" l.The statements of the only organ of the United Nations to
which Applicants refer-the Cornmittee on South West Africa-do not
reflect theview contended for by Applicants =.
Likewise, no such opposing view was expressed by any organ of the
League of Nations-unless, of course, one member of the Permanent
Mandates Commission, M. Sakenobe, can be regarded as an "organ"
of the League; but then the conflicting views expressed by another
member of the Commission would equdy have to be regarded as the
views of another "organ" of the League.
15. Although Applicants mention Respondent's argument that, in the
case of certain trust territories forrnerly under mandate, the United
Nations permitted arrangements similar to that provided for in the
legislation under consideration relative to South West Africa 4,they
avoid dealing with the argument 5.
16. In conclusion Respondent denies that the inclusion of Repreçenta-
tives from South West Africa in the South African Parliament-whether
viewed separately, or together with conferment of South African citizen-
ship upon the inhabitants of South West Africa 6-constitutes a violation
of the duty to respect the separate international status of the Territory.
D. Administrative Separationof the Eastern
Caprivi Zipfel fromthe Rest of SouthWestAfrical
17. In the Mernorials Applicants' charge was that the purpose of sepa-
.rating the administration of the Eastern Caprivi Zipfel from the adminis-
tration of the rest of South West Africa was to give effect to Respondent's
alleged intention to incorporate the Territory 6,and that such separation
was effected irnder the pretext that it was occasioned by administrative
difficultie'.
In support of this charge they relied upon a contention of the Corn-
mittee on South West Africa that the separate administration of the
Eastern Caprivi Zipfel prejudices one of the "General Conditions" which,
according to the Council of the Lea~e of Nations, had to be fulfilled
"before a mandated territory [cauld] be released from the mandatory
.regime"
TV,p. 581.
Videparas. I1-12,supra.
Videpara. r3 (dl, supra.
IV, pp. IOZand 579.
With regard to like arrangementsinthe saidTerritories while under Mandate
videthe statement by Lord Lugard in the Permanent Mandates Commission,
P.M.C., iliIin., XXVI, p. 163.
1,D. 191.
Ibk., i> 194
Ibid.pp. 164-165for therestof the said GeneralConditions IV,epp.I14-115.41° SOUTH \\'EST AFRICA
In the Reply Applicants completely shift their ground relative to this
charge. They now concede "that the Eastem Caprivi Zipfel is not readily
.accessible from the rest of the Territory" l, that it is in "an exceptional
situation" l,and that "problems of accessibility [couId] make adminis-
trative separation expedient " 2.While still relying on the contentions of
the Committee on South West ilfrica regrztding tlie aforementioned
"Generalconditions", their chargeis nowthat Respondent has ". ..taken
unjustified and improper advantage of [the] exceptional situation" l.This
charge rests upon a contention that Respondent is obliged, in terms of
the Mandate,
". .. to take other steps to preserve the territorial integrity of the
hlandated Territory as a lvhole, and to develop the 'sense of terri-
torial consciousness among ail the inhabitants' which is required by
the United Kations 2",
and that Respondent has failed to comply with such obligation 2.
Respondent will deal with this contention iii the next succeeding para-
graphs, but is concerned at this stage merely with pointing out the trans-
formation which Applicants' complaint in this respect has undergone.
Whereas in the Memorials Applicants questioned the soundness of the
reaçons advanced for separating the administration of the Eastem
Caprivi Zipfel, and condemned the act of separation as such, they now
concede that such sepsration could have been rendered expedient by
geographical and other circumstances beyond Rcspondent's control; but,
in order to persist with a complaint in some form or another, they
attempt to introduce a new obligation into the Mandate, formnlated
with reference to requirements of the United Nations regarding trust
territories-an obligation which, as wili be shown hereinafter, has no
legal foundation.
18. Applicants do not specify, with regard to their factual allegations,
what "other steps" Respondent should have taken, nor do they indicate,
with regard to their legal contention, whence they derive an obligation
in terms of the Mandate to take positive action of the vague nature
contended for by them. If any such obligation were to exist, it could have
arisen only under Article z, paragraph 2, of the Mandate, and would
have to be to the effect that Respondent must positively promote the
integration of ail the population groups into one whole. "Territorial
integrity" and "territorial consciousness" are in fact expressions used in
some organç of the United Nations, as describing objectives considered
desirable in preparing the populations of certain trust territories for the
exercise of self-determination by a particular method, viz.,by a majority
decision of the population of the whole territory, considered as one.
Respondent has in the Counter-Nemorial given its reasons 3,which have
in no way been controverted by Applicants, for rejecting the suggestion
that an obligation to adopt such a particular method in al1 cases and
under a11circumstanceç can be said to be "implicit in the undertaking of
the Mandate itself" 2.Sirnilarly, Respondent gave its reasons 4,which
have again not been controverted by Applicants, for its conviction that
lIV, p.58r.
Ibid. p. 582.
Vide ibid., p71-72 (especiallpara. 14).
Ibid., pp. 71-72. Vide also II, Book IV, passim,especially pp. 458-~GI(paras.4-7)
and 472-473 (paras.26-29);dso IV, pp. 213-214. REJOISDER OF SOUTH AFRICA 4II
such particular method.wil1, in the circumstances of South West Africa,
not be appropriate or likely to do justice to al1 the various peoples con-
cerned, inter alios the peoples of the Eastern Caprivi Zipfell. Further-
more, the same organs of the United Nations have in certain cases
accepted total partition of former mandated andlor trust territories,
e.g., Palestine, the British Cameroons =, and Ruanda-Urundi 3, which
confirms the necessity of treating each case solely on its own merits.
Respondent denies that, under the circumstances pertaining to South
West Africa, it was under any obligation to üttempt to foster "territorial
integrity" or "tcrritorial consciousness" in so far as, in its own view, such
attempts would not be realistic or conducive to the achievement of
eventual self-determination by the peoples concerned in the rnanner most
suitable and just for al1concerned.
Moreover, itis not clear what relevance the concepts in question can
have to a charge of failing to respect the separate international status of
South West Africa.
xg. With re ard to Applicants' repetition of the contention of the
Committee on !outh West Africa regarding the aforementioned "General
Conditions" ', which contention they endorsed in their Mernorials
Respondent pointed out in the Counter-iîlemoria16 that the condition
in question concerned the ability of a terntory to maintain its territorial
integrity and politicai independence aflerItnvingbaelsgrantedindepelrdence,
and was therefore intended to arise for consideration only when it was
proposed to bring the hlandatory regime in respect of a particular
territory to an end by the grant of independence.
Applicants' response thereto is that-
". . . the said General Condition is applicable throughout the
course of the deveIopment of a hlandated Territory, and not
merely in connection with a proposa1 to briiig a Mandate régime
to an end '".
Not only do Applicants fail to state any reason for this contention, but
a reference to the other conditions in the set of "General Conditions"
wholly disproves thjs contention 8.Furthermore, jt must be noted that
the "General Conditions" are negative in nature-they prescribe con-
ditiones sineqrtn non for the gant of independence, and do not stipulate
positive duties incumbent on a Mandatory. Indeed, ~ieither the Perma-
nent Mandates Commission nor the League Council was competent to
prcscribe the positive duties contended for by Appiicants. The immediate
reason why the League Council requested an enquiry, and the Permanent
Mandates Commission conducted the enquiry which gave rise to the
formulation of the conditions in question, viz., the proposed grant of
Vide,e.g.,IV,p. 118(para.36).
' II, Pp519-520.
4 Ibid.p,.$25.
' Vide pava. 17.supra.
1.p. 193.
IV,pp. 114-115.
15id.p,.582.
Vide NO. (1of the two "classes of preliminary conditio"itedat IV,p. I14
and the conditioncited atpp. 114-115.qX2 SOUTH \EST AFRICA
independence to Iraq, also corroborates Respondent 'scontention '.And,
finally, Kespondent points out that the Commission in its report to the
Leaguc Council referred to the said conditions as-
".. . conditions the presence of which will in any case indicate the
ability of a political commzcnit~to stand alone and nzaitctczilitts own
existe~zcas un indefiendentStwte 2".(Italics added.)
zo. Applicants argue further as follows:
"Moreover, tlie Geiieral Condition is applicable even in a situation
in wliich a Mandated regime ended by lalvful incorporation, inas-
much as such incorporation must be the result of a free exercise of
the right of self-determination, implying a choice among several
alternatives, one of ~vhichmight be independence. Irrespective of
the ultimate choice by the inhabitants of a Mandated Tcrritory,
the Territory must, prior to such choice, 'be capable of maintaining
its territorial integrity and political independence'3."
This argument involves a non sequiltsr. Self-determination does imply
a choice between alternatives, one of mhich might be independence; but
that is no ground for snying that the League Council intended the condi-
tions in question to operate before the choice is made, and whatever the
choice may be. liideed, non-application of one or more of the conditions
may be a reasoii for the inhabitants to prefer incorporation in,or amalga-
mation witli, another Territory or State. Pnrticularly in the case of C
Mandates, it was conceivable, by reason of the circumstances set out in
Article 22 (6) of the Covenant, that the inhabitants would reach a stage
of rnaturity sufficient for the exercise of self-determination, but without
any prospect of satisfying the requirements for independence. Their
choice of alternatives at such a stage could be only between, on the one
hand, incorporation in, or amalgamation with, another territory, and,
on the other hand, indefinite prolongation of the mandate status. The
"General Conditions" mould be totally inapplicable when a choice
between such alternatives had to be made. Kespondent, therefore,
reiterates that the Mandates Commission, in framing the conditions in
question, and the Lertgue Council in approving thercof, were concerned
only with the case where a mandated territory was "desirous of emanci-
pation", thereby raising the question lvhether the people concerned had
"become fit tostand alone without the advice and assistance of a manda-
tory" 4.
21. Applicants' further statement that-
"[tllie Permanent Mandates Commission ccased to function in the
year of the adoption of the foregoing Proclamation, and thus the
Commission had no opportunity to consider or express views
thereon 3",
is partly true and partly false.
Aithough the Commission ceaçed to function in 1b3 t was informed
early in that year of the proposed proclamation to bring about a separa-
1 Vide Evans, L. H., "The General Principles governing the Terminationof a
hlandate".The America~iJournal of International LaVol.26, So. (Oct.1932),pp.
732-Ibid.,p. 749.,
3 IV, p.582.
4 Vide general considerations mentioneby the Commission; IV,p. 113. REJOINDER OF SOUTH AFRICA .4=3
tion of the administration of the Eastern Caprivi, and expressed the
view that-
". .. the administrative ,arrangement contemplated calls for no
observations on its part provided ail the provisions of the mandate
are properly applied in the eastern portion of the Caprivi Zipfel l".
22. Applicants conclude their argument as follows:
"Respondent's failure to take any measures designed to preserve
the territorial integrity of the blandated Territory as a whole,
Respondent's total legal separation of the Eastern Caprivi Zipfel
from the Territory, and Respondent's annexation of the area, must,
in Applicants' submission be regarded as eIements in Respondent's
plan to incorporate and annex the Territory as a whole. By such
actions Respondent has failed and refused to respect the separate
international status of the Territory, thereby violating Article 2 of
the Mandate and Article zz of the Covenant of the League of
Nations 2."
Respondent feels inclined to ignore the several irresponsible assertions
rolled up in this concluding passage of the argument, but will forthe sake
of completeness deal briefly therewith.
In the first place, as regards the idea of "territorial integrity"in so far
as separate administration of the Eastern Caprivi may possibly be said
to mn counfer to this idea, Respondent has shown that the only objec-
tives involved are the best interests of the people concerned, and that no
support is thereby afforded for a charge of failing to respect the separate
status of South West Africa 3.A fortiori no support can be afforded there-
by for an allegation of a plan "to incorporate and annex the Territory as
a whole".
Secondly, there has not been a "total legal separationJJ of the Eastern
Caprivi from the rest of South West Africa. The Eastern Caprivi has, as
from rg39, merely "cease[dj to be administered" aspart of the Territory.
In al1ofher respects it remains in law part of the Territory and shares its
separate international status. Reference may in this regard be made to
paragraph 20 of Respondent's Riemorandum on the Odendaal Commis-
sion's report 5, which shows contemplation of a possibility that the
administration of the Eastern Caprivi may again be joined with that of
the rest of South West Africa.
Thirdly, there has been no "annexation" of the area. Applicants'
allegation that it has been annexed, pro tanlo even outstrips their original
contention relative to the whole of South West Africa, namely that
although Kespondent has as yet "not chosen . .. to announce de jure
annexation, its purpose is incorporation" 6.
Finally, Applicants revert to a consideration of motive and purpose
,when they referto "elements in Respondent's plan ta incorporate and
annex the Territory as a whole", a consideration which, on their own
presentation, has no relevance to their second legal conclusion at present
1 P.M.C., &Ti%. X,XXVI, p. 28t. Vide also IV,pp.111-1 12.
IV, p.582. '
vidépLra. 18,supra.
Proc. NO. 147 of1939(S.A.)in TheLaws ofSouth West Afïica 1939,Vol. XVIII,
p. 28.
IV, pp.212-213.
1,p. 189.414 SOUTH WEST AFRICA
under discussion. In any event, Respondent repeats its denial that there
isany such plan '.
23. In the premises Applicants' charge that Respondent has, in sepa-
rating the administration of the Eastern Caprivi, "failed and refused to
respect the separate international status of the Territory" 2,is denied.
E. Vesting of SouthWest Africa Native Reserve Land
in the South Afican Native Trust
24. Applicants' charge regarding the vesting of South West Africa
Native Reserve land in the South African Native Trust, as presented in
the Xiemorids, was that such vesting is to be regarded as an element
"of [Respondent's] plan to incorporate the Territory" 3. In the course
of discussion they also stated that it was an act which could not be
"reconciled with the international status of the Territory" '. Respndent
denied this charge and averment, and dealt fully with the whole situation
in order to dernonstrate that such vesting in the South African Native
Trust was a purely administrative enactment which in no way affected the
distinct character of the reserves as portion of South West Africa, which
Territory is administered by Respondent as a territory witli a separate
international status
25. Applicants now recite passages quoted in Respondent's Counter-
Mernorial frorn a report of M. van Rees to the Permanent Mandates
Commission, from a Memorandum of the Legal Section of the Secretariat
of the League of Nations, and from a resolution of the Permanent
Mandates Commissionof7July 1924,andthey Say:
"The South West Africa Native Affairs Administration Act of
1954(which Act vested the South IlTest African Native Reserve
Land in the South African Native Tmst), jsby its terms in conAict
with the conclusions of the Legal Section of the Secretariat to the
effect that Respondent acquired no 'right of absolute oivnership' of
landsand other public property in the Territory 6."
The particular respect in which Applicants altege tliat Act No. 56 of
1954 isby its terms in conflict with the conclusions of the Legal Section
of the Secretariat, is the provision in section 5 (2)of the said Act to the
effect that Iand, the setting apart or reservation of kvhichas trust land
is rescinded, becomeç "unalienated State property and rnay be dealtwith
as such" 7. Tlie whole charge as regards vesting of reserve land in the
trust has therefore now been made to rest on this submission regarding
section 5 (2)of the Act.
26. The çubmission of Applicants is without substance. The provision
in question is in no way in conflict with the conclusions of the Legal
Section ofthe Secretariat. Anp land releasedfrom the trust, and becoming
IV, p. I13 andChap. II, para.12, supra.
IV, p. 582.
1, p.194; videalso p.195.
4 Ibid., p. 195.
' IV,pp. 121-131.
6 Ibid.,p.584,
' Act NO. 56 of 1954,sec.5 in Statuteofthe Union ofSouilz Africa I954p. 563;
vide also IV, p584. REJOlXDER OF SOUTH AFRICA 4I5
"unaiienated State property" in terms ofthe said provision, is held by
Respondent in exactly the same way as any other unalienated lands in
the Territory which vest in Respondent.
In this regard Respondent repeats what was stated in its Counter-
Mernorial relative to unalienated state lands in the Territory, viz.,
"Respondent has at al1times accepted the legs1position as set out
in the said resolution [Le., the resolution of the Permanent Mandates
Commission of 7 July 19241 and in the hlernorandum of the Legal
Section of the Secretariat of the League, viz., that Respondent did
not receive 'absolute ownership' of the land in question, but that
it ... 'obtained the cession of the territory and the transfer of the
property in question' only in its capacity as Blandatory, or Truçtee,
with powers of management and administration. Respondent has,
furthemore, at al1times acted on the pnnciples set out in the Legal
Section's Mernorandum, viz., that whilst it has the power to dispose
of 'State lands', such right issubject to the obligation of using the
proceeds for 'furthering the prosperity and development of the
Mandated territory as a whole' I." (Footnotes ornitted.)
The attitude now adopted by Applicants in their argument in the
Reply is that their cornplaint is directed not at the vesting of reserve
land in the South Africün Native Trust,but as a provision wbich enables
the release of such land from the Trust. Why this provision, which
enables Respondent to deal with released land as "unalienated State
property", should cal1for cornplaint, is the more difficult to understand
when regard is had to the fact that the same position obtained prior to
the passing of Act 56 of 1954, when the reservation of any land for the
sole use and occupatjon of Natives could be rescinded by a resolution
of both Houses of Parliament andthe land could thereupon be treated as
unalienated state land '. The position then was, and still is, in no way
at variance with the conclusion of the Legal Section of the Secretanat.
27. With regard to Applicants' further statement that-
"[s]uch rcserved power must, in addition, be apprniscd in the light of
Respondent's refusa1 to submit its policies and acts in respectof the
Territory to international review, supervision or accountability j",
Respondent refers to what has been stated in paragraph 3 above.
Respondent does not appreciate how its contention that the United
Nations has no supervisory powers over its administration of South
)est Africa-a contention which Respondent submits is sound-can
have any bearing on the propriety or othenvise of itç acts of administra-
tion in the Territory.If such acts of administration are in thernselves un-
questionable, the fact that there is no supervision cannot render them
questionable. On the other hand, if such acts of administrationconstitute
violations of Respondent's obligations, then again the existence or non-
existence of supervision cannot alter the situation.
28. In the premises aforestated, Respondent denies Applicants' charge
that Act No. 56 of 1954 ipso facdoviolates Respondcnt's duty to respect
l IV,p. 125.
VadeAct NO. 49 of 1919, sec. 4 (3). reierrIV, p.128,footnote 7.
IV,p. 584.416 SOUTH WEST AFRICA
the separate i~iternational status of the Territory, and Kespondent re-
iterates itsdenial of the further charge that there is a plan to incorporate
the Territos. of South tI7est Africa into the Kcpubiic or to annex the
Territory '.
F. Transferof Administrationof Native Affairsto the
.Minister of Bantu Administrationand Development
29. In the Mernorials Applicants charged that tliis transfer was also
to be regarded as an element "of the plan to incorporate the Territory
into the Union" 2,and further averred that the "[tlransfer of 'Native'
affairs to aii agency external to the Territory ... cannot be reconciled
with the iiiternational statuç of the Territory"
Kespondcnt in the Counter-Mernorial dealt with, and in its submission
refuted, this charge and averrnent '.
Applicants in the Keply merely repeat the averment that the transfer
is "inconsistent with Respondent's duty to respect the separate inter-
national status of the hfandated Territory" without advancing any
argument in support thereof.
They also repeat the charge that the legislation effecting the said
transfer is"one of many measures ... by which Respondent has mani-
fested its intention to incorporate and annex the Territory" '. This
charge too is made in the Reply without furthcr evidence or argument,
Savethat Applicants quote the views of the United Nations Cornmittee on
South West Africa to the effect that the transfer in question "... forms
part of the process and policy of progressive political integration of the
Territory with the Union . . ." 8,and was designed to-
". . .bring about as complete an assimilation of 'Native' policies in
the Union [now Republic] and the Territory, taken as a whole, as
the Union Government may wish to achieve
In the light of Respondent's clear and full statement as tothe intended
purpose and effect of the said transfer 4,which has not in any way been
dealt with by Applicants, and is in no respect controverted in the Com-
mittee's report, there.is no need to deal with the Committee's views,
save to deny their unwarranted and unsubstantiated conclusion as tu
Respondent's motives.
30. With regard to the legal position, howcver, Rcspondent does
point out that the Committee on South West Africa, in the same report
from which Applicants have quoted, was not prepared to express the
view that suc11transfer ipso facto constituted a breach of the Mandate.
The Committee reported that-
VideIV, p. IIg.
Ibid., p.194.videalsop. 195.
' IV, pp. 119-121.
Tbibi,. 584
Act NO. 56 of 1954.sec. 5 inStatules othe Union ofSouth A frica 19.54p.563.
' IV, p. 585.
G.A., O.H.,Elevertth SessSuppl. NO. 12 (h/3151), para. 36p. 11,asquoted at
TV, p. 585. RE JOINDER OF SOUTH AFKICA 4I7
"[qrom a çtrictly legal point of view, and regarded as an isolated act,
it may be possible to claim that the transfer falls within pespond-
ent's] authority under the Mandate to,administer the Territory as
an integral portion of the Union lm.
31, In a footnote at IV, page 586 of the Reply Applicants state:
"Kespondent's continuing purpose to carry out to the fullest
extent its plan for incorporation and annexation of the Territory
is confirmecl by its endorsement of the principles of the Odendaal
Commission . . .=",
and they refer to the Commission's recommendation that-
". . . the Government of the Republic of South Africa take over
[certain] existing branches which are at present administered by
the South Weçt Africa Administration '".
In advancing this contention Applicants entirely ignore the fact that
Respondent was granted "full powers of administration and legislation
over the territory . . .as an integral portion of the Union of South
Africa" 4,and thnt tllc organization of the administration of the Territory
is a matter veçted in Respondent's discretion. Applicants further ignore
the cogent reasons advanced by the Commission for the recommendation
here in issue, as well as Kespondent's stated attitude thereanent. The
purpose for whicli the Commission made such recomrnendation was, as
stated by the Commission, simply and solely the advancement of the
interests of the Territory and its inhabitants, particularly the non-White
population groups, by better administration and increased assistance
from the Republic's resourccs, especially financial and technological.
The Commission, after careful consideration and motivation, recom-
mended ". .. major development projects which wili require big capital
surns, a high degree of managerial talent and trained manpower" " and
the Commission stnted that it was convinced-
". .. that its recommendations can best be carried out bp the
Government of tlie Republic of South Africa if tlie '['erritory can be
linked up more closely, botli administratively and financially, wvith
the Republic, so tt-iat the Government of the Republic of South
Africa. can take over the financial burdens and the functions of
control involved in the carrying out ofthe recommendations 5".
The Commission concluded that-
". ..the upliftrnent and development of the non-White groups . .is
a task for direct handling in al1its facets by the Central Govemment
of the Republic of South Africa, and that, largely in vieiv of the
implications involved, only the proposed White area in South West
Africa should be administered by an Administrator, Executive
Committee and Legislative Assembly 6".
The fundamental considerations in arriving at this conclusion were
summarized by the Commission to the following effcct :
1 G.A.,0.22.. Elovei~thSesSuppl. No. 12 (.1/315i), para. 36,II.
IV, p. 586, footnotr.
R.P. No. 12/1964. p.Gr (para.221).
4 Art.z of the JIandate for German South-West Africa.
R.P. Eo. 1211964,p. 57 (para.195).
6 Ibid., p61 (para.214).413 SOUTH \F7ESTAFRIC.4
(i) the spirit of responsibilitÿ to promote to the utrnost the material
and moral well-being and the social progress of the inhabitants
of the Territory ';
(ii) the considerable extent of the new phase of dcvelopment envisaged
by the Commission, especiallp in regard to acceleration of the
rate of development of homel,mds for the various non-White
groups ;
(iii) the requirement, apart from financial implications, of expert
guidance, technical knolvledge and effective planning 3;
(iv) the desire to promote the participation of the non-imite population
groups in every sphere of the development of their respective
homelands ;and
(v) the desirability of eliminating overlapping of responsibility in
the ..vernment and administration 5.
In reacting to the Commission's approachautlined above, Respondent's
Governmen t stated that-
". . .it is in agreement with the general view of the Commission, and
believes that closer investigation will coiifirrn that the major devel-
opment projects contemplated, particularly in the interests of the
non-White population groups, can bc carried out to the best ad-
vantage through greater financial and administrative contributions
thereto from tlie Republic, of the nature envisaged in the recommen-
dations 6".
Respondent, however, clearly indicated that this was one of the matters
raised by the Commission's report "which require further investigation,
information and consideration before the Government can reqch any
final decisions" 7,and stated that a number of considerations had com-
bined to produce the result that wîth regard to the recommended "reor-
ganization of administrative functions as between organs of the Territory
and those of the Kepublic ... no decisions concerning implementation
areat present heing taken" 6.
It will therefore be clear that the approach of the Commission and
Respondent's attitude thereanent, conceni prospective measures entirely
within the provisions of the Mandate, directed solely at the well-being
of the inhabitants of the Territory. Respondent fails to appreciate how
anything in this regard can be said to support, Ict alone confirm, a "con-
tinuing purpose to carry out .. . [a] plan for incorporation and annexa-
tion of the Territory".
32.Respondent accordingly denies the charges which are made in
Applicants' Reply relative to the transfer in question.
s R.P.No. 12/1964p.. 61 (para.216).
Ibid.(para. 217).
Ibid. (para218).
Ibid. (para219).
Ibid. (para220).
6 IV.p. 214.
' Ibid.p. zrz(para. 20). CHAPTER IV
TEE ALLEGATION THATRESPONDENT'S POLICIES AND
MEASURES ARE INCOMPATIBLE WITH ITS DUTYTO
PROMOTE CONDITION S NDERWHICH THE
INHABITANTSOFTHETERRITORY MAY PROGRESS
TOWARDSELF-DETERMINATO IN
1.The third legal conclusion formulated by Applicants in the Reply l
reads as follows:
"Respondent's policies and acts complained of by Applicants,
constitute a violation of Respondent's duty to promote conditions
under ufhich the inhabitants of the Territory may progress toward
self-detemination of the future status of the Territo2."
In the Counter-Mernorial Respondent dealt with this charge in relation to
each of the measures and acts complained of by Applicants 3,and, it is
submitted, refuted the charge in each respect.
Save for their reference in passing to "Respondent's denial of inter-
national accountability" 4,Applicantç' argument in the Reply contains
nothing new, and no new allegations of fact are advanced. Applicants do
not Say in what respect Respondent's denial of international accounta-
bility isat al1relevant in the present enquiry, and, Saveforrcferring tpwhat
has already been stated with regardto supervision and accountability in
the present context 5,Respondent does not consider it necessary to deal
further therewith.
z. Applicants state that-
"... [Respondent's] policies and measures.. .vioIate tlie territorial
integrity othe Mandate and its political independence. The tlirust
and effect ofuch measures is to foster disintegration of the Tcrritory
and its political dependencupon Respondent.
It is self-evident that such a state of affairs is incompatible with,
and frustrating of, progress of the inhabitants toward self-detenni-
nation
This statement illustrates thextent to which AppIicants produce a con-
fused, inconsistent and anomalous result in circumscribing their con-
ception of "progress toward self-determination". They indiscnminately
use the words "self-determinat ion", "political independence", "self-
government" and "sovereignty" 6asif these concepts are al1synonymous.
In their confusion they imply, in the statement here under discussion,
that a rnandated territory enjoyed "political independence", whicis, in
Respondent's subrnissjon, ipsofacto a contradiction of the mandate
system, certainly in sfar as theC Mandates were concerned, and which
exceeds $ro tanto al1 Applicants' previouç subrnissions and staternents.
l IV,p.573. Vide Chap.1, para. 5, supra.
Ibid., pp. 93-131.
Ibid., 586.
' Vide Chap. III. par2-3.supra.
IV,pp 238-242.420 SOUTH \t'EST AFRICA
Amidst the confusion, however, it appears as if Applicants' line of
reasorting in this passage proceeds from two basic premises, viz.,
(a) that the poitica<devcloprnent of the ~erritorÿ must, in terrns of
the Mandate, be directed specifically towards the achievement of
"independence" l,and
(b) that a majority decision by the population of the Territory, seen as
one, in accordance with the concept of "territorial integrity", is
the only permissible method whereby the various peoples of the
Territory can, in terms of the Mandate, esercise "self-determina-
tion" 2.
Kespondent has given its reasons 3,which have in no way been contro-
verted by Applicants, for rejecting both of these basic premises.
In the absence of any substantiation of their allegations, and in the
absence, moreover, of anÿ aliswer by Applicants to the exposition in the
Counter-Memorial of the reasons for,and effect of, the actsand measures
complained of by them, Respondent submits that the charge formulated
by Applicants in the "legal conclusion'' hcre under consideration is devoid
of substance.
3. In concluding their argument, Applicants add the following
remarks :
".. .such a state of affairs . ..is ... consistent onlpwith Respond-
ent's avowed purpose and manifest plan to treat the Mandate as
'being, in effect, close to anncxation', and in line with Respondent's
explicit disciaimer :
'. .. that its right of administration iç based on continued
existence of the Mandate' 4". (Footnotesomitted.)
In Respondent's submission these remarks are pointless. Although
Respoiident disclaims that its right of administration is based on contin-
ued existence of the Mandate, it has in fact adrninistered the Territory
in the spirit of the Mandate. Moreover, Respondent has dealt with
Applicants' charges on the assumption, for pirrposes of argument, that
the Mandate is still in force 5, and has in its rcspectful submission justified
its actson that basis.
4. In conclusion, Respondent repeats its esplicit denial of Applicants'
charge that it has violated its obligation to promote conditions under
which the inhabitants of South West Africn may progress toward self-
determination 6.
l IV.op. 238-2~2.
1bzd.rp. 582.'
3 Vide.e.g.II, pp.458-460 and 472-473: IV. pp 70-73; pp. 213-214 and videalso
Chap.III, para. 18, supva.
IV, p. 566.
5 Vide Chap. 1,para. 2,supra.
6 VidtIV. p. 132. CHAPTER V
CONCLUSION
r. In the light of what has been stated in Respondent's Counter-
Memorial l,and in the foregoing chapters of this Rejoinder, Respondent
denies each and every one of the charges advanced by Applicants in
Chapter VI11 ofthe Memorials, as repeated and amplified in theReply 2.
2. In the premises Respondcnt dcnies Applicants' conclusion that
Respondent's policies and acts "violate its obligations as stated in Article
22 of the Covenant of the League of Kations and Article 2 of the Mandate
agreement" 3.
1 IV, pp. 67-132.
Vbid.. pp. 572-586.
Ibid., p586. PART VI
ALLEGEDVIOLATIONS OF ARTICLE7 OF THE MANDATE
A, Introductory
1. Respondent deals in this Part of the Rejoinder with section C of
Chapter VI1 of the Reply l,which is concerned with alleged violations
by Respondent of Article 7 (1) of the Mandate.
The subject-rnatter of the charge under consideration wilI be dealt
with herein under the following heads:
The legal basis of Applicants' charge ;
Applicants' statements of fact;
Conclusion.
The treatment of the said matters will be in the order aforestated.
B. The Legai Basisof AppIicants' Charge
z. The charge made in the LIlemariaIs\vas that Respondent's alleged
acts as particularized in Chapters V, VI, VI1 and VI11 of the Memorials,
"read ilithelightof[Respo?dent's] intelrt, constitute a unilateral attempt
to modify the terrns of the Mandate without the consent of the United
Nations, and that suchacts accordingly are, severally and in theirtotality.
a violation of Article7of the Mandate" 2.(Italicsadded.)
In support of this charge Applicants relied on the Advisory Opinion of
II July 1950 in which the Court held, inter alia,that, as a result of the
dissolution of the League of Nations, modifications of the terms of the
hlandate require the approval of the General Assembly of the United
Nations.
In the Counter-MemoriaI Respondent indicated that there was an
essential link between the Court's finding relative to Article 7 of the
Mandate and its previous finding in the Opinion that "powers of super-
vision in respect of the administration of the Mandates" were vested in
the GeneralAssembly of the United Nations 3and Respondent contcnded
that, inasmuch as, in its submission, the last-mentioned finding was
incorrect, the first-mentioned finding was equally unacceptable in law.
For the reasons advanccd in the Counter-Mernorial 4,as amplified in
this Rejoinder 5,Respondent repeats the contention aforestated; but,
in the Counter-Memorial, Respondent regards itas unnecessary to devote
further consideration to this question, inasmuch as. for the reasons
hereinafter stated,a determination whether in the present circumstances
the terms of the Mandate, if it should stillbe in existence, can be modi-
fied, and, if so, in what manner, appears to be of academic interest only.
IV.p. 587.
1, p. 196.
IV, p.135.
' Vide II, pp. 113-r64.
' VidePart II, Chap. III, supra. O
SOUTH WEST AFRICA
3. Before proceeding to deal with the allegations of fact made by
Applicants in the Reply, Respondent draws attention in the following
paragraphs to certain matters conceming the legd aspect of Applicants'
charge as now formulated in the Reply.
4. In the Counter-Mernorial Respondent rernarked, with reference to
Applicants' allegations in the Memorials, that they appear-
".. .to concede that, in order to establish a contravention of Article
7, thcy would be required to prove an intent on Respondent's part
to modify the terms of the blandate l".
Applicants' reaction thereto in the Reply isthat Respondent-
"... misconstrues [theirj Submission g as being lirnited to a com-
plaint that Respondent is, or has been 'motivated by an intent to
modify the terms of the ùlandate' z",
and they Sayin this regard:
"As Applicants have made clear, Respondent's violations of the
Mandate in this, as in other respects, do not turn upon the question
of 'good or bad faith', or subjective motivation. Respondent is
presumed to intend the reasonably predictable consequences of its
acts. In thissense, intentionis implicit in Respondent's conduct ... 2"
Attention has already been drawn to the fact that Applicants adopt the
very same attitude in the Reply relative to their charges concerning
alleged violations of Article2 of the Mandate 3.Whereas, on the one hand,
they aver that their charges are not baçed on ntala fides,they contend, on
the other hand, in accordance with a "universally accepted auiom" ',
tliat "in the absence of evidence to the contrary, the predictable conse-
quences of conduct are presumed to be intended" ',and, by the applica-
tion of this principle in their examination of Respondent's acts, they
draw inferences ~vhich are compatible only with improper motives on
Respondent's part. And thus, while disclairning reliance on what they
term "subjective motivation" 2, they in fact seek to establish motivation
by an allegcd "objective evalnation of [Respondent's] conduct" 4.In
effect, therefore, Applicants' charge, as already dernonstrated 3,is clearly
one of nzalfaides. Similarly, in the present instance their contentionrests
in principle on alleged intent on Respondent's part to modify the terms
of the Mandate 2.
. 5. IVhereas, in their treatment of Respondent's aileged violations of
Article 2 ofthe Mandate, Applicants in the Reply seek to introduce a new
cause of action based on the alleged existence of a so-called Iegal norm of
,non-discrimination or non-separation", no mention is made of such a
norm in the part of the Reply at present under consideration. There is
accordingly a striking contradiction in Applicants' approach as now evi-
denced in the Reply. Their contention relative to Article 7 is that the
terrns of the Mandate cannot be modified "unilateral1f"'which cari
only mean that consent to modification is required on both sides, i.e.on
the part of Respondent as well as, according to their argument, on the
IV. p.135.
Ibid., p587.
Vide Part III, sec. A. par6.and sec. C, paras. 29-38SU~YU.
' IV. p.257. REJOINDER OF SOUTH AFRICA 425
part of the United Nations-nevertheless their contention relative to a
particular term of the Mandate, viz., Article 2,is that its content has now
becorne redefined, and in effect altered, by a process independent of
consent, i.e., by the application of a so-called legai nom, the existence
and applicability of which have always been contested by Respondent l.
Respondent has demonstrated that no such legal norm is embodied
inthe Mandate, or is othenvise binding on Respondent '.For the present
Respondent is concerned only with drawing attention to the fact that
Applicants' charge relative to Article 7, as advanced in the Mernorials,
is inconsistent with their contention regarding the alleged norm of "non-
discrimination or non-separation", and that a consequential amendment
to their charge \vouId accordingly be necessary. In fact. however, no such
amendment is sought, and Applicants in the Reply simply-
"... reaffirm their contention that Reçpondent's policies and actions
complained of in the Jfernorials, constitiite an attempt on the part
of Respondent unilaterally, and without consent of the United
Nations, to modify the terms of the Mandate 2". (Footnotes omit-
ted.)
In the result Applicants have appareiitly overlooked the fact that
Respondent's policies and acts complained of in Chapter V of the
Memorials, which chapter was concerned with Respondent'ç duties under
Article 2 of the Mandate 3,are now, in the Reply, sought to be evnluated
and adjudged against the criterion embodied in an alleged legal iiorm
which is said to have corne into existence, and to be bi~idingon Respond-
ent, without its consent and even without the forma1 consent of the
United Nations.
Iftiiere has indeed been an attemptto modify the terms of the Mandate
u~ziluterally,which is the charge advmced by Applicants, then it seems
that the party guilty of such attempt is not Respondent.
C. Applicants'Statementof Fact
6. Applicants deal with the facts considered by them to be relevant
to their charge relating to Article7 of the Mandate in one passage of the
Reply rvhich reads as follo~vs:
"On the basis of the demonstration made in the Memoriais, and
elaborated in this Reply, that Respondent has admittedly dealt
ivith the Territory as ifit were vested with 'day-to-day sovereignty'
thereover and that Respondent has denied obligations of internatio-
nal accountability while at the same tirne asserting rights of adminis-
tration and possession, Respondent's polides and actions reftect its
premise that the Mandate has survived, but only to the estent
necessary to give Respondent the colour of a claiin to the Terri-
tory l."
In the Counter-Memonal and inother Parts of this Kejoinder Respond-
ent has dealt with Appiicants' charges relative to alleged violations of
Vide Part III, sec. B. supra.
IV, p. 587.
The policies andactscomplained of inChapter V ofthe Xlemorials aere relied
upon by Applicants in respect of their charge relative to Art(1, pI~Ga)nd are
stiii so relied upon in Reply (vide IV,p. 587, footnot2).426 SOUTH WEST AFRICA
Articles 2, 4 and 6 of the Mandate, which form the basis of Applicants'
further charge that Respondent has violated Article 7 by attempting to
modify the terms of the Mandate unilaterally. Respondent submits that
in answering the allegations made by Applicants in respect of the afore-
mentioned charges, it has shown conclusively that it has not violated any
of the said Articles of the Mandate.
In the followingparagraphs Respondent deals with the furtller conten-
tions advanced by Applicants in the above-quoted passage of the Reply.
7. Elsewhcre in this Rejoinder Respondent has explained what was
meant in the Counter-hlemorial by the use of expressions such as "in their
practicale@ect,lzot fur removed fram annexalion" and the "duy today
exerciss of the altributes of soeiereignty"3. It is not necessary to repeat
here what has been stated in this regard, save to say that, on the assurnp-
tion thatthe bIandate is still in existence 4, the contention that within its
powers of administration of the Territory the "day to day exercise of
the attributes of sovereignty" vests in it-in the sense in which that
expression has been explained-can in no way be regarded asinconsistent
with the terms of the Mandate. Respondent has at aH times since the
inception of the Mandate administered the Territory in accordance with
its said conception regarding its powers, and denies that in so doing it has
in any way violated its obligations under the Mandate or has attempted
to modify the terms of the Mandate *. Respondent in this regard also
draws attention to the fact that Applicants use a self-coined expression
"day to day sovcrcignty" 5,the meaning of which is apparently under-
stood by thern, whereas elsewhere in the Reply they profess to have
diiiîculty with regard to the meaning of the more exact expression uçed
by Respondent, viz., "the day to day exercise of the attributes ofsover-
eignty", in connection with which thay remark as follows:
"Respondent does not offer an indication of the respects, if any, in
which 'day to day' exercise of sovereignty diHers from year to year
exerciseofthe same prerogative 'j."
In Respondent's submission further comment on Applicants' attitude
in this regard would be superfluous.
8. With regard to Applicants' statement that Respondent has "denied
obligations of international accountability while at the sarne time
asserting rights of administration and possession", Respondent admits
that it has since, and as a result of, the dissolution of the League of
Nations contended that it is not obliged to account to, and to subrnit to
the supervision of, any international organization or body with respect
to the administration of the Territory. Respondent's contention cannot
however be regarded as a unilateral attempt to modify the terms of the
Mandate.
Upon the dissolution of the League the provisions of Article 6 ofthe
l Vide Part II. Chap. II, parIO and Part V, Chap. II, paras3-12, supra.
Vide II, p96.
'IV.p. 69.
'It is uponthis assumption, for the purpose of argument, that Respondent dealt
vide IV,p. 135.' charge relativto rtllegedviolations of Article 7 of the Mandate;
IV, p.587.
Ibid., p.574.footnote 2. REJOINDER OF SOUTH AFRICA 427
Mandate became inoperable and, inasmuch as they were, in Respondent's
submission, not modified into or replaced by other provisions serving the
same or similar purposes, the said provisions lapsed l.
Respondent therefore denies that its attitude in this regard amounts
to an attempt to modify the terms of the Mandate.
9. The only contention of Applicants which remains to be dealt with
is that-
". . Respondent'~ policies and actions reflect its premise that the
Mandate has survived, but only to the extent necessary to give
Respondent the colour of a claim to the Territory 2".
What Applicants have conveniently ignored in advancing this con-
tention is that Respondent stated specifically in the Counter-Mernorial
that it "... does not claim, but on the contrary expressly disclaims,
that its right of administration is based on continued existence of the
Mandate" 3, a matter which is again dealt with elsesvhere in this Re-
joinder 4.
There is accordingly no substance in Applicants' contention that
Respondent acts on the "premise that the Mandate has survived" for the
purpose of giving it "the colour of a claim to the Territory". Respondent
has indeed, as an alternative contention-founded on the premise that
accountability to tlie Leagu-uesupervisory organç \vas not an essential
part of the Mandate-advanced that the Mandate is stiil in existence but
without any duty ofreport and accountability to any supervisory body 5.
Furthemore, for the purpose of its argument relative to alieged violations
ofArticle 7, Respondenthas assumed that the Mandate isstill inexistence 6.
Without such an assumption any discussion of alleged attempts to
modify the terms of the Mandate would have been pointless. Neither this
alternative contention, however, nor this assumption, affords any ground
for the statement that Respondent advances the "prernise that the Man-
date has survived" as something "necessary to give Respondent the
colour of a clairnto the Territory" 7.
The above answer, in Respondent's submission, also disposes of
Applicants' further comment that "[nlo more drastic or effective 'modi-
fication' of the terms of the Mandate is imaginable than one which
disclaims duties whileasserting rights" 2.
Respondent does not, on the alternative basis that the Mandate is in
existence, disclaim al1duties thereunder :indeed, it has assumed argueado
that the Mandate survives and that its duties under the Mandate (ex-
cepting those depending on the existence of the League of Nations)
accordingly remain in existence. It is upon this basis that Respondent
has met Applicants' charge that it has attempted to modify the terms
of the Mandate.
l Vide Part II, Cbap. IIIsupra.
IV, p.587.
11:P,174,
Vzde Part II,Chap. IV A, paras.32-35, sup~a~
' Vide II, p. 97 andPart II, ChapIV A, para. 13,st$ra.
IVip. 135.
On the contrary, videPart II, Chap. IV A, para. 35,ofthis Rejoinder. D. Conclusion
IO. In the premises aforestated Respondent submits that, quite apart
frorn the legal contention advanced in the Counter-Memorial land re-
peated above 2, Applicants have failed to establish in any way that
Respondent is, or has been, motivated by an intent to modify the terms
of tlie Mandate, or that it has-
"... conducted itself with regard to the Territory in a manner
consistent only with a Mandate the terms of which would be utterly
incompatible with those of the Mandate in issue 3".
11. es ponde nherefore denieç Applicants'charge that it has violated
Article7 (1)of the Mandate.
'IV, p.135.
2IV,rp.2587.ra. PART VI1
I. Upon the basis of the statements of law and fact set forth in the
Counter-Mernorial, as supplemented in this Rejoinder and as rnay here-
after be adduced in further proceedings, Respondent reaffirms the Sub-
missions made in the Counter-Mernorial land respectfully asks that such
Submissions be regarded asincorporated herein by reference.
z. Respondent further repeats its prayer that it may please the Court
to adjudge and declare that the Submissions of the Governments of
Ethiopia and Liberia, as recorded in the Mernorials and as reaffirmed
in the Reply 3, are unfounded, and that no declaration be made as
claimed by them.
(Sgd.) R. MCGREGOR
(Sgd.) J. P. VERLORE NAN THEMAAT
Agents of the Government
of the Republic of South Africa
lII,p. 6.
3IV,p..588.-199. LIST OF DOCUMENTATION
PART I
United Nations
A. GENERAA LÇSEMIILY
I. FourthCommittee
G.A., O.R., Seventeenth Sess.Fourth Comm., 13S1st Meeting,
PP-339-340-
2. SpeczalCornmitteeforSouthWestAfrica
Summary Record of the Eighth Meeting, 24 July 1962, A/AC.
IIO/SK. 8,pp. 3 and 5.
Surnmary Record of the Thirteenth Meeting, 2 Aug. 1962,
A/AC.IIO/SR. 13,pp.4-5and 7-9.
Summary Record of the Fourteenth Meeting, 3 Aug. 1962,
A/AC.IIO/SR. 14,pp. 3-11.
Report of the Special Committee for South West Africa, G.A.,
O.R., Seventeenth Sess.;Supp1. No.12 (A/5212),p.20.
B. SECRETARIAT
1.OficeofPublicInformation
U.N. Press Release GA/z501,26 May 1962 ,oint Statement on
Pretoria talks followingvisiofU.N. Representatives to South
West Africa.
2. DirectorofPersonnel
Information Circular to hlembers of the Staff ST/ADM/SER.
A1837.29Mar.1963.
PARTII
1.LeagueofNations
A. OficialJournal,1920 (NO.6),pp. 339-340.
B. OficiaEJor4rna1S, fieciaLSu$#lementNo. 194, 1946,pp. 278-279.
C. Mim.des oofthe Permanent Mandates Commission, sess. XxVI,
1934, P- 164.
D. OTHER
I.Covenant ofthe League ofNations.
2.Mandate forGerman South-West Africa.
3.The Mandates System-Origin-Princi~1es-A~plication
(Geneva, 1945) p.p. 6 and53.
ïI.UnitedNations
GENERAA LÇSEMBLY
x.Resolutions
65 (I),14Dec. 1946 in U.N. Doc.A/64/Add. 1, p. 123.
141 (II)I Nov. 1947 in U.N. DOC.A/grg, pp. 47-48.
227 (III), 2NOV.1948in U.N. DOCA . /81o,pp. 89-91.
337 (IV), 6 Dec. 1949in U.N. Doc. A/Iz~I, p.44. REJOINDER OF SOUTH AFRICA 43I
338 (IV), 6Dec. 1949in U.N. Duc.A/125r, p.45,
2.Plenary Meetings
G.A., O.R., Second Sess., Vol. 1, 104th Plenary Meeting,
pp.581 and 585; 105th Plenary Meeting, p. 618.
G.A., O.R., Foarth Sess., 269th Plenary Meeting, p. 532.
3. Fourth ConzmitteeMeetings
G.A., O.R. ThzrdSess., Part 1,FozcrtlComm., 78th Meeting,
p.314; 81st Meeting, p. 349; 82nd Meeting, p. 360.
GA., O.R., Fourth Sess., Fou&h Comm., 135th Meeting,
p.247; ~39th Meeting, p. 269.
III.France
Conférence de la Paix 1919-20. Recueil des Actes de la Conférence,
(Paris:Imprimerie Bationale, 1934)~Partie VI, Traitésavec
les PuissancesEnnemies mise en vigueur,A, Préfiaratiode la
mise en vignceurI~TFasc., pp. 335-337, 340-341and 353.
IV. Books
AUTHOR SND TITLES
A. 1. Hall,H, D., Mandates, Defiendenciesand Trtisteeshi* (Lon-
don: Stevens and Sons, 1948), pp. 68-69 and 117.
2, Earl of Halsbury, The Eaws of England, Third Edition,
Simonds Edition (Butterworth & Co., Publishers Ltd.,
1962) Vol. 38, pp. 976-977.
3. Hudson, M. O., International Legzslatio4,VOIS.(Washing-
ton :Carnegie Endowment for International Peace, 193r),
Vol. 1,p. xiii.
4, Madol, H. R., The Uniled Nations Association Yearbook
1947 (London: Hutchinson S: Co., PubIishers Ltd.), pp.
291-292.
5. Lord McNair, The Law of Treaties (Oxford: The Clarendon
6.White, 1C.M. and 7TVellç,M. M., Underhill'sLaw relating to
Trusts and Trustees, Tenth Edition (London :Buttenvorth
& Co., Publishers Ltd.,1950) p~p. 384-387.
7.University of Chicago Press, 1930)~pp. 363, 388 and 472.:
B. TITLES
The ShovterOxfordEnglish Dictioaary on Historical Princi les,
Third Edition revised with Addenda, Texr.and ed. by 2 T.
Onions (Oxford: The Clarendon Press, 1959)p. 197.
V. Articles
AUTHOR SND TLTLES
Bowett, D. W., "Estoppel before International Tribunals and
its Relation to Acquiescence", British YeBook of Internatio-
nal Law,Vol. XXXIII (1957)~pp. 176-202at pp. 188-190.and
202.432 SOUTH WEST AFRICA
PART III: SECTION A
1.United Nations
GEXERAL ASSEMBLY
Fourth ConzrnitteeMeetings
G.A., O.R., Sixteenth Sess., 1225th Xeeting, p. 429,
n. BOO~S
TITLES
The Slrorter Ox/orEnglish Wictionary on Historical Princifiles,
Third Edition revised with Addenda, revand ed.C.T. Onions
(Oxford: The Clarendon Press,~gjg),p. 2116.
PART III: SECTION B
1.Leagueof Nations
A. Minutes of thePevmanent Mandates Commission s,ss. IV, 1924,
P. 154.
B. OTHER
I.The Mandates Syste~t-Origin-Prznciples-A$filzCation
(Geneva, 1945) pp. 28-32 and 53.
2. Mandate for German South-West Africa.
II. UnitedNations
SECRETARIAT
United Nutio~tsTrealy Series-Treatieand international agree-
ments registered or filed and recordedth the Secretariat of
the United Nations,Vol. 15 (19481,p.112.
III. Booksand Pamphlets
A. AUTHOR ASXD TITLES
I.Ganji,M., I~atemalionalProtection of Httman Rights (Par:s
Librairie Minard, 1962)p. 47.
2.Lord Hailey, An Afric~nSarney (London: Oxford University
Press, 1g38)p.432.
3. Lauterpacht, H., An Internationnl Bill of the Rights of Mafi
(KewYork: Columbia University Press~gqg),p. 116.
4. Lauterpacht, H., International Law and Humla Rights
(London: Stevens & Sons Limited, 19501p,. 353.
5. Rosenne, S.,The Interaalionol CourO/Jzcslice-An Essay in
Political and Legal Theory (Leyden: A. W. Sijthoff's Uit-
geversrnaatschappij19571 p,62.
6. ofParis, 6 Vols. (London: Hodder and Stoughton, 1920-24;)
Vol. 1, pp. 193195 and 399.
B. TITLES
I.Encyclical Letter, "Pacem in Terris". Wis Holiness John
XXIII by Divine Providence Pope (Vatican Polyglot Press,
19631,pp. 25-26. REJOINDER OF SOUTH AFRICA 433
2. The Shorter Oxford Egzglisk Dictionaryon Historica~Prin-
ciplesThird Edition revised with Addenda, rev.and ed. by
C. T.Onions (Oxford: The Clarendori Press,1959),p. 1468.
IV.Articles
AUTHOR SND TITLES
1.Fitzmaurice, Sir Gerald, "The Law and Procedure of the
InternationalCourt of Justice,1951-54 General Principles
and Sources of Law", British Yearbookof International Law,
Vol. XXX (1953),pp.1-70 atpp. 5,25 and 26.
2.Fitzmaurice, Sir Gerald, "The Law and Procedure of the
International Court of Justice,1951-54 T reaty Interpreta-
tion and otl-ier Treaty Points",British Yea~bookof Inter-
.nationalLaw, Vol. XXXIII (1957 )~. 203-29 3tpp. 212,
zzj, 226.
3. Lautcrpacht, H.,"Restrictive Interpretation andthe Prin-
ciple of Effectivenèss in the Interpretationof Treaties",
British Yearbook of InternationalLaw, Vol. XXVI (1949),
pp. 48-85, ap. 83.
PART III: SECTION C
1.League ofNations
A. Oficial Journal,1920 (NO.6), pp. 334-341.
B. Minutes of thePermanelztMandates Commission,sess. IX, 1926,
P. 134.
C. OTHER
I.The Mandates System-Origirt-PrinciPles-AP#Iication
(Geneva, 1945).
2.The Mandate for German South-M'est Africa.
II. UnitedNations
The Charter ofthe United Nations.
III. Books
AUTHORS AND TITLES
r. Bentwich, N., The Mandates System (London: Longrnans,
Green and Co., 1930)~p. 98.
2. De Laubadère, A., TraitéElémentairede Droit Administratif
(Paris: Librairie Généralede Droitet de Jurisprudence,R.
Pichon et R.Durand-Auzias, 1963), p. 214,
3. De Smith, S. A., Judicial Reviezof Administrative Action
(London: Stevens 8: Sons Ltd., 1g5g)p. 167.
4. Forsthoff, E., Lehrbuch des Verwaltztngsrechts(München:
C. H. Reck'sche Verlagsbuch-handlung, 1g61),Vol. 1, p. 84.
5. Galeotti,S., The Judicial Control of Public Authoritiein
England and in Italy (London: Stevens &- Sons Limited,
19jq)p,p. 102-162.
6. Lauterpacht, H., An International Bill of the Rights of Man
(New York : Columbia University Press, 1945) p)p. 12-14,
174-r75 and 187-185.434 SOUTH WEST AFRICA
7. Lauterpacht, H., International Law and HzkmalaRights
(London: Stevens & Sons Limited, 1950)pp. 377 and 383.
8. McNair,A. D. and Lauterpacht, H. (Eds.), A?$nualDigestof
Public Inter~ationalLaw Cases,1927-1928(London: Long-
mans, Green and Co.,1g31),pp 55-56.
g. Venezia, J., Le Pouvoir Discrétionnaire(Paris: Librairie
GénéraIede Droit et de Jurisprudence, K. Pichon et R.
Durand-Auzias, 1959) p,. 137.-
IO.Weil, G. L., The E~uropeanConveatiolzon Human Rights:
Background, Development and Prospects (Leyden: A. W.
Sythoff, 1963)~pp. 81-166, 194 an229-232.
II.Wright, Q., Mandatesunder the Leagueof Nations (Chicag:
University ofChicagoPress, 1930).p. 197.
IV+Articles
AUTHOR SND TITLES
Lagrange, M., "Chronique Européenne: Cour de Justice de la
Communauté Européenne du charbon et del'acier", Revuedu
DroitPublicetdelaSciencePolitique en Francetd L'Etra~ger,
No.3 (Juillet-Septembre 1955pp 570-631,at pp.583-593.
PART III: SECTIONE
CHAPTERS 1, II AND III
1. UnitedNations.
A. GENERA AS,SEMBLY
Resolutions
G.A., O.R., SeventeenlhSess.,Suppl. No. 17 (A15217),p. 73.
B. SECURITY COUNCIL
I. U.N. Roc.SI5784(29June 19641,pp. 38and 42.
2. U.N. Doc.Sj5950 (IOSep. 1964),paras. 3,4$-87, 103-105and
145-1.55-
C. Eco'ro~rc AND SOCIAL COUNCIL
I. U.N. DOC.ST/TRI/SER.A/I~/VO~.3, Progressof theNon-
SeEf-GoverningTerritoriesunder the Charter,Vol. 3, pp. 18
and22.
2. U.N. Roc.El3935 (7July 1964),p.42.
D. TRUSTEESHI POUNCIL
G.A.,O.R.,Sixteedh Sess.,Suppl. No. 4 (A/4818),pp. 29-30.
II. Belgium
Ruundu-Urmdi, Geogru#/zy ami History, Belgian Congo and
Ruanda-Urundi Public Relations Office (Brussels, 1960p,23.
III. Cyprus
CyfivecsA Handbook on the Island of Aphrodite, issuedby the
Publication Department of the Greek Communal Chamber,
CYP~~ (19641,p. 7. REJOINDER OF SOUTH AFRICA 435
IV. Federationof Rhodesiaand Nyasaland
Debates of the Federal Assembly, Second Session, Second Parlia-
ment, 28 Mar. to 19July 1960C,ols.362 and887.
V. Republicof SouthAfrica
RePortsofConzmissions
K.P. No. 12/1946, Rgport of thfiCommissiw of Errq~iry into
South West Africa3Aflnirs 1962-1963,pp. 81-107.
VI. UnitedKingdom
I. Cmnd. 1030, Histo~ical Survey of the Origins and Growlh of
Mau Mau (London: Her Majesty's Stationery Office, 1955).
PP. 39,51 and 316.
2. Cmnd. r148, RePort of the Advisory Commissiotr on the Review
of the Constitutioof Rhodesia and ATyasakand(London: Her
iIiajestyls Stationery Office,19pp. 16-17
3. Cmnd. 1899, Kenya, Report of ihe Regional Boundaries Com-
mission (London: Her Blajesty's Stationery Office, 1962), pp.
8, 0,IOand 14,
4. Colonial O@ceReport on Zanziba~ for the Years1957 and 1958
(London: Her Majesty's Stationery Office,19$9), p1.
5. Cy$rus :The Facts (London: The CentralOfficeofInformation),
6. Zanzibar (No. RF.P.5609, London: Reference Division Central
Officeof Information, 1963),pp. 3-5and25-26.
7. Commentaryfrom Britain :Why Britain isIntroducing Immigra-
tion Rules (Issuedby the United Kingdom Information Service,
22Nov. 1961) pp.42 and 47.
8. The immigraliola Act, 1910 (9-10Edkvard VIX, Chap. 27),as
amended in 1919 (9-10George V, Chap. 25),sec. 38 (c).
VII. Books
A. AUTHOR AND TITLES
I. Adam, T. R., Government and Politics in Africa Soulh of
theSahara (~gOz )p,.108-109.
2. Allighan,G.,The Welensky Story (1962),pp. 231-232and2j9.
3. Awolowo, O., Path to Nigerinn Freedom, London (1947),
PP.48-50.53-54.
4. Bascom, W. R. and Herskovits,M. J. (Eds.), Continztity and
chavgein Ajrican Cultuves(Chicago, 1962p.. (vi.)
5. Bourret, F. M.,Ghana-The Road to Independencc1919-1957
(London, 1g60),pp. 8-9.
6. Bretton,H.L., Power and Stability in Nigeria, ThPolitics
of Decolonization (New York,F. A. Praeger,1962),pp. rra,
1~0,122 and 127-129.
7. Buell, R. L., The Native Problemin Afri(New York, 1926),
Vol. 1,pp788-789.
8. Cameron, J., The African Revolzltion (196r), pp.231 and
233-234,
g. Carter, G. M.(Ed.),African One-PartyStates (1962p).,450.
IO. Carter, G. M., (Ed.), Five African States: Responses to
Diversity (London and Dunmow, 1963), pp 321, 323,324,
332-333and 338-339.436 SOUTH WEST AFRICA
II. Carter, G. M., Independence for Africa (London, 1961).
pp. 8and 138.
12. Carter, G. M. and ~rodn, W. O., ~vanSition in Africa .1.-8.,
PP. 9-59.
13.Callard, K., Pakistan: A PoliticalSterdy r957), pp.233, 236.
14. Cowan, L. C., Local Government in est Africa (1959).
pp. 168 and r70-171.
15. Duffy, J. and Nanners, K. A. (~ds.), Africa Sfieiks (1g61),
pp. 28 and 128.
16. Elias, T. O.,Government and Politicsin Africa (1g63),pp. 60,
61 and 64.
17. Franck, T. M.,Race and Nationalism: The Struggle for Power
in Rhodesia-Nyasaland (1960p )p,.2, 62, 193-194,236-247,
256-257 and 263.
18. Goldschmidt, W. (Ed.), The UnitedStatesandAfrica (London,
Frederick A. Praeger, 1963),p. 64.
19. Griffith, J. A. G., Henderçon, J., Usborne, AT.and Wood,
D., ColouredImmigrants inBritain (rg60), pp. 21, 30, 108,
145, 173 and 174.
20. Hodgkin, T.,NationalisminColonialAfvica(1956) ,pp. 159-190.
21. Hughes, A. J., East-Africa: The Search for Unity (r963),
pp. 123, 131-132and 144.
22. Huxle,r, E. and Perham, M., Race alad PolztzcsZPZKenya
(1946):pp. 252-253.
23. Kimbie, G.H. T..Tvo$ical Africa (196o),Vol. II, pp. 242-243.
231~). Kingsbury, R. C.,An Atlas ofMiddle EasternA8airs (1963).
P. 58.
24. Kitchen, H. (Ed.), A Ha~dbookof African flairs (1964),
p.158.
25. Lomax, L. E., The Reluctant African (New York, 1960).
pp. 70 and 82-84.
z6. Lord Altrincham, Kenya's Ofifiortunity: Mernories, Hopes
and Ideas (London, 1955), p. 59.
27. Lord Hailey, An Africas Suis'ey: Revised 1956 (1957).
28. Macadam 1. (Ed.), The Annual Register of World Events:
A Review of the Year 1963 (London, 1964); pp. 110-112,
128-129.
29. Mackenzie, W. J. M. and Robinson, K., Five Electio~s in
Africa (1960);pp. 95,484 and 485.
30. Mair, L. P., Native Policiesin Ajrica (1936); p.181,
31.Mansell, G., Tragedyin Algeria, Institute of Race Relations
(London, 1961),pp. 30-32.
32. Mellor, A., Idia since ~artition (1g5r), pp. r, .8, 11-12, 26,
37-38 and 45.
33. Munger, E. S., Africnn Fieid ~eport; ,(rg5z-rg6~), Part 1,
34. Oduho,0-J.1.and Deng; W., The ~;oblem of ~oùthernSzcdatt
(1963),pp. 1-3 and 28-29.
35. .Panikkar, K. M.; Revolufiofi in Africa,. (London, 1961),
.. pp. 17-18and 79-80. .
. 36. Post, K. W. J., The Nigcriarr~ederal Elcctionof~G.5~(1963),
pp. 13 and 14. Li , . REJOINIIER OF SOUTH AFRICA 437
37. Sampson, A., CommonSense About Africa, Cornmon Sense
Series No. 3 (Gollancz, London, 1g6o), p. 33.
..38. Segal, A., Massacrein Rwanda (1964)~pp. 3,4,7-9, IO,II, 13,
. 14-15>16,18and 19.
.39. Spyridakis, C., A Brief Hislory of Cy rus (1964). pp. 66-67.
40. Steinberg;S. H. (Ed.), Statesman's 4 ear-Book 1955, p. 341.
41. Steinberg, S. H. (Ed.), Statesman's Yenr-Book 1963, pp.513,
IO# and 1437. -
42. Welensky, Sir Roy, Welensky's qooo Days (1964)~pp. 98-99,
a 114-115, 118-119, 121-123, 127-128,308-309 and 324.
B. TITLES
I. Britannica Book of the Year 1962- (London': Encyclopedia
Britannica, Ltd., 1962),p. 551:
2. The Eztropa Yeur Book 1963 (London: Europa Publications
. . Limited), Vol. 1, pp. 374-375.
'3. KeesinglsContemflovaryArchives, I to 8 June 1963,p. 19449;
7 to 14Dec. 1963, p. 19778; 26 Dec. 1963 to 4 Jan. 1964,
p. 19818; 14 to ar Mar. 1964,pp.19951 and 19952and rg to
22 Aug.1964,p. 20236.
4. An Almaîzack: For the Year of Our Lord 1964. Established
1868by Joseph Whitaker (rg63), p. 926.
VIII. Articles
A. AUTHO~ ASND TITLES
;. Abernethy, D. B., "Nigeria 'cieates a New Region", Africa
Report (Mar. 1964), pp. 8-10..
2. Apter, D. E., "The Role of Traditionalism in the Political
Rlodernization of Ghana and Uganda", World Politics,
: Vol. XIII, .No. I (Oct. 1960), p:65.
3. Ashford; .D. E., "The Last Revolution: Community and
- .#..,Nation", The Annals of the Ame~ican Academy of Political
and SocialScience,Vol. 3j4 (July 1964),p. 45-
-4. Bretton, H. L., "Political Problerns of Poly-Ethnic Societies
. ',.'in \Vest Africaf', address delivered at the Fiftlc World
Con~ressof the International L'oliticalScience Association,
. Pafk (26-30sep. 19611,pp. 5,15.
5. Cox, I., "Tension in Tanganyika", h'ew Ajrica, Apr. 1964,
pp. 12-14.
' 6. Deakiri, .N., "Residential Segregation in Britain : A Com-
.. parative Note". Race, Vol. VI, Ko. I (July 1964)~pp. 18, 19.
. . " 7. Gjasi-Twurn; K.. "West Africa's Prospects for Demo-
. . . cratic Rule"; 'Africa-Special .Report, June 1959, p. 12.
. 8. Hutchinson, E. C., "American Aid to A.fricaH, The Annals
of.the'American' Academy o/ 'Polilical ,ad Social Science,
Vol.354 (July 1964)~p. 28. ' . '
g. Kelly, E. F., "Preventing a .Holocaust", Cyprus Bulletin,
I /'
IO. Kenuing,Y964J., "Nigeria's Politieke Problemen", Afrika-
. Maandblad van hetAfrika-lnstitaut (Dec. 1962),p. 427.
...-. . II. Kilson, M. L., "Authoritarian and Single-Party Tendencies
::.in African Politics"., WorEd.Politics (Princeton, Jan. 1963,
P 275.438 SOUTH WEST AFRICA
12.Lemarchand, René, American Political Science Reviezu
(June 19621 PP.404-405.
13. Makuei, L.D., "Southern Sudan, a test case in afro-arab
cooperation", New Africa, Apr1964 ,p.II and 12.
14. Mazrui, Ali Al'arnin, "Edmund Burke and ReAections othe
Revolution in the Congo", ComparativeStudiein Society and
History (Jan .963) ,. 124.
15.McAllister, B., "Tribal Challenge in the New Africa",
African World (Sep.1963) p.6.
16. Ogunsheyo, A., "Nigeria's Political Prospects"quoted in
B.ulletin of Ahfrica I?astituta,V1,.No. 13, ISep. 1961,
pp. 4-5,from an article published in Ibadan, the Journal of
the University College of Ibadan.
17.Osinowo, T., "Essentialsof African Unity", New Africa
(Apr.1964) pp.9-10.
18.Richmond, A. H.. "Recent Research on Racial ReIations:
Britain", Inter~tatiogtalSocial ScienceBulletinX (1958).
Part 1,pp. 361and 363.
19.Rivkin, A.,"The Politics of Nation-Building: Problems and
Preconditions",Journal of Inter~~ationalAoairs, VolXVI,
No. 2,pp. 138and 139.
zo.Rotberg, R.,"The Political Outlook in Zanzibar", Afvica
Report, Oct.1961p,. 5.
21. Rothchild, D. S., "The Poiitics of African Separatism".
Journal of International Agairs (Sprin1961)p,p. 18,25-26
and 58.
22.Sadikot, R.,"Equal Rights for Asians", New Africa, Vol5,
No. 4 (London, Apr. 1963),p.12.
23. ShilsE.,"The Intellectuals in the Political Development of
the New States", World Politics (Apr.1960) pp. 353-354.
24.Sutton, F. X.,"Authority and Authoritarianism in the New
Africa", Journal of Inlcrnational Agairs (Spring 1961),
pp.15-16,
B. TITLES
1."After Terrorism, Peace for the Cameroun?", Africa 1960,
6 May 1960.
2."Commentary by Onlooker", African WorW (July 1963),
P. 7.
3. The Congo", Africa Institute Bulletin,Vol. 11,Xo. 17
(1Oct.1962) pp. 496-503.
4."Consolidation of the Dictatorship of Dr. Nkrumah in
Ghana", Africa Institute B~lletifiVol. 1,No. 17 (I Nov.
1g61)p,p.IO, IIand 13.
5."Exodus of Europeans", Ajrica Institute Bulletin, VoII,
No. 17 (1 Oct.1962) p,.503.
6. "Ghana", Africa Digest(Feb .964)p ,.117.
7. "Ghana", The Atlantic Reporton the World Today, Atlantic
(Mayr964),P. 28.
8."Ghana Extends Preventive Detention", West Africa,
No. 2423(9 NOV. 1963) p.1275.
9. "Ghana: Nasionalisering van'n Nuusblad", Africaïnstidzste
Bulletin(INov. 1g62) p,.548. RE JOINDER OF SOUTH AFRICA 439
IO. "Kenya", Africa Digest (Oct. 1962), pp. 52-53 and (Aug.
19631,p. 11.
II. "Nigeria's Population Explosion", WestAfs-ica,29 Feb. 1964,
P 226.
12. *Nkrumah Tightens the Reins", Senior Scholaslic, Vol. 84,
No. 8, 20 Mar. 1964, p. 34.
13. "The Opposition in Tropical Africa", Bulletin of the Inter-
lzatiojzalComnzissiolzofJuristsNo. 14, Oct. 1962,p. 5.
14. "Race Trouble in Birmingham, England, Too", U.S. News
and WorldReport, Vol.LVI, No. 12(23Mar.1964),pp. 102-104.
15. i'Revolt in the Sudan", Amevico, 14. Dec. 1963.p. 758.
16. "Rwanda: The Tutsis Rrood", The Ec~fitzomist,8 Mar. 1964,
PP.1197-1193.
17. Secessionist Southern Sudan", Africa 1963, 18 Jan. 1963,
PP. 6-7.
18. Soedan :Einde van die MilitCre Diktatuur", Africa Institute
J;'tdleti1,'01IV, XO. 12(nec. 1964),p. 334.
19. "Somali Republic", Africa Digest(Oct. 1962),p. 57.
20. "Sudan", Africa Digest.Vol. XI, No. 3, Dec. 1963,p. 74.
21. "Sudan : Southern Strife", Quarterly Econolnic Review,
June 1964.p. ro.
22. "When Your Face is the Wrong CoIour", 20th Century,
Vol. 172,NO. 1017 (Spring 19631,pp 38-39.
23. "Zanzibar", Africa Digest, JulyIAug. 1958
24. "Zanzibar after the Coup", Africa Digest, 16 Mar. 1964,
141.
25. 'ianzibar7', Commnweallh Stniey, 21 Jan. 1964. pp. 72-73.
26. "Zanzibar-Life Returning to Normal", Africa South of the
S~hara, 23 Jan. 1964,p. 16.
IX. Newspapers andPeriodicals
I. The Atlalztic Report,Apr. 1964, p. 14.
2. The Daily Herald, r May 1963,29 June 1964.
3. Daily Telegraph,31 May, I July 1963; 2June, 30 June, 24 Aug.
and 28 Oct. 1964.
4. TheGuardian, 2Oct. 1963.
5. Look, 2 June 1964, p. 37.
6. The ManchesterGuardian, 21 Jan. and 28 May 1964.
7. National Reuiew,18 Feb. 1964.
8. Neue ZfircherZeilzrng (Evening Edition),No. 4676,3 NOV1 . 964.
9. NewDaily, 23Apr. 1964.
IO. Newsweek, Vol. LXIV, No. 16, 19 Oct. 1964.p. 33.
11. The New York Times, 25 Mar., 2 Aug. and 5Aug. 1964.
12. TheObserver, 21 july 1957.
13.The PretoriaNews, 7 Dec. 1964.
14. Rand Daily Mail, 25 Aug. 1960; 11 Feb., 23 Apr., 24 July and
14 Dec. 1964.
15, Rhodesia Hevald,8May1964.
16. The Satuvday EvenilzgPost, Vol. 234, No 7, 18 Feb. 1961.
17. The Star, 29 May, 4 June, 25 June, 2 July, 3 July, 11 July,
26 July, 27 Aug., 30 Aug., 4 Sep. 1962; 16 Joly, 30 Sep.,30 Dec.
1963; 3 June, 17Jnly, 20 July, I Oct., 9 Oct.,II Nov., 17Nov.,
23 Xov. and 30 Nov. 1964.#O SOUTH WEST AFRICA
18.The Sunday Times (Johannesburg), 8and 15Nov. and 6 Dec.
1964.
19. Tlte Times, 18 Apr. 1962; rj Apr.,24 Sep. and r Oct. 1963;
22 Jan.,28Alayand 17Sep. 1964.
20. DieTransvaEer,27 JulyI964. a
21. The Tvibzt~e23Oct. 1964.
22. TheSzcndayTimes (London), 18 Aug. 1963.
23. llie Vaderland,6Oct. 1964,
24. WestAfrica, 8Feb. 1964.
25. TYindhoekAdverliser8 June 1964.
X. Other
Africa Institutehlapsand Statistics, NoI(July 1962),p.II.
CHAPTER IV
Republic ofSouthaAfrica
ReportofCommission
R.P. No.12/1~6 ~eport oComwissimr of EnqzcirintoSouth
, WestAfrica Agairs, 1962-1963.
CHAPTER V . ,
1. Leagueof Nations
Minttfes of the Permanent Madates Commission, Sess. II, p. 34;
VI, p. 126; IX, p..140; X;p. 95; XI, pp. 61-62; XIV, p117;
XIX, p.131; XXI, p. 41;XXVI, p. 15.
II. UnitedNations ., -.
A. GEKERA ASSEMBLY
G.A., O.R., Twelfth Sess., SuppE.Xo15 (A/~~L+~ )I,Report of
IheCommitteeon Information from,Non-Self-GoverningTerri-
toriep. Ij (para. zz}. '
, B. Eco~oziircAND SOCIAL COUNCIL
ECONOM C OCMMISSIO FOR AFRICA ,
I.Doc. E/CN.r4/168, Annual .Report of the Economic Com-
mission for Africatuthe Economic and SocialCouncilof ifs
Fowth Sessiooa, ara.265. :
2.Iloc. E/CN.I~/INR/I]R~V. 1, Industrial Crowt'in Africa,
PP- 76-77' . '
III. Unionof South Africaand Republic of South frica a.
A. PARLIAMENTA DREBATES . , ,.
House of Assembly . ..
Vol.91 (I 56). Col. 5297;Vol. 101 (1959)~Col.6021; Vol. 2
(1962),2OIS.S7-59; Vol. 3(I 62),Col. 5264:Vol. 5 (1963).
Cols.225, 228-230;Vol.7 (1983).Col.P930; Weekly Edition
No. 15(4 hIay to8 lay r964), Cols. 5452,54535640,5641.
"' 5642.
, B. REPORTS OF COMMIÇSIOKS
U.G.25-1948 ,efiortoftheNative LawsCommission 1946-1948,
p.19,para. 28. REJOINDER OF SOUTH AFRICA 44I
U.G. 61-1955, Summary of the Report of the Commission for
the Socio-Economic Develofiment of the Bantrt Areas within
the Union of South Afvica, pp. IO, 41-42,.103-105 11,4, 117,
178-179.
R.P. 12-1964, Refiort oftheCommission ofEnquiry into South
West Africa Apairs 1962-1963, pp.3, 41, 81-107, 123-205,
219-263,267-377,315-489.533, 535, 537, 539,541, 543. 545,
547.549 and 551.
C. LECTSLATION
Statutes
Act No. 44 of 1950, Supp~essiolzof Communism Act, 1950,
in Stalutes othe Union of South Africa, 19jo.,
ActNo.7G of1962G ,enerulLaw Amendment Act, 1963, iri
SfatutesoftheRepublicofSottthAfrica, Part II.
Act No. 37 of 1963, GelteralLaw Amendment Act, r963, in
StatutesO/ theRefiublicof South Africa, 1963, Part1.
ACt No. 48 of 1963, l'ranskei Constitution Act, 1963, First
Schedule, in Statutes of the Republic of South Africa, 1963,
Part 1.
1). OTHEROFFICIAL PUBLICATIONS
I. Documents Relating To The Considerution By The United
Nations GeneralAssembly Of The Statement By The Goi~ern-
ment Of The Union O/ South Ajrictr On The Oz~tcomeOf
Their Consultatiolts With The Peoples Of South West Africa
As To The Future Status Of The Mandated TerritoryAnd The
Implementation To Be Given To The Wishes Thus Expressed,
P. 33.
2. W.P. 3-'59, Memorandum explaining the Background and
ObjectsofthePromotionof Bantz~Self-Goveriemmt Bil of 1959,
PP 4-5.
IV. Transkei
I. Debatesof the Transkei Legislative Assembly, 2nd Session, First
Assembly, 5 May to rgJune 1964,p.67.
2. Transkeian Territorial Authority, Proceedings and Reports of
Select Cornmitteesut the Session of 1962: Annual Reports and
Accounts for 1961and Estimates of Revenue and Expenditure
for 1962-1963(i962), p. lviii.
V. United Kingdom
O Basutoland, Becht~analandProtectorate'and Swaziland, Report of
: an Economic Survey Mission (London, H.M.S.O., 1g60),p. 12.
VI. United States of Arnerica
U.S. Department,of Commerce,"Basic Data on the Economy of
' Liberia", 1959,p. 4.
VI!. Books and Pamphlets
A. AUTHOR AND TITLES
I. Allott, A. N., Judicial alrd Legal System in Africa (1962).
pp. 83-84. . .
.z.,Berg,E. lJ.,inThe UnitedStates and Africa, Editor: Walter
Goldschmidt (revised edition, F. A. Praeger, New York,
London, 1963),p. 129. . ..HZ SOUTH WEST AFRICA
3. Epstein,A. L., Politics in an Urban African Cowîmrtnity
: (London: Manchester University Press), p228.
4. Fraenkel,M.. Tribe and Class inMolarovia (1964) (Oxford:
The Alden Press Ltd.),pp. 94-95.
5. Giniewski,P., Bantustans: A Trek towards the Future
(Cape Town: Human & Rousseau, 1g61), pp. 120-121 and
148-151.
6. Goldschmidt, W. (Ed.), "7'he United States and Africa"
(New York and London, 1963) pp.21 and 50.
7. Halice, W. A.. Ajvican Economic Devdopment (1994,
8. Hill,C. R., Hanfustans: The Fragmentation of South
Africa (Cape Town: Human & Rousseau, 1g54) p,p 71-72,
g. Kimble, G. H. T., Tropical Africa, Vol. II (New York,
IO. Lipskv,G.5A., Ethiopia:Its People, Its SocietyItsCulture
(New Haven : Hraf Press1962) pp.34,37-38,170.
Ir. Luther, E. W., Ethiopia Today (1958 (California: Stanford
University Press, Stanford; London: Oxford University
Press),. 42.
12. Mason, P.,An Essay onRacial Tension (1954p ).~133-
13. Munger, E. S., Ajriclan Field Reports (1952-196 C ape
Town: C.Struik),p.119.
14. Neame, L. E., White Man's Africa (1953) p~. 43-46.
B. TITLEÇ
I.Information Please AlwzanacAtlas and Yearbook1964 (New
York: Simon and Schuster),pp. 615,67 6nd 745-747.
2. South African Institute of Race RelationA Survey of Race
Relations in South Africa 1963 (1964) (compiled by Muriei
Horrell)p. 96.
VIII. Articles
A. AUTHOR SND TITLES
I. Carnell,F. G., "PoliticalImplications of Federalism in
New States", in Federalismand EconornicGrowthin Under-
developedCouwtries.ASymposium (London, George Allen &
Unwin Ltd., 1g61)p,. 59.
2. Fair,T. J. D.and Green, L. P.,"Development of the Bantu
Homeiands", Optima. Vol. 12,No. I (Mar. 1962)p ,p.7-19.
3. Herskovits, M. J., "The Role of Culture-Pattern in the
African Acculturative Experience",in "Présence Africaine"
(Africa'Own Literary Rcview), Vols. 6/7, No34/35p, . 14.
4. McAIlister,B., "Tribal Challenge in the New Africa: Re-
sistanceto Change Among Primitive Communities", African
Wovld (Sep. 1gf33),6.
5. Shils,E., "The Intellectuals in the Political Development
of the new States", in World Politics, Vol. XII, NO. 3
(AP~.1960) P.349.
6. Turnbull, C.M.,"Tribaliçm and Social Evolution in Africa",
The Annals of the American Academy of Politicaand Social
Science,Vol. 354 (Philadelphia:James C. Charlesworth)
(July 1964)pp. 22,23and 30. REJOINWER OF SOUTH AFRICA 443
B. TITLES
"Hatching Dr. Azikiwe's Egg", in West Africa, 30 May 1964
(London: Odhams Press Ltd.), p. 593.
19. Petitions
Pefition dothe HonorableDY.H. F. Verwoerddated 24 October1964
#romtheChiefsand Headmen of Ovamboland.
CHAPTER VI
1.Union of SouthAfrica and Republic ofSouth Africa
A. REPORTS OF COMMISSIONS
R.P. 51/1963, RePort of the Commission a$ ointed to inqtlire
into the Eventsolzthe 20th tS S ~ hTovemer, 1962, at Paarl
andtheCauseswhichgaverisstherelo.
B. LEGISLATION
Act No. 49 of 1964,The ColouredPersonsRepresentativeCouncil
Act, 1964.
C.. CËNSUS AND STATISTICS
U.G. 62-1954, Union of South Africa: Population Cefisus,8th
May, 1951, Vol. III: Religions of the White PoPzclaiionof the
Union of South Africa, togetherwith 1946 Census FZgwresfor
Al1Racesof thePo pulution, p. 66.
U.G. 38-1959, Union of South Africa: Po ulation Ceasus,8th
May, 1951, VolztmeVII: Marital Statzcs,de'igions and Barth
placesof Coloureds,Asiatics and Nativep. 76.
Republic of South Africa: Bureau of Statistics, Population
Census, 1960:Salnple Tabulation, No. 6-Religion Al1 Races,
pp.2, 16 and 29.
II. Transkei
x.Transkeian Territorial Autbority, Proceedings altdRe$orts of
Select Cornmitleesat the Session of 1961: Annual Reports and
Accounts for 1960 and Estimates of Revenue and Expenditure
for 1961-1962 (Umtata: 1g61), p. 103.
2. Transkeian Territorial Authoritp: Proceedings and Reports of
Select Committeesat the Session of 1959: Annual Reports and
Accounts for 1958 and Estimates ofRevenue and Expcnditure
for1959-1960(Umtata: 1g59),pp. 30-31.
3. Transkei Government: Debates of the Transkei Legislaiive
Assembly, Second Session-First Assembly, 5th May to 19th
June, 1964,pp. 13and 33.
III. Books and Pamphlets
A. AUTHORS AND TITLES
1.Bate, H. Maclear, South Africa without Prejztdice(London:
Werner Laurie, 1956),pp. 122-123.
2. Carter, G. M., Five African States: Responses to Diversity
(London :Pall Mal1Press,1963),p. 533.
3. Cawood, L., The C?z~rcIzstzdRaceRelations irSouth Ajrica
(Johannesburg: South African Institute of Race Relations,
1964).pp 5and 40.444. SOUTH WEST AFRICA
4. Cronje, G., Regverdige Rasse-apartheid (Stellenbosch: Die
Christen-Studenteverenigingmaatskappy van Suid-Afrika,
19471,PP.155-156.
5. Du Preez, A. B., Imside theSouth African Crucible {Kaapstad
-Pretoria: H.A.U.M., 1959),p. 221.
' ' ' 6. Du Plessis, H., 'n Nawe Beurbraak (Potchefstroorn: Pro-
Kege-Pers Beperk, rg63), pp. 26, 29 and 30.
7. Geyser, A. S. etal.D,tlaycd Actim: An Ecurnenical ktness
from the Afrikaans-speaking Church (Pretoria: Craft Press),
p. 68.
8. Hellmann, E. (Ed.), Handbook on Race Relations in South
Ajrica (London: Oxford University Press, 1949)~pp. 526-527
and 653-655.
g. Holloway, J. E., A+cartheid-A Challenge (Johannesburg :
Afrikaanse Pers-Boekhandel, r964), pp. 28, 29 and 30.
ro. Marais, B., The two jaces O/ Africa (Pietermaritzburg:
Shuter and Shooter, 1964),pp. 34 and 60-61.
11. Segal, R., Political Africa: A Who's Who of Personalities
and Parties (London: Stevens and Sons Lirnited, 1961).
P- 69.
rz. Steward, A., The Challenge of Change (Cape Town: Howard
Timmins, 1g62), pp. 23-24,43-44,48,73,79 and 80.
rj. Van der Merwe, EI. J. J. M., Segregeer oj Sterf: 'n Diep-
dringende Religting van ons Blank- Nie-blank-Verhoudinge
' teen die Agtergrondsituasie van Kontak, Integrasie enjof
Segregasie van die Kleurgroepe (Johannesburg :Afrikaanse
Pers-Boekhandel, 1961), p. 149.
14, Visser 't Hooft, W. A., Visitto the Soztth Afrz'canChurches:
A report to the Central Committee of the World Council
of Churches on a visit to the South African Churches in
April and May 1952 (NewYork :World Council of Churches),
pp. 14-17 and 18.
B. TITLES
I. Cof6esloe Conszclialion: The Report of the Conçultation
among South African filember Churches of the World
Council of Cliurches, 7-14 December 1960 at Cottesloe,
Johannesburg, pp. 23-24>73, 79, 80, 81-82.
2. Die Natztrel in die Szcid-Afrikaanse Landboi: Referate ge-
lewer op die vyfde Jaarvergadering van die Suid-Afrikaanse
Buro vir Rasse-Aangeleenthede (SABRA) January 1954,
p.10s.
3. Go Forwavd in Faith: A statement of the fundamental
beliefs and attitudes of the South African Institute ofRace
Relations. (Pamphlet issued by the South African Institute
ofRace Relations.)
4. Handelinge (Acta) van die Vyf-en-Twintigste Sirtode van die
Ned. Geref. KerR vaw Transvaal gehou QePretoria op 5 April
1961 en volgendedue, pp. 350,382-383.
5, Handelinge van die Vier-en-Dertigste Vergadering van die
NoogeerwaavdeSifiode van die Nederduitse GereformeerdeKerk
in Suid-Alrika: Gehou in Kaapstad op Donderdag, 19
Oktober 1961 en volgcnde dae, pp. 50-51. REJOINDER OF SOUTH AFRICA 445
6. Indian South Africans (Pretoria: Printed by Dagbreek
(H & G) on behalf of the Government Printer), p. 38.
7. Integvatiofi ouSeParate Dwelopment ?: Issued by the South
African Bureau of Racial Affairs (SABRA) (SteIlenbosch,
I~SS), pp. 18and 30.
8. Journal oj Racial Afaivs, Vol. II, No. 4, July 1960 (Stellen-
bosch: SABRA). p. 188.
g. Safeguarding Your Future: The Principles and Policies of the
Progressive Party of South Africa (Johannesburg: M. K.
Mitchell), pp.5-13.
ro. South .African Bureau of Racial Afairs {SABRAI : Aims,
Favourable Reception, etc.
II. South Africalz Insfitute of Race Relations (Inc:34thAnnual
Report 1962-1963, pp. 17and 19.
12.State of Soath Africa: Econamic, Financial and Statistical
Year-Book for the Republic of South Africa, 1962 (johan-
nesburg: Da Gama Publications Ltd.), pp. 43 and 46.
13. "Uit Een Bloed ...": 'n Rapport aan en 'n besluit van Die
AIgemene Sinode van die Gerefomeerde Kerk in Suid-
Afrika oor Rasseverhoudinge (Potchefstroom: Pro Rege-
Pers Beperk, 1961), p74.
14. Volkskongress oor die Toekoms van die Bantoe: Referate en
Besluite: Volkskongres, Bloemfontein, 28-30 Junie 1956,
PP. 137-138.
IV. Articles
A. AUTHORS AND TITLES
r.Du Plessis, L. J., "The Case in Favour of Apartheid", in
Science and Freedom, No. ro, February 1958 (Apartheid
and the Worid's Universities: Report on a Meeting held in
London, November, 1957) pp 32-40,at pp. 37-38.
2. Makapan, O. M., "Apartheid As I See Tt", South Airica,
The Road Ahead, Spottiswoode, H. (Ed.) (Cape Town:
Howard Tirnrnins,1g60), pp. 120-122, at pp. 121-122.
3. Manning, C. A. W., "South Africa and the World: In
Defense of Apartheid", ForeignAgairs :An American Quart-
erly Keview, Vol.43,No. 1 (Oct.1964),pp. 135-149,at p. 148.
4. Olivier,N. J. J., "Apartheid-A Slogan or a Solution",
Journal ofInternational Agairs, Vol.VII, No. z (1953)~p. 141.
5. Peacey, B. W., "Race Relations in South Africa: Principles
and Poiicies", Journal O/ Racial Agairs, Vol. 4, NO. 3
(Apr. 1953))pp. 1-17, at pp.12 and 16.
6. Rodda, P., "The Africanists Cut Loose", in Ajrica South,
Vol. 3, No.4,July-Sep. 1959, pp. 25 and 26.
7. Van Weerden, IV., "Why Bantu States?", Optima, Vol. 12,
No. 2 (June 1962), pp. 59-65, at pp.59and 64-65.
B. TITLES
r. "Message of Paramount Chief to Zulus". Rantu, NO. 12
@ec. 19.59)~pp.12-13.
V. Newspapers and Periodicals
I. TheStar (Johannesburg), 25 Nov. 1959.
2. The Star (Johannesburg), 27 July 1964.44 SOUTH WEST AFRICA
3. TheStar (Johannesburg), 31 July 1964.
4. TheStar (Johannesburg), 21 Sep.1964.
5.The Star (Johannesburg), 22 Sep. 1964.
6. TheStar (Johannesburg), 15Oct. 1964.
7. TheStar (Johannesburg), 3 Nov. 1964.
8. Die Transvaler(Johannesburg), 17May1963.
g.Die Transvaler (Johannesburg), 8 Oct.1964.
IO.Die Traasvaler (Johannesburg), 12Nov. 1964.
II.The CapeTimes (Cape Town), 19 Feb. 1964.
12.The CapeTimes (Cape Town), 29 Apr. 1964.
13. Die Banier(Cape Town, 2nd edit.)Sep. 1964.
14.Die Banier (CapeTown, 1st edit.), Oct.1964.
15.South Africa Today (newsletter issued by the South African
Information Adviser,Ottawa), JI Dec. 1957, p.IO.
16.Sunday Times (Johannesburg), 7Apr. 1963.
17. Daily News (Durban), II Jan. 1964.
18. Die Bwg busse.nProtestant en Katoliek,-aar. - . 13, No. 4,
Apr- 1964,pp. 4-5.
19. The Graphtc(Durban), 21 Aug.1964.
20.SouthAjrica.~Digest,18 Sep. 1964.
21. DagbreekenSoladagnuus (Johannesburg), 20 Sep.1964.
22. Die Burger,20 Oct. 1-.4.
VI. ~n~ublishedSources
Sobukwe, R., Unpublished manuscript, 1960, pp. 1-8 ,t pp. 3,5
and 6.
Landman, Rev. W.A., Address, pp. 11-13.
Golding, G.J., President of the Coloured Peoples National Union:
Unpublished Statement dated 12Nov. 1964.
Rivonia Judgment in the Supreme Court of South Africa (Trans-
vaal Provincial Division), Unpublished, pp19 and 23-24.
VII. Letters
Booke~Lakey toMayor and TownCouncilof Aberdeen.
CHAPTER VI1
1. United Nations
A. GENERA LSSEMRLY
Plenary Meetings U.N. Roc. A/PV. 1215 (25 Sep. 1963)~
Eighteenth Session,GeneralAssembly, Provisional Verbatim
Record of the 1215th PIenary Meeting, pp. 23 and 26.
U.N. Doc. A/PV. 1236 (IO Oct. 1963), Eighteenth Session,
GeneralAssernbly,Provisional Verbatim Record of the1236th
Plenary Meeting, p.II. .
B. SECURITC YOUNCIL
U.N. Doc. SI5723 (28 May 1964). U.N. Doc. 515658 (20 Apr.
19641,pp. Iand 18.
B. Books and Pamphlets
-4. AUTHORS 4ND TITLES
I.Hovet, T. (Jr.), Afnca and the United Nations (London :
Faber and Faber, 1963),p. 219. REJOINDER OF SOUTH AFRlCA 447
2. Van Eeden, G., Die T7zwrrBrad Nader (Johannesburg:
Nasionale Boekhandel Beperk, 1964) pp. 140-141.
3. Jahn, H. E., Vom Ka+ Nach Kairo: Afrikas Leg In die
Weltpolitik (München: Gunter Olzog Verlag, 1963),p. 31.
4. Gijmink, G. J. H., Zd zag ik ZuidAfrika!, Reisdagboek
van G.J. H. Gijmink,Herv. Pred. te Rotterdam-Grotekerk-
wijkgemeente, Voorzitter N.Z.A.W., under Johannesburg,
13April(1964).'
B. TITLES
Acts of the Reformed Ecumenical Synod 1963, Grand Rapids,
Michigan,U.S.A. (1963),p.225.
III. Articles
A. AUTHOR SND TITLES
r. dJArchimbaud,D., "l'Afrique du Sud devant l'opinion",
La RevueFraqaise, No. 139(Apr. 1962) p,. 15-19,at p15.
2. Reilby, L., "Living with South Africa", TheDaily Telegraph
(London),24 Nov. 1964.
3. Buckley, W. F. (Jr.), "South African Fortnight", National
Review,15Jan. 1963,pp. 17-23at p.23.
4. Den Hartog, A. Al.,"Indmkken van een R.K. over Zuid-
Afrika", NZAW-Kroniek, 1st Year, No. I (15Sep.I 64).
5. Gijmink, G. J. H., "Kerk en Zending in de Repu liek van
Zuid-Afrika", De RotterdamseKerkbode,g Mar. 1963.
6, Hoogendijk, F. A., "De verdachtmaking en de werkelijk-
heid", Elseviers Weekblad(Amsterdam)4 Apr. 1964,
7. Huxley, E., "The face beliind the mask: Some thougtits on
revolutions", Optima,Vol. 14, No.2 (June 1964),pp. 59-67,
at pp. 63-64.
8. Lamberty, M., "Wat betekent pluralisme. (II)?" De Vlaamse
Gids,No. 12 (1963)~pp. 798-812,at pp. 8x1-812.
g. Manning, C. A. W., "South Africa and the World: In
Defense of Apartheid", F0reig.nAflairs, Vol. 43, No. I
(Oct. 1g64),pp. 135-136 and 137.
IO. Rlolnar, T., "First Step in the Transkei", National Revlm,
25Feb. 1964,pp. 155-156.
rr. Shaw, S. N., "The Truth about South Africa", U.S. Nms
and World Re#od, 19Nov.1962, p.114.
12. Smith, A., "The Tnith About South Africa", The PeoPles
Magazine,Vol. 43,No. 10-12(Fourth Quarter 1964),p. 15.
13.Ropke, W., "Siidafrika: Versuch einer Wurdigung", Schwei-
zer Monatsh8fte,44th Year, No.2 (May 19641,pp. 97-112,at
pp. IO~-IO~,IO~.I~~,107and 109.
B. TITLE
"Africa's finest Hour", Sqbtlement witla 'Ghana Today' of
Jrtly zgth, 1964, Speech delivered by President Nkrumah at
the Conferenceof African Heads of State and Govemment
in Cairo on 1July 1964,pp. 4 and 5.
IV. Newspapers
r. La Quotidiefined'InformationsPolitiques,BconomiqzcstSociales,
Supplémentde 1"'Age~tcQe uotidienne"(Paris),July 1964,pp.4-5.448 SOUTH WEST AFRICA
2. TheStar (Johannesburg), 25Nov. 1964.
3. HaagschePost (Amsterdam), 8 June 1963.
4. Sultday Express (Johannesburg), 20 Sep. 1964.
5. TheTimes (Late London Edition), 17 June 1964.
6. De Telegruaf(Amsterdam), z Mar. 1963.
7. Sunday Times (Johannesburg), 30 Sep. 1962.
8,The Stav (Johannesburg), 25 June 1964.
g. TheTimes (London), 8Oct. 1963.
IO.TheTimes (London), 24Sep. 1963.
II.TheTimes(London), 21 Sep. 1963.
12.The YorkshirePost (Leeds), 16Jan. 1964.
13.Sunday Times (Johannesburg), IIOct. 1964.
14.The ATatal~Mercury(Durban),ro Oct. 1962.
CHAPTERS VIII, IX AKD X
1. Boaks and Pamphlets
AUTHOR AND '~ITLES
. I. Abraham, 11'E .., The Mid of Africn (London: Weidenfeld
and Nicolson, rgGz),p.IOO.
2. Clark, K. B., Pvejztdiceand Your Chiid (Boston: The Beacon
Press, 1955)PP. 19~44-45.47,49, 50, 52and 55.
3. Dunn, L. C. and L)obzhansky, Th., Heredzty,Race and Society
(New York: TlieNew American Library of World Literature,
Inc.,1959),pp. 14,s~-83,108 and 134.
4. Fairchild, H.Race andNationality (1947p ).4.
5. Hoebel, E. A., MafiiqzthePrimilive World (London : McGraw-
Hill Book Company, Inc., 1958) p..117.
6. Kluckhohn, C., llfirrov for Man: The Relation of Anthro-
pology to Modern Life (New York: RlcGraw-Hill Book
Company, Inc. 1949) p.p.124-125.
7. Leakey, L. S. 13.,The Yrogress aizd Euohdion of Man in
A frica (London:Oxford University Press), p.15.
S. Leiris,M., Race and Cctllure(Unesco: 1951).p. 16.
g. MacCrone, 1.D., Race Attitudes in South Africa (Johannes-
burg Witwatersrand University Press), p.249.
ro. MacDougall, W., The Groufi Mind (Cambridge University
Press,19201,p. 5.
II. Maclver, R. M., The U7eb of Government (New York: The
Macmillan Company, 1947) pp.428 and 429.
12. Morant, G.RI., TheSignificalzceof Racial Difl~rences(Unesco:
1952).PP.45 and 46.
13,Myrdal, G., An American Dilemma: The Negro Problem
and Modern Democracy (New York: Harper and Brothers
Publishers,1944) p.~699.
14. Rife, D. C.,Heredity and HumanNature {NewYork: Vantage
Press, 1959).pp. 218 and248.
15, The Race Co~zcefit:Result of an Inquiry (Unesco: xg51),
pp. 10-11, 12,21, 26,32,4954, 57, 58, 61, 62, 64, 82 and 83.
16.Young, D,, American Minority Peoples (New York: Harper
and Brothers Publishers, 19321p,. 586. REJOINDER OF SOUTH AFRICA 449
II. Articles
AUTHOR AND TITLES
. r. Biesheuvel, S.,."Race, Culture and Per~onality"~South African
Irtstitute of Race Relations (~g~g),pp. 4-5.
2. Biesheuvel, S., "The Study of African Ability", African Studies,
. Vol. II,No. 2 (june 1952),p. 55.
3. Cryns, A. G. J., "African Intelligence: A Critical Survey of
Cross-Cultural Intelligence Research in Africa South of the
Sahara", Journal of. Social Psychology, Vol. 57 (196z), pp.
292-293.
4. Diop, A., "American Society of African Culture", Pa?& African-
ism Reconsidered(1962), p.344.
5. Gregor, A. J.,"The Dynamics ofPrejudice", MankindQuarterly,
Vol. III, No. 2 (0ct.-Dec. 1962),pp. 80-82.
- 6. Gregor,A. J., "The Law,SocialScience,and School Segregation:
An Assessment". Western Reserve Law Review, Vol. 14, No. 4
(1963)~pp, 625-628.
7. Gregor, A. J., "LegaI Testimony and Scientific Evidence:
A Contrast", Mankind Quarterly,Vol..IV, No. z (1963),p. 108.
8. Gregor, A. J., "On the Nature of Prejudice", The Eugenics
' Review, Vol. LI1 (Apr. 1960-Jan. 1961). pp. 218, 219, 220 and
222.
g. Gregor, A. J., "The Biosocial Nature of Prejudice", Genzss,
vol. XVIII, BO. 1-4 (1962),pp. 13-14.
ro. Haldane, J. B. S., "Comments", Current Anthvo+ology (Oct.
1961),PP 322-323-
II. Ingle, J., "Commentç on the Teachings of Carleton Putnarn",
The Maakind Quarlerly,Vol. IV, No. I (1963), p.zg.
12. Lundberg, G. A., "Sorne Neglected Aspectç of the 'Minorities'
Problem", Modern Age (1958 )eprint inlThe Mankind Qztar-
terly, Vol. III, No. 4 (Apr.-June, 1963), pp212, 227.
13,Porteus,S. D.andGregor,A.J., "Studiesin InterculturalTesting",
-Perceptualand MotorSkilLs,Vol. 16, No. 3 (1963),p. 722.
14. Van den Haag, E., "Social Science Testimo~ly in the De-
segregation Cases-A Reply to Professor Clark", Villanova
Law Review,Vol.6 (1960).p. 69.
III, Newspapers
The Times (London),18Apr. 1962.
. .
CHAPTER XI
, .
1. United Nations
.' Secretariai
Defiartmentof Economicand SocialA8airs
Demografl/zicYearbookrg63 S$ecial Tofiic:Pofiulalion Ceasus
Statistics II, Fifteenth Tsçue (1964);pp, 311, 3x3and 317.
II. United Statesof America
+I. The Ëcomomic Silualionof Nesroes inthe United States (United
States Department of Labor, W. Willard Wirtz, Secretary;
Washington D.C.: U.S. 'Government Printing Office,Bulletin
5-3, Revised 1g6z) pp.i, r,'z,4-5,6 and g. .45O SOUTH WEST AFRICA
2.Civi Rigus '63: 1963Report of the United States Commission
on Civil Rights (Washington D.C.: US. Government Printing
96-101,114 and231.13, 14-15>16-26, 30,53. 63, 68. 73. 90, 95,
3. Proposed Amendmelsts to Constitertion: Propositions and Pro-
posed Laws together with Arguments-To be Submitted to the
Electors of the State of California at the General Election
Tuesday, Nov. 3,1964. (Compiledby A. C.Morrison, Legislative
CounseI. Distributecl by Frank RI.Jordan, Secretary of State.]
Part 1,p. 18and PartII,p. 13.
4. State of California, Department of Justice, Constitutional
Rights Section,Equal RightsundertheLam: Providing for Equal
Treatment for Al1Citizens Regardiess of Race, Religion, Color,
National Origin or Ancestry (Published by Stanley Mosk,
Attorney-Gcneral and Howard H. Jewel, Assistant Attorney-
Gcneral, 1964)~Key Laws: Fepa, Fair Housing Act, Civil
Code,Education Code, Penal Codeand Insurance Code.
5. 1961 United States Commissionon Ciuil Rights Report, 5Books,
(Washington D.C.: U.S. Government Printing Office),Book I
(Voting),pp. 2-5, 6,7-10) 12, 15-37, 73, 74,75, 76-78)79-100,
III, Irz, 136and 195-196; Book 2 (Education), pp. 5, 7-10.
15-37, 39-63. 65-115 and 173; Book 3 (Employment), pp. 1,
2-3,6-T~,I~,sI-26,108, 153,155 and 159-161;Book 4 (Housing),
pp 1, 2,16 and 144-145; Book 5 (Justice),pp. 29-41,43, #,
89,92, 95, 103,106, ~08115,116, 135,140-144and 157.
III. Books
A. AUTHOR SND TITLES
r. Allport, G. W., Thehralureof Prejudice (Cambridge, Massa-
chussetts: Addison-Wesley PciblishingCompany Inc., 1954))
PP. 472and 473.
2. Becker, 6. S., The Economicsof Discrimination (Chicago:
University of Chicago Press, 19j7), p. 123.
3. Berelson, B. and Steiner, G. A., Human Behavior: An
Inventory of Scientific Findings (New York: Harcourt,
Brace and World, Inc., 1964, pp. jI5.575 and 613-614.
4. Clark, D., The GhettoGame: Racial Confiicts in the City
LNewYork: Sheed and Ward, 1962).p. 43.
5. ressey, D. R. Vide Sutherland, E. H., iltfra.
6. Dean, J. P. Vide Suchman, E. A., iltfra.
7. Dean, J. P. anclRosen, A., A Martual of I.nfergrouRelations
(Chicago :The University of Chicago Press, 1955)~pp. 19,
21 and 88.
8. Frazier, E. F., The Negro ilt the United States (New York:
The Macmillan Company, 1957, Revised Edition), p. 689.
g. Gillin, J. L., CrimilaoEogyalzd PenoZogy(New York: D.
Appelton-Century Company Incorporated, 1945, Third
Edition), pp.199-zoo.
IO. Gillin, J. L., Social Pathology (New York: D. Appelton-
Century Company, Revised Edition, 1939)~pp 559-570and
620.
II. Grigg, C, Vide Killian, L., injra.
12.Killian, L. and Grigg,C., Racial Crisisifi AmericarLeader- REJOINDER OF SOUTH AFRlCA 451
ship in Conflict (New York: Prentice-Hd, Inc., Engle-
wood Cliffs,N.J., 19641,pp. 112-113,114,117, 128and 130,
13. RIacAdam, 1. (Ed.), The Annual Registe7of World Evenks:
A Review of the Year 1963 (London: Longmans, Green
and Co. Ltd.,1964) V,ol.205,pp. 181-182.
14. Myrdal, G., An American Dilemma: The Negro Problem
and Modern Democracy (New York: Harper and Brothers
Pubiishers, 1944), p. jz.
15. Rosen, A. Vide Dean, J. P., supra.
16.Putnam, C.,Raceand Reason iA Yankee View (Washington
D.C.: Public Affairs Press, 1g6r), p. 9.
17. Ryan, hl. W. Vide Williams, R. M.(Jr.), infra.
18. Saenger, G., TheSocial Psychologyof Preiudice: Achieving
Intercultural Understanding and Co-operation in a Derno-
cracy (New York: Harper and Brothers Publishers, 1953).
pp. 162 aiid 270.
19.Silberman, C. E., Crisis in Blnck and White (New York:
Random House, 1964),pp. 8,4r, 43, 289 and 290.
20. Suchman, E. A. etal., Desegregation:Some Propositions and
Research Suggestions (New York :Anti-Defamation League
ofB'iiai B'rith, 1958pp. 5and 57.
21. Sutherland, E. W., Princifllesof Criminology (New York:
J. B. Lippincott Company, Fifth Edition, 1g55),p147.
a 22. Tumin, M. hl., Desegregatiof s Resistance and Readiness
(Yrincetown: Princetown University Press, rggS), p. 84.
23. Vann FVoodward,C., TheStrangeCareer of Jim Crow (New
York: Oxford University Press,1957) pp~.171-172.
24. Walter, P. A. F. (Jr.), Race and Culture Relations(New
York: McGraw-Hill Book Company, Inc., First Edition,
195z), pp. 55,406,405,412,435 and 440.
25. Weyl, N., The Negro in Anterican Civilizatim (FVashington
11.C.:Public Affairs Press, 1g60),pp. 289,290, 307an308
26. Williams, R. M.(Jr.). Vide Suchmân, E. A., supra.
27. Williams, K. M. (Jr.), The RedwctionofIntergroufiTensions:
A Survey of Research on Problems of Ethnic, Racial and
Religious Group Relations (New York: Social Science
Research Council, Bulletin 57, 1947pp 73-74.
28. Williams, R.RI.(Jr.) and Ryan. 11\ZTS.C~OOiEnSTransition:
Community Experieiices in Desegregation (Chape1 Hill :
The University of North Carolina Press, 1954)~p. 247.
IV. Articles
A. AUTHOR SND TITLES
I. Bickel, A. M., "The Decade of School desegregation",
Colz~mbiaLaw Review, Vol. 64, No. z (Feb. 1964, pp. 193-
229,at p. 215.
2. Blumer, H., "Research on Racial Relations: United States
of America", InlernationnlSocial ScienceBulletin, Vol. X,
No- 3(1955P )433.
3. Clark, K. B. (Issue Author), "Desegregation: An Appraisal
of the Evidence", The Journal of Social ISSM~S , ol. IX,
No.4 (19531,P.72.452 SOUTH WEST AFRICA
4. Decter, M., "The Negro and The ~ew York Schools",
Commentary,Vol. 38,No. 3 (Sep1964)pp. 25-34.
5. Deutsch,M., "Some Perspectives on Desegregation Ke-
search", The RuleO# the Social Sciencesin Desegregation:
A Symposium, pp. 4-6,at p.6.
6. Gregor, A.J.,"On the Nature of Prejudice"., Eugenics
Review, Vol. LI1 (Apr. 1960-Jan1961) ,p.217-224 at
p. 219.
7. Horne, F. S., "Iriternational Housing in the United States",
Phylon, Vol. XIX,Xo. x(Sprin 1958) pp. 13-20at p.14.
8. Johnson,R.,"Negro KeactionstoRlinoritjr Group Status",
in Barron,i\l..(EdAmericanMinorities1957 ,p.192-212.
9.Lamberty, Ai."Wat betekent pluralisme?" De Vlaarrase
Gids No. 12(Dec.1963)pp.798-81 2tp.811.
IO.Lee, F. F., "The Race Relations Pattern by Areas of Be-
liavior ia Smali New England Town", American Soca'o-
logicnlReview, Vol. 19, Io(Feb.1954) pp.138-143.
II.MankindD.Quarterly,Vol. 1,NoI(Julya1g60)p,p.51-54st",
54.
B. TITLES
r. "One PIan toend Race Troubles: Pay People to move",
U.S. News and TYovldReport, Vol. LVI, No13(30 Mar.
1964*P.37.
2."Crisis in Race Relations-Howill it be m",?U.S.News
and tVo& Re#ort, Vol. LVII, No. 6(IOdug. rg64), pp.
26-32.
3."Looting:The High Cost of Race ViolenceU.S . ews and
WorldReport, Vol. LVII, NII(14Sep.1964) pp.36-41.
V. Newspapers
I.The Sta Johannesburg),13Oct. 1964.
2.TheTimes (LateLondon Edition), 7Dec1962.
3. TheTimes (Late London AirEdition) ,27 Aug,19.3.
CWAPTER XII
Leagueof Nations
Mandate for Gerrnan South-West Africa.
ANNEX A TO VOL. 1
1.Union of South Africa
Parliamentary Debates.
House of Assembly (1913)ol2514.
II. UnitedKingdom
BRITISH BLUEBOOKS
Cowes$ondence relative to assetmptO/nSovereigniy ove? the
Territory betweenthe Vau1 and Orange Rivers (London: W.
Clowesand Sons,1851) p.82. REJOINDER OF 50UTEI AFRICA 453
Fuvther correspondenceresp~cting the Aflairs of South Africa
(London: George Edward Eyre and William Spottiswoode,
r881), C-2740,pp. 5and go.
+III.Books
A. AUTHOR ASND TITLES
I. Agar-Hamilton, J. A. I., The Native Policy of the Voor-
trekkers (CapeTown : Maskew MillerLtd., 19z8),pp. 4and 18.
2. Barrow, J., Tvavels into the Interior of Southern Africa,
Vol. 1 (London: T. Cade11and W. Davies, 1806), p.242.
3. Bryant, A. T., Olden Times in Zzlluland and Natal (Long-
man's Green and Co., 1929).pp. 142-143 and 423.
4. Edwards, J., Reminiscences of the Early Life and Missionary
Labours (London and Aylesbury: Hazell, Watson and
Viney, Ltd.,18861,p. 79.
5. Harris, W. C., The Wild Sports of Southern Africa (Cape
Town: C.Struik, 1963),pp.255-256.
6. Lichtenstein, H., Travels in Sozcthern Africa, translation
from the original German by Anne Pluniptre (Cape Town,
Nasionale Pers, Beperk, Pnnters, 1930) V~ol. II, pp. 64 and
242.
7. Long, B. K., In Smuts's Camp (Oxford University Press,
1945),P.102.
8. Malan, J. H., Die Opkoms vlan'n Re$ubliek (Bloemfontein:
Nasionale PersBpk., 1929) p.9.
g. Marais, J. S.The CapeColouredPeople1652-193 (Johannes-
burg: Witwatersrand University Press, 1957).p.5.
IO. Nathan, M., The Voort~ekkersof South Africa (London:
Gordon and Gotch, Ltd.,1937)~p. 141.
II. Nathan, M., Paul Kruger HZ'SLife and Times (Durban:
The Knox Publishing Comp.,1946),p. 254.
12. Pellissier, S. H.,Jean PierrePellissiervanBethulie (Pretoria:
J. Lvan Schaik, Ltd., 1956),p. r62.
13. Schapera, I., TheKhoisalûPeoples of South Africa (London:
Routledge and Kegan Paul Ltd., 19601,pp. 30,38-41:and 46.
14. Stow, G. W., The Native Races of South Africa (London:
Swan Sonnenschein and Co., Limited, ~gro), pp. 5-6, 236,
247,309-310 and 460-471.
15. Theal, G. M., Basutoland Records, Vol. 1 (Cape Town:
W.A.Richards & Sons, 1883).pp.2 and 4-6.
16.Theal, G. M., Basutolalûd Records, Vol. II (Cape Town:
W. A. Richards & Sons, r883), p. 79.
17. Theal, G. M., Belangrijke Hisforiscke Dokumelzten(Kaap-
stad: Van de Sandt de Villiers & Co., Beperkt, 1896),
Vol.II, p. 64.
18.Theal, G, M., History of SozkthAfrica #rom 1846 to 1860
(London: Swan Sonnenschein & Co., Ltd., rgoq),pp. 6-7and
96-97-
rg. Theal, G. M., Belangrijke Historische Dokumenten ove7
Zuid-Afrika, Vol: III (London :William Clowes and Sons,
Ltd., I~II), p. 249.
20.Theal, G. M., History of South Africa: Vol. 1 (London:
Swan Sonnenschein & Co.,Ltd., r897),pp. 37 and 68.454 SOUTH WEST AFRICA
21.Theal, G. M., The Beginning of South African History
(CapeTown: T. hlaskew Niiler,~goz),pp. 14-15 17and 30.
22.Theal, G. hI.,History of South Africa /rom 1828 to 1846
(London: Swan Sonnenschein and Co., Ltd., ~goq),pp. 170,
268-26g,z76,2Sr, 293,316-318,320, 331,344-345 and 363,
23. TheaI, G. M., History and Ethnogra$hy of Africa Sodh
O/the Zambesi (London: Swan Sonnenschein & Co., Ltd.,
rgog),Vol. II, pp. 126-127,431-433 and 446.
24. Theal, G. hI.,History of Soztfh Africa from 1873 lo 1884
(Londoii: George Allen 8rUnwin Ltd., ~g~g),Vol.1 (VoI.X
ofthe Series),p52.
25.Theal, G. M., History and Etltlwgrafllty of Africa South of
flzeZambesi (London: George Allen & Unwin Ltd., 1922).
Vol.III, pp. rgz-193and 281.
26.Thcal, G. M., History of Sozlth Africa (London: George
Allen & Unwin Ltd., 1919), Vol. IV (Vol. VI11 of the
Serics),p197.
27. Theal, G. hl.,Ethnografihy nwd Condition of South Africa
before A.D. 1505 (London: George Allen & Unwin Ltd.,
~gzz),pp.47and 58-89.
28. Theal, G. RI..History of Africa South of theZambesi (London:
George Allen & Unwin Ltd., ~gzz), Vol. II (Vol. III of the
Serics),p.I~G.
29. Tlieal, G. hl., History of South Africa (London: George
Allen and Unwin Ltd., r926), Vol. II (Vol. VI ofthe Series),
pp. 86-gr,x50 and320.
30. Theal, G.al.History of Africa Soztthof theZambesi (London:
George Allen & Unwin Ltd., 1gz7), Vol. 1 (Vol. II of the
Series), pp. 327-328
31. Thcal, G. $1.. History of South Africa (London: George
Allen & Unwin Ltd., 1927), Vol. 1 (Vol.V of the Series),
PP.321,331 and 335-336-
32. Thompson, L. M., The Unificationof SozlthAfrica ~90.2-~gro
(London: Oxford University Press, 19601,pp. 333-334.
33. Van der Jlenve, P. J., DieNooudwaartseBeweging van die
Boerevoor dieGrootTrek, 1770-184 (D2en Haag: W. P. van
Stockum & Zaon, 1937),pp. 117-126 and 140.
34. Voigt, J. C., Fifty years of the Nisiory of the Re$ubEin
South Alrica (London: T. Fisher Unwin, 18gg), Vol. 1,
pp. 192and 205.
35. Walker. E. A., The Great Trek (London: A. & C. Black,
Ltd., 1934)~PP 57-58.
36. Walker, E. A., A History of Sozlth Afvica (London: Long-
rnans, Green and Co., 1935) pp. j33-534.
37. Walker, E. A., A History of Southern Afrlca (London:
Longmans, Green and Co.,1957).pp. 33,36, 41,98 and 175,
B. TITLES
The ColrciseOxford Bictiolaary of Czwrent E-lish, edited by
Fowler, H. \V. and Fowler, F. G. based on The Oxford
Dictionary, Fourth Edition, revised by E. McIntosh (Oxford:
Clarendon Press, 1956) p.648. REJOINDER OF SOUTH AFRICA 455
IV. Articles
AUTHORS AND TITLES
I. Collins,Cd., "Journal ofa Tour to the North Eastern Boun-
dary, the Orange River, and the Storm Mountains" in The
Record :or A Serieof OfficiaPapers Relative to the Condition
and Treatment of the Native Tribes of South Africa, Part V,
. No. r (1808-18rg), compiled, translated and editby Rioodie.
D. (A.A. Balkema, Amsterdam/Cape Town, RIDCCCCLX),
PP.9and 34.,'
2. Wilson, Al., The Early History of the Transkei and Ciskei",
AfricartStudies, 1701.18,No. 4 (1g59),pp. 167-179.
V. Theses
I. Huyser, J. D., Die Natttrelle-Politiekvan die .Suid-~frikaansc
Kefiribliek,1838-187 (7npublished D.Litt. Thesis, University
ofPretoria, 1936)~pp, z3,~4,25-26 and 261.
2. Jordaan, J.T., Die Ontwikkelingvan dieSenlliftgvan dieNeder-
duils Gereformeeude erk in Transvaal(Unpublished D.D. Thesis,
University of Pretoria1962),pp. 98-99.
3. Kotze, D. J., "Die Eerste Amcrikaanse Sendelinge onder die
Matabeles", Archives Year Book for South African History
(Yarow :Cape Times Ltd., 1g50),Vol. 1p. 199.
4. Le Rous, H. J., Die ToestnncZ,Verspreidzngen Verbrokkeling
van dieHottentotstammein Suid-Afrika, 1652-171 (3npubIished
M.A. 'Thesis, University of Stellenbosch, 19451 ,p. 2, and
224-225.
5. Van Rooyen, T. S., "Die Verhouding tussen die Boere en
Xaturelle in die Geskiedenis van die 00s-Transvaal totISSZ",
Archives Yenr Book /or SorttlzAfricalz Wisfory (Parow: Cape
Times Ltd., 1g51),Vol. 1,pp.3-4 and 88.
VI. Unpublished Archival Sources
A. CAPE ARCHIVED SEPOT
Co?n$a?tyKecords
C. S :Resolzltions,11.1o.r712, "Five tl-iousandNamaquas mur-
der Ruskimen", p. 271.
C.31 0Mernorials and Reports,7.5.I776. "Bushmen kiUed by
Natives and Hottcntots", p. 129.
C.626: Day Jortrnnl, 31.10.1755. "Small-pox epidemic", pp.
208-209.
C.635: Day ]ot6vnal5.12.r767. "Hottentots die ofsmall-pox",
pp.638-639and 657.
C.680: Original PEacaatbook,16jz-1686, 14.10.16jz. "HOW the
officiaismust treat the Hottentots",pp. 31-32.
C.68 0Original Placnatbook, 1652-1682, 24.Ir.1661. "Waar-
schouwinge van Jan van liiebeeck", p. 174.
C.681: Original131acaatbook1,652-16872 .,.1693,p. 182.
ColonialOgice
C.0. 373: Lefiers Received,24.3.1830. "Griquas exterminate
Rushmen and Uootchuvanas".
VerbatimCopies
V.C. I: DayJouunnl,9.1.1653,pp. 362-363.
V.C.4: Ilay Journal, z9.r1.1663,p. 494.456 SOUTH WEST AFRICA
V.C.20: DayJo~mal, 19.5.17 1.129.
V.C.zo: DuyJournal, 11.6.171p.,45.
B. TRANSVAA ALRCHIVES DEPOT
Archives theSdnteSecretavy,TransvaRefiublic
B.Massouw,24July 18Gg",pp..1-2,Pretorius toNative Chief
B.B. 979169:"Letter by M.W. PretoriutoJ. Brooks19 Octo-
ber 1869",pp. 1-2.
B.B. 981169: "Letterby M. W. Pretorius to Grutzner,19
October 1869"pp. 1-2.
B.R. 13ro/Gg: "Letter bB.C. E. Proes to Landdrost, Bloem-
hof, 23November 1869", p1.
B.B. 1490174:"Letterby State President to ParamounChief
Moshette, 27November 1874",p.I.
First Yolksraad
E.V.R. 1: First Volksraad, "Minutesofthe Council of Re-
presentatives, 4 November 1847,p.103-104.
St& Avchivm
R. 5191. 53olume State Secretary No. 5. "Proclamation signed
by A.W. J. Pretorius o22 April 1853"pp. 1-2.
VII.Other
Oberholster, J. J., Streekopnamevan die Suidoos-Vri:Eerste
voorlopige versIag (unpublished manuscriprI. p.
PART III:SECTION F
1.Republicof SouthAfrica
REPORT OF COMMISSION
R.West Africa9Aflaivs1962-1963ip,p.61,f81,83,85,i87, 93,sth
97,99,117- 1nd9259.
II. SouthWest Africa
LEGISLATION
Pvoclamation
No. 56 of1951,Nalives{Urban Areas) Proclamatio.rggr in
The Laws ofSouth West Afric1951 ,ol. XXX, pp.90-170.
III. Books
TITLES
The Concise Oxford DicfionaryofCurrent English, editeby
Fowler, H. W. and Fowler, F.G.,based on The Oxford Dic-
tionary, Fourth Edition, reviçed by E. McIntosh (Oxford:
Clarendon Press,956)p,.822.
PART III: SECTION G
1.League ofNations
A. Minutes of thePermanent MamdatesCommissio~,sess.,II, 1922,
P.50; IV, 1924,p184 ;II,1927 ,.181;XV,1929,p.73;XVIII,
1930, pp. 137and 138;XX, 1931, p.25; XXII, 1932 p,.67; REJOINDER OF SOUTH AFRICA 457
XXVI, 1934, pp, 59 and II$; XXVI11,.1935, p. 64; XXXIV,
1938,pp. 91 and+xzg;XXXVI, 1939, p. 38.
B. OTHER . .
Covenant ofthe League of Nations.
Mandate for German South-West Africa. .
II. United Nations
A. GENERAL ASSEMBLY
.. r. Resolutions
324 (IV), 15 Nov. 1949in U.N. Duc.A/I~~I, pp. 39-40.
445 (V), 12Dec. 1950 inG.A., O.R., F@h Sess.,Sufifil. No.20
(A/1775),P. 54.
743 (VIII), 27 Nov. 1953 in G.A., 0.~'.,EighthSess., Sup$L.
No. 17(A/2630),p. 24. . .
1514 (XV),14 Dec. 1960in G.A., O.R., Fifteedh Sess.,Su$pl.
No. 16(Aj4684),p. 66.
1698 (XVI), 19 Dec. 1961 in G.A., O.R., Sixteenth Sess.,
Sufipl.No. 17(A/~Ioo),p. 37.
1850 (XVII), 19Dec. 1962 in C.A., O.R., SeventeenthSess.,
SU#$. NO. I7(A/5217),P. 43.
1904 (XVIII), 20 Nov. 1963 in G.A., O.R., EighteentlzSess.,
Szcppl.No. 15(A/5$15),p. 36,
2. SpecirclCornmitteeon the Policies of Apartheid of the Govem-
ment oftheRepublic ofSouth Africa.
U.N. Dac. A/AC.II~/SR.ZI, ZIS~ Meeting, 22 Aug. 1~6~.
p. IO.
B. TRUSTEESHIC POUKCIL
I. Reports' of the Cornmittee on Inforntation from Non-Self-
GoverniwgTer~itories
G.A., O.R., Eleventh Sess., SuPPE.No. 15 (A/3127), pp. 14,
22 and 23.
G.A., O.R., Tenth Sess., Sufipl.No. 16 (A/2908), p. 30.
G.A., O.R., Fourieeqzth Sess., Sa#$. No. 15 (A/~III),
p. 16.
G.A., O.K. , ifteenth Sess., SufifiNo. 15 (AJ4371).p. 51.
2. ReportsoftheCouncil
G.A., O.R., Fijtk Sess., SufipZ.No. 4 (A/1306),p. 80.
G.A., O.R., Sixth Sess., Sufipl. No. 4 (A/r856), pp. 81, 97 and
G.A., O.R., Tenth Sess., Sufipl. No. 4 (A/2933), pp 107,
140 and 142.
G.A., O.R., Eleventh Sess., Su#$Z. No. 4 (A/~I~o), pp. 33.
61, IIZand 115. . .
G.A., O.R., Twelfth Sess., Sufipl. No. 4
pp. 50.
G.A., O.R., Thirteefitk Sess., Sufifil. No. 4 (A/3822),Vol1,
p. 1.
G.A., O.R., Fourteenth Sm., Suppl. No. 4 (A/~Ioo), pp. 58
and 86.
G.A.,O.R., Fifieendla~ess.,Suppl. No. 4 (A/4404),pp. 86 and
145. SOUTH WEST AFRiCA
G.A., O.R., SeuenteenfhSess., Sup+l. No(A/5204),p. 27.
G.A., O.R., Eighteenth Sess., Suppl. No(A/5504 p),22.
3. Otlzer
U.N. DOC.A/r303/Add.1, 20 Sep. 1950, pp16, 17 and 18.
C. ECONOM IGD SOCIAL COUNCIL
I. EconomicCommissionforAfrica
U.N. Doc. E{CN.r4/171, Economic Bz~lletin for Ajrica
(Addis Ababa, Ethiopia, June 1962), Vol. II, No. 2,
PP-92-93.
2.Commission on Human Righfs
U.N. Boc. E/CN.4/Sub.z/r81, 7 Nov. 1956, pp.24,56 and
58-59.
D. ISTEKCOVERNMENTA AGLEYCIES RELATED TO THE UXITED
N.~ONS
UnitedNations Educalional,ScientificandCultura1Organizatioti
African Languages and English in Education: A Re-
port of a Meeting of Experts of the Use in Education
of African Languages in Relation to Engtish, where
English is the Accepted Second Language, Held at
tional, Scientific and CulturalOrganization,Education
Clearing House, Educational Studies and Documents,
Unesco EDIISI, Conference of African States on the
Development of Education ilz Africa, Addis Ababa,
15-25 May 1961, FinalRepovl,pp. 6 and 36.
Unesco, Basic Fncls altd Figures 1960, International
Statistics relating to Education, Culture and 3lass
Communication (Paris: United Nations Educational,
Scientific and Cultural Organization, 1g61), pp. 29,
30,36,38, 156.157,166-167 and 172.
The Use of Vernacular LanguagesIn Edzacation:Mono-
graphs on Fundamental Education-VI11 (Pari:
United Nations Educational, Scientific and Cultural
Organization, 19.53)~pp. 47-48, 49, 51, 52,64-65.
66 and 69.
World Survey of Education-II: I'rimary Education
(Paris: United Nations Educational, Scientifand
CulturalOrganization, 195.p.~674.
ID. France
Rapport Annuel AdressÉpar leGotivernementFra?tçarsau Consede
la SociétédeNations. Coraformémenàf l'Artic22 du Pacte sur
l'ddministraiion soersMandat du TerritoduTogo,po~rl'Année
1938 (Paris: Imprimerie Cogery, 1g3g)p. IO4and111-113.
IV. Union ofSouth Africaand RepublicofSouth Africa
A. PARLIAMENTA DREYATES
I. HouseofAssembly,Vol. 53 (1945)~Col. 5517; Vol. 83 (1953)~
Cols.3575-359 0;ol.IOO (19$9), Cols. 3246 and 3264;
Vol.IOI (~g~g),Cols.6221 and 6223. REJOINDER OF SOUTH AFRICA 459
2.Sewk, Vol. II (1954)Cols.2595-2622V;ol.III(19.55)~
Cols.528,4529,45 a304531-
B. Reports presertbythe Governmenf of the Urtiofi of Soz~dk
Ajrica to the Courtcilof the Leagzteof Nations concernilzgthe
administrationofSouth WestAfrica
1929:U.G.23-1930, P. 51.
1930:U.G.21-1931p ,p.SI,55and 59-62.
1932:U.G. 16-1933,p.144.
1933:U.G.27-1934, P. 29.
1934:U.G.26-1935, p.41.
1935:U.G.25-1936, p. 39.
1936:U.G.31-1937, p.38.
C. REPORT SFCOMMISSIONS
U.G. 29-1936, Report of the Interde$artmental Cornmitteeon
Native Educatiofi1935-1936,pp. 87-g2,.9and106.
U.G. 53-1951,Refloyt of dheCommission on Native Education
1949-195p1p. 42-43,21-122128,129,130,I3I,132.134,
146,17a2nd176.
R.P. 2211963R,eport of the Commission of Inqztiry into the
Teaching of theicial Laltguagesand the Use of the Mother
Tongue as Medium of Ifistrztction in Transkeian Primary
Schoolpp. 5,6,11, r4,15,16-17,18 19.
R.P. 1211964Report of tCommissionofEfiquiry info South
WestAfricadgairs 1962-19p3p. 17245,259,26 2nd427.
V.SouthWest Africa
A. REPORT SPCOMMISSION
UnpubJished
Report of the CommissioO# Inqui~y into Non-European
Edzecationin South West Africa, Native Education
(Nov.1958),pp80,81and115-116.
B. LEGISL~~T~ON
~r~clamntions
No. 55 of1921,EducatiortProclamation, in2The Laws
of South West Africa 1915-2ol. 1,pp.632-683.
Noof South West Africa,Vol. V, pp. 132-226.e Laws
No.IO of1934E,ducation Proclamation Further Amendme7zt
. Proclamation,19inThe Laws of South West Africa 1934,
Vol. IIIpp.120-122.
VI.United Kingdom
1.Refiort of the Commission on The Civil Sei-vicesof Kenya, Tan-
ganyika, UglrGdZanzibar1947-48,Colonial. 22(Londo n
HisMajesty'Stationery Office,rpp.27and119.
2.Report byHis Majesty's Covernme?ttin the UrtitedKiofdom
GreatBvitain anIrela.to theCouncilof the Leagzteof Nations
on theAdmirtistration of the Tanganyika Territory for the Yeav
1938 (London: His MajestyStationery Office, rg,.119.
VII. Books and Pamphlets
A. AUTHORS AND TITLES
r. De Kiewiet, C.W., Academic Freedom: The Second SOUTH WEST AFRICA
T. B. Davie Mernorial Lecture delivered in the ,University
of Cape Town on 26 July 1960 (Cape Town: University
of Cape Town, 1961), p.18.
2. De Kiewiet, C. W., The Anatomy O/ South Ajrican Miser-y
(London : Oxford University Press, 1956) .p. 54-55.
3. Hirschman, A. O., The Strategy..of Econo~ic DeveEopme~t
(New.Haven : Yale University.Press,. 19601,pp. 12 and 13.
4. Lipsky, G. A., Efhiopia: ItsPeople, Its Society,Its Culture
(New Haven: Hraf Press,rg62) pp. 97-98.
5. Westermann, D., The African: To-day and To-morrow
(London: Oxford University Press, 1949),p. 65.
B. TITLES
Education for South A/ïica: The 1961 Education Panel First
Report (Johannesburg: Witwatersrand University Press,
1963),PP xiv, 54-55,56,57 and 58-
VIII. Articles
AUTHORS AND TITLES
I. Gregor, A. J., "The Law, Social Science, and School Segre-
gation: An Assessment": Reprinted from Western Reserve
Law Review, VoI. 14, No. 4, September 1963 (The Press of
Western Reserve University, 1963), pp. 621-636,at pp. 624,
' 625,626 and 632.
2. Macquarrie, J. W., "The New Order in Bantu Education",
Africa South, Vol. 1, No. I (0ct.-Dec. 1956), pp. 32-42, at
pp. 40and 41.
3. Sneesby, G. W., "The Vernacular in Bantu Education in the
Union of South Africa", OvavsenEdz4cation, Vol. XXXIII,
No. 2 (July 1961),pp. 75-83, at pp. 75 and 80.
4. Van den Haag, E.,"Social Science Testimony in the Desegre-
gation Cases-A Reply to Professor Kenneth Clark", Villa-
nova Law Review,Vol. 6 (1960), pp.69-79, atp. 69.
IX. Newspapers
I. Daily Dispatcl~(East London), 26 Ju~ie1964, p. II.
2. The Star (AirEdition, Johannesburg), 27 Jan. 1962.
X. Other
Report of the Commo~wealthConference on theTeaching oj English
as aSecondLanguage,held at Makerere College, Uganda, I to 13
January 1961 (Entebbe: Printed on belialf othe Commonwealth
Education Liaison Cornmittee by the Government Printer,
Uganda), p.23.
PART III: SECTIONH
1. League of Nations
Minutes O/the Permanent Mandates Commission, sess..XIV, 1928,
p. II.
II.United Nations
A. GENERAL ASSEMBLY
CornmilteeonSouth WestAfrica
G.A., O.R., TweEfthSess.,Sufipl. No. 12 (A/3626), p. 16. REJOINDER OF SOUTH AFRICA 461
G.A., O.R., Fifieenth Sess., Sufifil. N12 (A/4464), pp. 7-8,
41 and 54.
B. TRUSTEESHIC POUNCIL
Committee on Information fvom Non-Self-Governing Territories
G.A., O.R., Ninth Sess., Sz~pfiE.No. 18 (A/2729), pp.15
and 16.
G.A.,O.K., Sixteenth Sess., SufipNo. 15 (A/4785), p. 53.
C. ECONOMI CND SOCIAL COUNCIL
I. CoztnczlDocument
Ecosoc. O.R., Sixteenth Sess., Sufipl. No. 13, Report of the
Ad HOCCommitfee on Forced Labour, pp. 72, 75, 76, 77
and 79-80. (Thisdocument is also No. 36 in the Studies
and Reports (New Serjes) of the International Labour
Office.)
U.hr. Doc. E/~g~ojAdd.~/Rev.~, sT/EcA/g/Add.~, Review
of Economic Conditions in Africa (1951)~p. 74.
U.N. Doc. E12670, ST/ECA/zg, Processes and Problems of
Industrialization in Ulzder-d~velopedCountries (1955),
pp. 18,Zr, 22and 119.
U.N. Doc. Ej3137, ST/ECA/57, Structure and Growth of
SelectedAfrican Ecolzomies(1999p ,p. 2,3 and 73-74.
2. EconomicCommission/orAfrica
U.N. Doc. E/cN.14/67, Economic Bullefifi fm Africa (Addis
Ababa, Ethiopia, Jan. 1g6r), Vol.1,No. I,p. 87.
U.N. Dot. E/CN.14/132, Rev. I, Econonzic and Social
ConsequencesofRacial DiscriminatovyPraclices(1963p )38.
U.N. Doc. ElcN.141171, Economic Bulletin for Africa
(Addiç Ababa, Ethiopia, June 1962),Vol. II,NO. 2,pp. 7
and 17,
3. Social Commission
U.N. Doc. E/CN.g/324/Rev.1, ST/SOA/33, Report OH the
World Social Situation (1957). p. 147.
U.N. Doc. E/CN.5/346/Rev.1, ST/SOAJ42, Report on the
WorldSocial Situatiolz (196r), p25 and 32.
D. INTERGOVERNMENTA AGLENCIES RELATED TO THE UNITED
NATIONS
I. IndernalionalLabour Organisation
Afvica.nLabour Szlrvey (Geneva: 1958, Studies and Reports,
New Series, No. 48),pp. 15,61,13o-131,133 and 138.
Constitution of the International Labour Organizatiorzalad
Standing Orders oj the International Labour Conference
(Geneva: 1963 Edition), Annex, pp. 21-23.
Employment Objectivesin Economic Develo+ment (Geneva:
Studies and Reports, New Series, No.62, 1961),p.iii.
"Foreign Workers in Switzerland", International Labour
Review, Vol. LXXXVII, No. z (Feb. 1963), pp. 133-155,
at P.133.
International Labour Conference, Thirty-Seventh Session,
1954,Fifth Item on the Agenda: Migrant Workers (Under- SOUTH WEST AFRICA
deuelofied Countries), Report V (1) (Geneva: 1953)~
PP- 44-45,51,55 and 57-58.
International Labour Conference, Forty-Eighth Session,
1964, Tenth Item on the Agenda: Profiosed Declaration
concer~tingth Policy of "Af~artlaeid"O/ tlze Refiblic of
South Africa, Report X (Geneva: 1964), pp, 7, 13 and 15.
International Labozir Co.rrventionsChart of Ratifications,
I June 1964, The Abolition of Yenal Sanctions Con-
vention, Igjj (NO.104).
Inien&atio?&aLdaboi6r Review, vol. LX?IXVIII, No. 2
(Aug.19631,P. 183.
international Migration 1945-195(7 Geneva: Studies and
Reports,Xew Series, Ko.54, 1959) pp. 153 and 154.
"Interracial Wage Structure in Certain Parts of Afnca",
I~~ter~$ationaLlabozw Review, Vol. LXXVIII, No. I
(Jilly rgj8), p20-55,al pp.21, 23.24,33,35 and 54.
"Inter-'l'erritoridMigrations of Africans South of the
Sahara", International LabouvReview,Vol. LXXVI, No. 3
(Sep.1g57) p,.292-310, at pp. 306and 310.
"The Productivity of African Labour", International
Labour Review, LXXII, Nos. 2 and 3 (Aug.-Sep. 1955)~
pp.119-137,at pp.120 and 121.
T.ïfhLabour leavesthe Land (Geneva: Studies and Reports,
New Series, No. 59, 1960),pp.165, 170and 179.
17earbookof Labour Statistics 1963 (Geneva: Twenty-Third
Issue,1963),pp. 309-361and 414-429.
2.InlernationalMonetary Fuid
The Eco~omy of Liberi(a Prepared by the African Uepart-
ment and Exchange KcstrictionsDepartment, Feb. rg63),
pp.IO andII.
III. Commissionfor TechnicalCo-operation inAfrica South oftheSahara
r. Migratil Labozirin Africa South the Sahara (Abidjan: C.C.T.A.
Publication, No. 79, rg61),p. rjz.
2. "The Human Factors of Productivity in Africa: A Preliminary
Survey", Inter-African Labour Instituie,2nd ed. (1960), p. 93.
3. IVatson, W., "Migrant Labour in Africa South oftheSahara-2.
Migrant Labour in Detribalization", Inter-Ajrican Labosr
Institute Btrlletin,Vol. VI, N2.(Mar. ~gjg),pp. 8-33.3-p. 30.
4. EIkan, W., "Migrant Labour in Africa South of the Sahara-6.
The Persistence of Migrant Labour", Inler-African Labo~lr
IrastituteBulletin,Vol. VI, No. 5 (Se1959) pp. 36-43 atp. 42.
5. "Migrant Labour in Africa South ofthe Sahara-XII1. Migrants
and Prolctarians", Iater-African Labour I~astitztteHzrlletia,
' Vol. IX, No. I (Feb. rg62),pp. 58 and60.
IV. Ethiopia
State Bank of Ethiopia Statistical Office, Money Supply, Cost of
Livingand RelatedMatters (Sep. 1958),pp. 6-7.
V. Union of SouthAfrica and Republic ofSouth Africa
A. Parliamedary Debates
Hot~seojAssembly
Vol. 104(1960)~Col.2996. REJOINDER OF SOUTH AFRICA 463
'B. Aanual Reports onSouth West Africa submittedto theCowncilof
theLeagzceofNations
Re+ortsof theGovernmentof the U.nionof South Africa onSowth
West Africa
1926: U.G.22-1927, p. 22.
C. Reports of Commissions
r. Published
U.G. 36-1949, Refiort of the Commission of Enquiry into
Riots in Durban,p. 15.
U.G.53-1951, Re$ort of theCommissiononNative Ed~cation
R.P. No. 1211964,Report of the Commissiowof Enquiry iato
South West Africa A8ail.s 1962-1963, pp. 29, 37, 39, 41,
69, 71. 81-107 109, 111, 117,307-311 315, 333,335-343,
377, 379,381,429,449-455,457-459 and 513.
2. Uq5ubEished
Refiortof theComnaitteere Foreign Bantu (Interdepartmental
Cornmittee, Apr. 1962),pp. 142 and 164.
D. LegisLation
Statutes
Act No. 15of 1911,Native LabozcvRegulationAct, 1911 in Sda-
tudesof the Union ofSouth Africn 1910-1911,pp.528-556.
Act No. 39 of 1930M,otorCavrierTransfiortationAct, 1930 in
Statutes of the Union of SozdhAfrica 1930,pp. 460-482.
Act No. 30 of 1941, Worknzen'sCompens(ztionAct, I94I in
Statutesof the Union ofSouth Africa Ig40-Ig41, p366-480.
Act No. 27 of 1951, Native Building Workers Act, 1951 in
Statutes of the Union ofSoztthAfrica 1951,pp. 106-152.
Act No. 48 of 1953, Nafiiie Labour (Settlement of Disfiates)
Act, I953 in Statutes of the Union of South Africa I953,
pp.276-326.
Act No. 44 of 1955 , otor CarrierTraasfiortationAmendment
Act, 195.5in-Statutes of the Union of SozcthAfrica I9.55,
Part 1 (Nos.1-55),pp. 422-466.
Act No. 59 of 1955,Native Labour (Seftlement of Disfiates)
Amendmext Act, 1955 in Statutes ofthe UivZoraof Sodh
Africa 195.5,Part II (Nos. 56-70),pp. 1502-1508.
Act No. 60of 1955,Native Building WorkersAnzendmelztAct,
1955 in Siatules of the Uxion of South Africa 1955, Part II
(Nos.56-70),pp. 1508-1510.
Act No. 28 of 1956, Indastria1 Conciliation Act, 1956 in
Statutesofthe UfiionofSozlthAfrica r956, Part 1 (Nos.1-47),
PP 519-753.
Act No. 53 of 1957, Native Transfiort Services'Act, I95in
Statutes of the Union of South Ajrica 1957,Part II (Nos.
45-83),PP.776-792.
Act No. 54 of 1957,PuhZicSewiceAct, 1957in Statutes of the
UniolzofSouthAfricarg57, Part 11 (Nos.45-83),pp.794-85 .
Act No. 22 of 1960, Railways and HarboursServiceAct, 19 B0
inStat,uteO/ the UnioîtO/South Africa 1960, pp. 151-213.464 SOUTH WEST AFRICX
Act No. 7 of 1961,Wo~kmen'sCmfensation Amendment Act,
1961 in Statufes of theRefiublicof SouthAfrica 196r, Part 1
(NOS .-41)pp 36-48.
Act No.64of 1962,PneumoconiosisCornfiensutionAct,1962in
Statutes of theRepublic of South Ajvica 196Vol.II (NOS.
59-93),PP.1023-r183.
E. Other
I. Population Census, 1960: Sample Tabulation; No. 5-
Industry Divisions, Age Grozlps,Major OccupationGroups-
Bani% (Pretoria: Bureau ofCensus and Statistics; Govem-
ment Printer, 19631,pp. 52-55and56.
2.Monlhly Brtlletin of Statistics (Pretoria: Bureau of Census
and Statistics; Govemment Printer, 1964), Vol. XLIII,
Xo. j,pp. 18,zo and 26.
VI. South WestAfrica
A. REPORT SF COJIMISÇIOPIS
U.npublislzed
Report of the Commissioa of Inquiry inlo Non-European
Educalion ifiSouth WestAfrica, Part 1, Native Education
(Nov. 1958).
B. LEGISLATION
x.Ordi?za+tces
No. 12of 1938, A#prenticeship Ordinance,1938 in The Laws
of South West Ajrica1938, Vol. XVII, pp. 214-234.
No. 15 of 1948, Apprenticeskip Ameîtdment Ordinance,1948
in The Laws of Sozlth West Africa xg@, Vol. XXVII,
pp. 224-226.
No. 25 of 1954,Natives (Lirban Areas) Proclamation,19j1
FzcrtherAmendment Ordinance,1954 in TheLaws of Smith
WestAfrica 1954, Vol.XXXIII (TI),pp.737-753.
No. 25 of1957, App~enficeskifiAntendment Ordi?zance,1957
in The Laws of South West Africa I957, Vol. XXXVI,
PP.252-254.
No. 20 of1959, Apprenticeshifi Amendment Ordinance,1959
inThe Laws of South West Africa 1959, Vol.XXXVIII,
PP.520-524.
No. 2 of 1962,Social Pensions Amendment Ordi.vlance1, 962
in The Laws ofSouth West Africa 1962,Vol. XLI, pp5-21.
No. 13of 1963, Municipal Ordinance.1963 in TheLaws of
SoerthWestAfrica, Vol. XLII (1),pp. 138-488.
2. Proclamations
No. 34 of 1920, Mnster and Servants Proclamation in The
Laws of South West Africa 1915-192V 2,l.1,pp.336-366.
No. 27 of 1929, OvanzbolandAoairs Proclamation, 1929 in
The Ltzws of SOUI~ West Afrtca rgzg, Vol. VIII, pp.
258-264.
No. 32of 1937O ,kavangoNative Terrilory Aflairs ProcEama-
tion, 1937in The Lazeisof South West Ajrica I937, Vol.
XVI, pp.306-312.
No. 56 of195r ,atives (U~ban Areas) Proclamation, 1951 REJOINDEB OF SOUTH AFRICA 465
in Tlze Laws of South West Africa 1951, Vol. XXX,
. . pp. 90-170.
3. GovernmeiztNotices
. . No. 193of 1952in The Laws of South West Africa 1952,
Vol.XXXI, pp. 850-852.
No. 33 of 1956 in The Laws of South .WestAfvica.1956,ol.
xxxv (II),Pp. 499-723.
'VII.United Statesof America
I."Basic data on the Economy of Liberia", WorldTrradeInforma-
tion Service-Economic Reports (Washington: U.S. Government
Printing Office,Department of Commerce), Part 1, No. 59-57,
pp. 11-12.
2. EstabIishing aBusiness in Ethiopia", WorldTradeI?tformation
Service-Economic Reports (Washington: U.S. Government
Printing Office,Departmcnt of Commerce), Part 1, No. 59-r6,
pp.6and 7.
3. LaborZn Liberia (United States Department of Labor, Bureau
of Labor Statistics: Foreign Labor Information, May 19601,
pp. 6,9,IO and rr-16.
4. U.S. Army Area Wandbook for Ethioflia (Washington: U.S.
Government Printing Office, Department of the Amy), 2nd
edition,Pamphlet No. 550-28 (June 1964),p.225.
5. 86th Congress, and Session-Sennte, senate Committee on
Labor and Public Wclfare, Sub-Committee on Migratory Labor,
TheMigralzt Farm Workerin America (Printed for the use of the
Committee on Labor and Public Welfare-Committee Print,
1961), p. IO.
6. 88th Congress, 1st Session-Senate, A Report on United States
Foreign Operationsin Africa by Honorable Allen J. Enender,
United States Senator frorn the Çtate of Louisiana (Washington:
U.S. Government Printing Office-Cornmittee Print, 1963),
pp. 13 and 121.
VIII.Books and Pamphlets
A. AUTHORS AXD TITLES
I.Anderson, R. E., Liberia: America's African Friend (Chape1
Hill: The University of North Carolina Press, 1952), p. 136.
2.Batten, T. R., Problems of African Development, 2 Parts
(London: Oxford University Press, 1954) Part 1,Land and
Labour, p. 23.
3.Bauer, P. T. and Yamey, B. S., The Economics of Under-
develoeedCountries (Cambridge: University Press, Digswell
Place, James Nisbet & Co.Ltd., 1g60),p.46.
4.Buchanan, N. S. and Ellis, H. S., A+#ronches fo Economic
DeveEo$nzent(New York: The Twentieth Century Fund,
1958)~ ~0.7.
5. Carey Jones, N. S., The Pattern of a Dependent Ecolaomy,
The National Income of British Honduras (Cambridge
University Press, 1g53)p.121.
6. Carter, G. M. (Ed.), African OlzeParty States (New York:
CorneIlUniversity Press, 1962),p378466 SOUTH WEST AFRICA
7, Clark, C., G~owlhmanshifi (Published for the Institute of
Economic Affairs by Barrie and Rockliff,1g61),p. 51.
8. De Kiewiet, C. W., The Anatomy of South Africalr Mzsery
(London: Oxford University Press, 1956),pp. 49 and 54-55.
g. Enke, S.,Ecorromicsfor Development (Prentice Hall, Inc.:
Englewood Cliffs,N.J., 1963).p. 441.
IO. Fagan, W. A., Our Respnnsibility: A Discussion of South
Africa'sRacial Problems (Stellenbosch: Die Universiteits-
Uitgewers en -HoekhandeIaars Edms. Upk., 19601,pp. 75-76.
II. Frankel, S. W., The Economic Impact on Under-dmeloped
Sociefie(Oxford: Basil Blackwell, 1953).p. 76.
12. Lord Hailey, An African Suniey: Revised 1956 (London:
Oxford University Press, 1957) pp. 764. 1314, 1379, 1380,
1381 and 1387.
13. Hance, W. A., African Econmic Developmenl (New York:
Harper & Brothers, 1958) p. 238.
14. Hempstone. S., TheNew Africa (London: Faber and Faber,
1961)JP. 457.
15. Hirschrnan, A. O., The Strategy O/ Ecanomic DeveEopmnt
(New Haven: l'ale University Press, 1g60),pp. 183-184.
16. Hunter, G., The New Societiesof TroPical AJrica (London:
Oxford University Press,1962), pp. 201 and 202.
17. Jesman, C., The Ethiopian 13aradox (London: Oxford
University Press,1963),p. 4.
18. Kimble, G. H. T., Trofiical Africa, z Vols. (New York:
The l'wentieth Century Fund, rgbo), Vol. 1, Land and
Livelihood,p.600.
19. Lipsky, G. A.,Ethiopia: Its People,Its Society, Its Culture
(Kew Haven: Hraf Press, 1962), pp. 270,272-274 and 280.
20. Little,1.M. D., Aid to Africa[An Appraisal of U.K. Policy
forAid to Africa south of the Sahara] (Oxford: Pergamon
Press,1964),p.4.
21. Luther, E. IV.,Efhiqbla Today (Stanford: Stanford Univer-
sity Press1958),p.118.
22. Millikan,M. F. and Blackmer, D. L. M. (Eds.),The Emerg-
ing Nations:Their Growth and United States PoIicy (Boston:
Littic, Brown and Company, 1g61),pp. 23,98 and 142.
23. Smith, P. (Ed.), Africa in Transition (London: StapIes
Printers Limited,1958),p. 39.
24. Simpson, C. L.. The Spnbol of Liberia [The Memoirs of
C. L. Simpson, former Liberian Ambassador to Washington
and to the Court of St. James's] (London: The Diplomatic
Press and Publishing Company, 1g61),p. 247.
25. Taylor, W. C., The Firestane Operations in Liberia pifth
Case Study in an N.P.A. Series on United States Business
Performance Abroad] (Washington: National Planning
Association,1956),pp. 35-36,67 and 68.
B. TITLES
I. The Economic Deuelofimentof Kenya, Report of a Mission
Organized by the International Bank for Reconstructionand
Development at the Request ofthe Governments of Kenya
and the United Kingdom (Baltimore: The Johns Hopkins REJOINDER OF SOUTH AFRICA 467
Press, for The International Bank for Reconstruction and
Development, 1963),pp. 37and 47.
2. The Econort~icDeveloprnent of Tanganyika, Report of a
Mission organized by the International Bank for Recon-
struction and Development at the request of the Govern-
ments of Tanganyika and the United Kingdom (Baltimore:
The Johns Hopkins Press, for The International Bank for
Reconstruction and Development , 1g61) p. 347.
3. Ecmomic Development O/ Uganda, Report of a Mission
Organized by the International Bank for Reconstruction
and Development at the Request of the Government of
Uganda (Baltimore: The Johns Hopkins Press, for the
International Bank for Reconstruction and Development,
1962),pp.23-24and 38.
4. Local Authmitdes 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
Xon-European Affairs in Southern Africa on 17 September
1956 (Pretoria: The Government Printer, 1957) pp. 10-12.
5. The ShorterOxford Ertglish Dictiolzaryon Histovical Princi-
ples, Third Edition revised with Addenda, rev. and ed.by
C.T. Onions (Oxford: The Clarendon Press, 1959) p,.2243.
6.A Survey of Race Relations in South Africa 1961, compiled
by Muriel Horrell (Johannesburg: South African Institute
Of Race Relations, 1962),p. 219.
IX. Articles
A. AUTHOR AND TITLES
r.AIlen, V. L., "Trade Unionism in East Africa", Fwe Labour
World, No. 143 (fiIay rgbz)pp.164-166, at p.165.
2.Banghart, M.D., "South Africa Offers Great Opportunities",
Buntu, Vol. IX, No. 4 (Apr.rg62),pp. 225-230, at p.227.
3. Barber, W.J,, "Economic Rationality and Behavior Patterns
in an Underdeveloped Area: A Case Study of African
Economic Behavior in the Rhodesias", Economic Develop-
ment alzd CulturalChange, Vol. VIII, No. 3 (Apr. 1960),
pp. 237-251 atp. 251.
4. Black, E. R., "How the World Bank is helping to deveIop
Africa", Optima, Vol. VIII, No. 3 (Sep. 1958), pp. 105-112,
at p.107.
5. dlArchimbaud, D., "L'Afrique du Sud devant l'Opinion",
La RevueFrartçaise, No. 139 (Apr.rg62), pp.rg-19, at p. 19.
6. Eiselen, W. W. M., "Hannonius multi-cornmunit y develop-
ment", Optima, Vol. g, No. 1 (Mar. 1959) p,p. 1-15, at
pp.8 and IO.
7.Elkan, W., "Migrant Labour in Africa South of the Sahara
-6. The Persistence of Migrant Labour", Inter-African
Labour Insdz'tzcteBulletin,Vol. VI, No. 5 (Sep. 19591p ,p.
36-43, atp.42.
8. Logan, R. F.,A Study ofConditionsin S.W.A. Relatingto the
I~digenous Peoples (1962), pp. 12 and 22. (Unpublished.)
g. Louw, M. S. and Sadie, J. L.,"The Dynamics ofSeparate
Development", SouthAfrica, The Road Ahead, Spottiswoode. SOUTH WEST AFRICA
H. (Ed.) (Cape Town: Howard Timmins, Nov. 1960).
p 95-107,at pp. 100-102.
IO. OT lt', A., "International Migrationsin AfricaSouth of the
Sahara". Mipyatton News, 12th Year, No. 6 (Nov./Dec.
19G3),pp. 5-1 8tpp. 8and g.
II. Randail. C.. "South Africa needs Time", Tke Reader's
Digest, Vol. 8(Oct. rg63), pp. 45-49, ap. 4j.
12. Ropke, W., "Südafrika. Versuch einer Würdigung", Schwei-
zer~Mowtshejle, No. z, 44th Year (May 1964), pp. 97-112,
atpp. IOI and 108.
13.Schneiter, E., "Foreign Labour in Switzerland", EFTA
Bulletin (Dec1963), pp. 8-12at p.8.
14. Solomon, M. D., "Education in Liberia", ScienceEducation,
Vol. 43, No.3 Apr. 1959).pp.221-227, at p. 222.
15. Steenkamp, \d . F. J., "Bantu Wages in South Africa",
The South African Journ-Z of Economics, Vol. 30, No. 2
.(June 1962), pp. 93-118, at pp. 96 and roo.
16. Stent, G. E., "Rligrancy and Urbanization in the Union of
South Africa", Africa, Vol. XVIII, NO. 3 (July 1948),
pp. 161-183,at p.183.
17. Van der Merwe, P. J., "Die ~antoe-Arbeidsiag in die
. Republiek van Suid-Afrikn", Bantzt, Vol. I,X, No. 4 (Apr.
1962) pp. 210-218,at pp.215-216.
18.Watson, W., "Migrant Labour in Africa South of the Sahara
-2. Migrant Labour in Detribalization", Inter-African
Labwr Institut6 Bulletin, Vol. VI, No. z (Mar. rgsg), pp.
8-33,at p. 30.
B. TITLES
.. "In a Nut Shell", Bants, Vol. VII, No. 8 (Aug. 1960), p. 482.
X. Newspapers
I. CapeArgus, 12 Sep. 1958.
2. DagbreekenSondagwws, 20 Sep. 1964.
3. Financial Mail, 13 Dec. 1963, Vol. X, NO. 15, p. 887.
4. TheGernzanTribune (Third Year, No. 131).3 Oct. 1964.
5. ,TheNatal Mercury,20 Aug. 1964.
6.Szénday Exflress,rg Nov. r964.
7. Die Transvaler, 2Aug. 1961.
8. The WindhoekAdvertiser,5 July1960.
PART III: SECTION 1
1. League of Nations
Minutes of fhe permanent Mandates Commission, sess., III, 1923,
pp. 105,'106and 293; IV, 1924,pp. 62,63,64 and 154..
II. United Nations
A. GENERAA LSSEMBLY
.CornmitteeonSoufhWest Africa
G.A., O.R., NiîzfhSess., SupplNo. 14 (A/2666),p.25.
G.A., O.R., Thirteenth Sess., Suppl. No.12 (A/3906),pp. 22
and 23. , . REJOINDER OF SOUTH AFRICA 469
B. ECONOMI CND SOCIAL COUNCIL
I. SocialCommission
U.N. Doc. E/CN.5/33z7 STJSOAJ39,International Suniey
of Programmesof SocialDevelofiment(1959),p. 170.
2. CouneilDocument
Ecosoc.,O.R., Sixleenth Sess., SufifilNo. 13, Report of
theAd Hoc Cornmitteeon Forced Labour, pp. 140-143.
(This document isalso No.36 in the Studiesaad,Reports
(New Series)of .thInternationalLabour Office.)
111. Union ofSouth Africa and Republic of South Africa
. A. REPORT OF COMMISSIONS
R.P. No. 1211964,Re@& of Commission of EnqzriryinhoSolath
Wesf Africa Agairs 1962-1963, pp. 79, 93, 95, 105. 109,
IIO and III.
B. LEGISLATION
Statutes
Act No. 67 of 1952, Natives (Abolition of Passes and CO-
ordinationof Documents) Act, 19-52in Statutes of the Usion
of SoruthAfrica1952,pp. 1013-1031.
IV. South West Africa
A. REPORTS OF COMMISSIONS
Report of the Native Reserves Commission (S.W.A.), 8June
1921,p.17 (unpublished).
B. LEGISLATION
I.Proclamations
No. 25 of 1920, Vagrancy Proclamation, 1920 in.The Laws
ofSozltk WestAfrica 1915-1922Vol. 1,pp. 280-286.
No. II of 1922, Native Admirtistration ProcZamation1922
in The Laws of Sozrth West Africa 1915-1922, Vol. 1,
PP.749-754.
No. 24 of 1935,'Native Administration Amendment ProcEa-
malion, 1935 in The Laws of Sozcth West Africa 1935,
Vol. XIV, p. 140.
No. 56 of 1951, Natives (Urban Areas) Proclamafio?~ 19.5'1
in The Laws of South Wesf Africa 1951, Vol. XXX, pp.
90-170.
2.GovernnzentNotices
No. 68 of rgz4 in The Laws of South West Africa 1924,
Vol. III, pp. 57-63.
NO. 121 of 1952 in The Laws of South West Africa 1952,
Vol. XXXI, pp. 834-836.
No. 65 of 1955 in The Lazus of South Wesf Africa Ig55,
Vol. XXXIV, pp. 750-788.
V. Books
A. AUTHOR SND TITLES
Lord Hailey, An African Suruey: Kevised 1956 (London:
Oxford University Press, 1957)~pp. 764 and 1387.47O SOUTH WEST AFRXCA
B. TITLEÇ
International Commissionof Jurists, South A/rica and theRwle
ofLaw (Geneva, 1960) p,31.
PART IV
1.League of Nations
A. Minutes of thePermanent MaltdatesCowmission, sess.III, 1923,
p. 196; IV, 1924,p. 68; VI,1925 ,. g; IX, 1926,p. 147; XIV,
1928,pp. 127and 149;XV, 1929p p. IIOand 121; XVIII, 1930,
PP 34 and 147-148;XIX, 1930,p. 27;XXII, 1932,PP.133,142
and -47; XXIV, 1933, p. 84; XXVII, 1935, p. 170; XXXI.
1937, p. 135XXXV, 1938,p. 61.
B. OTHER
I.Covenant of the League of Nations.
2.British Mandate for East Africa (Tanganyika Territory).
3. hlandate for Palestine.
4. Mandate for Syria and the Lebanon.
II. United Nations
GENERAA LSSEMBLY
I.Resolzctions
1702 (XVI), 19 December 1961 in G.A., O.R., Sixteenth
Sess., Sufifil. No. 17 (A/g~oo),pp. 39-40,
1703 (XVI), 19 December 1961 in G.A., O.R., Sixteenth
Sess., SufiPl. No. 17(A/~Ioo),pp. 40-41.
1805 (XVII), 14 December, 1962 in G.A., O.R. Seventeenth
Sess.,SecpplNo. 17 (A/5217),pp. 38-39.
2. Plenary Meetings
G.A., O.R., Sixteenth Sess., 1oS3rd Plenary Meeting, p. 1106.
3. Fourth CommitteeMeetings
G.A., O.R. S,ixteenth Sess., Fm4rtCmm., 1247th Meeting,
p. 588; 1248th Meeting,p. 591.
4. CommitteeONSouth WestAfrica
G.A., O.R., FoltrteenthSess.,Sufipl.12o(A/~I~I),p.12.
III. Books
AUTHOR SND TITI,ES
I. Baker, R. S., LVoodvowWilson and World Settlemenf,3 Vols.
(London: William Heinemann Ltd., 1923),VOI. 1,p. 429. .
2. Hall,H. D.. Mandates,DepeladencieandTrusteeship (London:
Stevens and Sons,1948),pp. 67,71,260 and 267-269.
3. Wright, Q., Mandates under the League of Natiuns (Chicago:
University ofChicago Press, 1930).p. 472.
PART V
1. League of Nations
A. OficialJoz~rnal1920(No. 6),p. 337.
B. Minntes of thePermanent MatadatesCorwtission, sess. II1922, REJOIXDER OF SOUTH AFRICA 471
p. 86; III, 1923,pp22 and 2~2-223 ;V,1924,p. 190;VII, 1925,
pp. 52-61;IX, 1926,p.34;X, 1926,p. 22; XI, 1927,pp.204 and
205; XXVI, 1934,pp. 50-51, 163, 164, 165 and 166; XXXVI,
1939,p. 281.
C. OTHER
Mandate for German South-West Africa.
II, UnitedNations
GENERAL ASSEMBLY
CornmitteeonSoutlzWestAfrica
G.A.,O.R. ,leventhSess.,Supfil. N12 (A/~I~I),p.XI.
III. Union of SouthAfrica and Republiof South Africa
A. REPORT OF CO~IMISSIOXS
R.P. No. 1211964,Report of the Commission oiEnqrciiy into
South West Africa Aflairs 1962-1963,pp. 57 and 61.
B. LEGISLATIOS
I. Statutes
Act No. 49 of 1919,Treaty of Peace andSouth West Africa
Mandate Act, 1919in The Laws of South West Africa
1915-1922,Vol. 1,pp.10-12.
Act No. 23 of 1949,Soulh-West Africa Agairs Amendment
Act, Ig49in Stalz~lesof the Union of South Airica Igdg,
pp.178-196.
Act No. 44 of 1949,South African Citizenshi9 Act, 1949 in
Statules of the Ulzionof50Africa '949, pp.414-452.
Act No. 56 of 1954, Soufh West Alrzca ATatzveA#azrs Ad-
ministration Act, 19j4in Stattrtes of the Ugiionof South
Africa1954,pp. 559-545.
2. ProcEamations
No. 147 of 1939, Eastern Caprivi Zipfel Adminisiralion
Proclamation,1939 in The Laws of Soufh WestAfrica 1939,
Vol. XVITI,pp.28-30.
IV. Books
AUTHOR AND TITLE
r. Black,H. C., Black'sLaw Dictiomvy (St. Paul, Minn.: West
Publishing Co., 1951),p. 1568.
2. Wright, Q., Mandates under the Leagt.deof Nalions (Chicago:
University of Chicago Press, 1930).pp. 206-207.
V. -4rticles
AUTHOR AND TITLE
Evans, L.W., "The General Principlesgoverning the Termination
of a Alandate", The American JourmE of International Law,
Vol. 26, No. 4 (Oct. rg32), pp. 735-758,app. 739 and 749- TABLE OF CASES ClTED
I. Mauromatis Palestine Concessions, Judgment No. 2, 1924,
P.C.I.J.,SevzesA, No. 2, at pp.17-19.
2. CustomsRégimebdweenGermanyand Austria, AdvisoryOpinion,
1931, P.C.I.J., Series AJB, p. 37, at pp. 43 and 49-52.
3. Minorily Schoolsi.n Albania, Aduisory Opi~zion,I935, P.C.I.J.,
SerzesAI3,No. 64,pp.17 and 19.
4. Diversion of Water from the Meuse, Judgment, 1937, P.C.I.J.,
SeviesAIB, No. 70.
II. INTERNATIO K AULRTOF JUSTICE
I. International Stlzlzls of South West Africa, Advisory Opinion,
I.C.J. Reports1950p ,. 128,at pp. 133and 165.
2. Internatio~$alSfatzrs of South West Africa, Pleadings, Oral
Argecms, Doczrmsnls,pp. 276-277.
3. Asyluwz,Judpent, I.C.J. RePorts I950, p. 266, at p. 320.
4. Fisheries,Judgment,I.C.J. Reportsrg51p ,. 116,at p. 131.
5. Righfs of NationaZsof the United States of Americain Morocco,
Judgment, I.C.J. Reports1952, p. 176,at p. 189.
6. Minquiers and Ecrehos,Judgment, I.C. J. Reports1953, p.47, at
7. CertairzNorwegian Loans, Jzbdgment,I.C.J. Reports 1957 ,. 9,
8. Rzght of Passage ovevIndiagzTerritory, Merits, Judgment, I.CJ.
Reports 1960 p,.6, ap. 37.
9. Temple ofPreah Vihear, Meïits, Judgment, I.C.J. Reports 1962,
p. 6, app. 40,63-64 and 143.
IO.CertainExpensasof the United Nations (Article 17,fiarugraph 2,
of the Charter), Advisory Opinion, I.C.J. Reports1962, p. 151,
at pp. 1.59182,184-185.186-187 and Igr.
II. South West Africa, Preliminary Objections, Judgmltt, 1.C.J.
Re$orts 1962, p. 319,atpp. 329,333,338.345.468,472,528-529
12.Northern Cameroorts,Judgnzent, I.C.J. RePorts 1963, p.15, at
pp. 38, 76-91, 111-117, 119-127,142-149, 152 and 157-162.
13. BarcezonaTraction, Light and PowevConlpany, Limited, Pre-
liminary Objections,Judgwent, I.C.J.Refiorts1964, p. 6,at pp.
37)38-39,6~~94-95~96,140 and 144-145.
III. AUSTRALIA
Arthur Yates and Co-fiany Pro9rietary Limiled v. The Vegetable
SeedsCornmitteeandOthers,1945-1946~72C.L.R. p. 37, at pp. 67-68, REJOIKDER OF SOUTH AFKICA 473
IV. PALESTINE
Attorney-GeneraE v.Abraham Altschuler asquoted inMcNair, A. D.
and Lauterpacht, H. (Eds.), Annual Digest of Public IfiternationaE
LawCases,1927-192 (8931)~pp.55-56.
I. Rex v. Christian, 1924A.D. p.IOI etseq.
2. Van Ryn Wine and Spirit Co. v.Chandos Bar, 1928, T.P.D.
P. 417,at PP. 423-424.
3. Rex v. Magosane and Otlzers, 1937 Griqualand West Local
Division,pp. 47 ff.
4. Rex v. BZom,1939 A.D. p.188, at pp. 202-203.
5. Wilzter v. Minister of Defence and Others, 1940 A.D. p. 194.
at pp. 197-198.
6. Du Plessisv.Minister ofJustice,1950 (3) S.A. pp. 579 ff.
7. Rex v. Ramakalz, 1959 South African Law Reports, Part 4,
pp. 642 ff.
VI. UNITEDKINGDOM
I. GeneralAssembly of Free Churchof Scotland and Others v.Lord
Overtounand Others, 1904 A.C. p. 515 ,t p. 695.
2. Rex v. Brighton Corporation: Ex fade Shoosmith, 1907, Vol.
XCVI, L.T.R. p. 762,at p. 763.
3. Jerusalem-Iu8a District Governor and Anodher v. Suleiman
Murra and Others,1926A.C. p. 321, at pp. 327and 328.
VII. UNITED STATES OF AMERICA
Brown V. BOUY~ O/ Edtdcatio~tof Topeka, 347 U.S. 493, in United
States Supreme Court Reports, Lawycrs' Edition, Book 98
(19.54)PP.880 ff.
Parts III-VI