Abbreviated reference:
I.C.J. Pleadings, South West Africa,
Vol. V
Référenceabrégée:
C.I.]. Mémoires,Sud-Ouest africain,
. .
vol. V
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N° de vente: 312All rights reserved by the
International Court of Justice
Tous droits réservés par la
Cour internationale de Justice SOUTH WEST AFRICA CASES
(ETHIOPIA v. SOUTH AFRICA;
LIBERIA v.SOUTH AFRICA)
AFFAIRES DU SUD-OUEST AFRICAIN
(ÉTHIOPIE c. AFRIQUE DU SUD;
LIBÉRIA c. AFRIQUE DU SUD) INTERNATIONAL COURT OF JUSTICE
PLEADINGS, ORAL ARGUMENTS, DOCUMENTS
SOUTH WEST AFRICA CASES
(ETHIOPIA v. SOUTH AFRICA;
LIBERIA. SOUTH AFRICA)
VOLUME V
1966
COUR INTERNATIONALE DE JUSTICE
MÉMOIRES, PLAIDOIRIES ET DOCUMENTS
AFFAIRES DU SUD-OUEST AFRICAIN
(ÉTHIOPIE c. AFRIQUE DU SUD;
LIBÉRIA c. AFRIQUE DU SUD)
VOLUME V'
PRINTED IN THE NETHERLANDS The present volume contains the Rejoinder (Parts I, II and
Sections A-E of Part III) filed in the South West A/rica cases.
The proceedings in these cases, which were entered on the Court's
General List on 4 November 196o under numbers 46 and 47, were
joined by an Ortler of the Court of 20 May 1961 (South West A/rica,
Order of 20 May z96r, I.C.J. Reports r96r, p. 13). Two Judgments
have been delivered, the first on 21 December 1962 (South West
A/rica, Preliminary Objections, ]udgment, I.C.J. Reports r962,
p. 319), and the second on rS July rg66 (South West A/rica, Second
Phase, Judgment, I.C.]. Reports r966, p. 6).
The page references originally appearing in the pleadings have
been altered to correspond with the pagination of the present
edition. Where the reference is to another volume of the present
edition, the volume is indicated by a roman numeral in bold type.
The Hague, 1966.
Le présent volume reproduit la duplique (rre et ze parties et
sections A-Ede la 3e partie) déposéedans les affaires du Sud-Ouest
africain. Ces affaires ont étéinscrites au rôle généralde la Cour
sous les n° 46 et 47 le 4 novembre r96o et les deux instances ont
étéjointes par ordonnance de la Cour le 20 mai 196r (Sud-Ouest
africain, ordonnance du 20 mai r96r, C.I.J. Recueil r96r, p. 13).
Elles ont fait l'objet de deux arrêts rendus le 21 décembre r962
(Sud-011est africain, exceptions préliminaires, a"êt, C.I.J. Recueil
r962, p. 319) et le 18 juillet 1966 (Sud-Ouest africain, deuxième
phase, a"ét, C.I.]. Recueil r966, p. 6).
Les renvois d'un mémoire à l'autre ont étémodifiés pour tenir
compte de la pagination de la présente édition. Lorsqu'il s'agit
d'un renvoi à un autre volume de la présente édition, un chiffre
romain gras indique le numéro de ce volume.
La Haye, r966. CONTENTS-TABLE DES MATIÈRES.
PART 1. APPLICATION INSTITUTING
PROCEEDINGS AND PLEADINGS
PREMil~RE PARTIE. REQUETE INTRODUCTIVE
D'INSTANCE ET MÉMOIRES
SECTION B. PLEADINGS (continued)
SECTION B. MÉMOIRES (suite)
7. Rejoinder filedby the Government of the Republic of South Africa
Page
List of abbreviations . . 1
Part 1. General introduction . 3
Annex to Part I . . . . S
Part II . . . . . . . . . . 13
Chapter 1. lntroductory . . . . . 13
Chapter "IL The fou.ndations ·ofRespondent's legal argument. 15
A. General . . . . . . . . . . . . . . . . . . . . . 15
B. Effect of the prcvious Advisory Opinion and effect of the
Judgment and Opinions on the Preliminary Objections. . 15
C. Origin and contents of the Mandate . . . . . . . . . . 16
I. Whether the mandate system "represented a victory
forthe opponents of the principle of annexation". . . 16
II. Whether Respondent was obliged in terms of the Man
date to lead the inhabitants of the Territory towards
eventual self-determination . . . . . . . . . . . . 17
III. Whether the mandated territory possessed a separate
international status. . . . . . . . . . . . . . . . 18
IV. Whether the "sacred trust" and "tutelage" principles
gave rise to legal obligations . . . . . . . 19
Chapter III. The Mandatory's procedural obligations . . . . . 23
A. Applicants' approach to the issue . . . . . . . . . . . 23
B. The meaning of. or implications in, the mandate documents 31
1. The nature and implications of the Parties' respective
attitudes . . . . . . . . . 31
IL Chapter III of the Reply . . . . . . . . . 36
III. Chapter VI of the Reply. . . . . . . . . . 39
The general tenor of Chapter VI . . . . . . 39
Summary of Applicants' apparent contention 41X SOUTH WEST AFRICA
Page
Fiduciary institutions in municipal law . . . . . . . 42
The analogy between the international mandate and
municipal fiduciary institutions 45
Further authorities quoted by Applicants . . . . . . 46
Conclusion . . . . . . . . . . . . . . . . . . . 47
IV. The "organized international community" as described
by AppJicants . . . . . . . . . . ·. . . . . . . . 49
The relationship between the "organized international
community" and the League of Nations. . . . . . 49
Th~ powers and _fu1,1,ctiono sf the "organized interna-
t10nal commumty . . . . . . . . . . . . . . . 50
The co_m~~sition of the "organized international com-
mumty . . . . . . . . . . . . 51
Conclusion. . . . . . . . . . . . 52
C. The events during the years 1945-1946. 53
D. Conclusion . . . . . . . . . . . . . 57
Chapter IV. The lapsc of the Mandate as a whole. 58
A. General . . .... ·..... : . . . . 58
. .
I. The purport of Respondent's contention. 58
· II. Applic·ants' reply to Respondent's contention 67
·III: Conclusion. . . . . . . . . . . . . . . . 84
B. The c~mpromissory clause in Article 7 of the Mandate 85
1. Introductory. . . . . . . . . . . . . . . . . 85
II. The scope and purpose of the compromissory clause. 86
·III. The effect of the 1950 Advisory Opinion and the 1962
Judgment on the Preliminary Objections 97
IV. Conclusion. 99
Part III. . . . . . 100
Section A. General roo
I. lntroductory. 100
II. The legal basis of Applicants' charges . roo
III. Applicants' case regarding the Coloured and Baster
group;, . . . . . . . . . . . . . . . . . . . . . roS
IV. The signifi.cance to be attached to reports and resolu-
tions of United Nations Organs and Agencies. . . . . 112
V. References to other countries, including the applicant
States and South Africa. . . . . . . . . . . . . . rr5
VI. Summary of certain general tapies . . . . . . . . . rr7
Section B. Applicants' alleged norm of non-discrimination
or non-separation. . . . . . . . . . . . . . . . . . . . 119
The United Nations Charter . . . . . . . . . . . . . . . 131
The Constitution of the International Labour Organisation. 132
Conclusion. . . . . . . . . . . . . . . . . . . . . . . 141 CONTENTS XI
Page
Section C. The legal basis of Applicants' charge that Respondent's
policiesand conduct in fact fail to promote well-being and
progress. . . . . . . . . . . . . . . . . . . . . . . . 142
A. Introdùctory . . . . . . . . . . . . . . . . . . . . 142
B. \Vere the obligations under Article2, paragraph 2,intended
·to be justiciable? .. ·. . . . . . . . . . . . . . : . 143
C. On what legal basis, could a court determine alleged viola-
tions of Articl_'.paragraph 2, of _theMa,ndate?. . . . . 157
Section D: Introduction to the treatment of the factual aspects
of Applicants' charge . . . . . 175
Section E . . . ·. . . . . . . . . . . . . . . . . . . . . 178
Chapter I. Analysis of the issues . . . . . . . . . . . . . 178
Chapfer'II. Respondents' policies: origins and early develop-
.ment. . . . . . . . . . . . . . . . . . . . . . . . . . . 182
Chapter III. Respondent's policies: co"mparison with other
countries and territories . . . . . . . . . . . . . . . . 185
·A. Encouragement of meaningful Native participation in
government and administration . : . . . . . . . 187
·B. Establishment of univcrsal suffrage . . . . . . . 189
C. The treatment of a territory as an integrated unit . 193
Annex I: Algeria . . . . . . . . . . 202
Annex II: Cameroon Federal Republic 203
Annex III: Congo (Leopoldville) ·. 205
Annex IV: Ghana . . . . . . . 208
Annex V: Kenya. . 212
Annex VI: Nigeria . 216
Annex VII: Rwanda 221
Annex VIII : Sudan . . 224
A_nnexIX: Tanganyika . 227
Annex X: Togo . . . . 228
Annex XI: Zanzibar . . . . . . . . . . . . . . 229
Annex XII: Central African Federation of the Rhodesias and
Nyasaland. ·. . . . . ·. . . . 23r
Annex XIII: India and Pakistan. 235
Annex XIV: Cyprus . . . . . . 237
Annex XV: Great Britain . . . . 239
Chapter IV. Respondent's policies: post-war adjustments. 242
Chapter V. Respondent's general policy: attacks thereon by
·Applicants. . . . . . . . . . . . . . . . . . . . . . 248
A. The charge of mal a fides as now formulated. . . . 248
B. Certain facts said to be "decisive and undisputed". . . 250
·C. Historical background in South Africa itself . . . . . 254
D. The allegation that in South West Africa, as in South
Africa itself, "a plural or multi-racial society is a fact"256
E. The alleged unfaimess of the allocation of land proposed
by the Odendaal Commission . . . . . . . . . . . . 267XII SOUTH WEST AFRICA
Page
F. Consultations with, and real wishes of, the Native groups 281
G. Applicants' allegations regarding "fostering" of tribalism291
H. Migratory labour-as an alleged consequence of the
homeland system, and the evils thereof. . . . . . . . 304
I. Philip Mason's suggestion of perpetuation of measures
of discrimination . . . . . . . . . . . . . . . , . 306
J. Mason's suggestion that the white population in South
West Africa is to be taken into account for a transitional
period only . . . . . . . . . . . . . . . . . . . . 308
K. Incidental matters referred to in the Reply. . . . . . 310
Chapter VI. Judgments of qualified persons with first-hand
knowledge of South Africa and South West Africa 325
A. Introductory . . . . . . . . . . . . . . . . 325
B. Political partiesand policies in South Africa . . 326
C. Intellectual societies interested in race relations . 331
D. The Churches. . . . . 340
E. Authors and joumalists 357
F. South African Bantu . 360
G. South African Coloureds 369
H. South African Asiatics . 374
I. Conclusion . . . . . . 375
Chapter VII. Views of foreign govemments and commentators 378
Chapter VIII. Weight of scientific authority: group preferences
and prejudices . . . . . . . . . . 400
A. General . . . . . . . . . . . 400
B. Group preferencès and prejudices 403
C. Conclusion . . . . . . . . . . 40~
Chapter IX. Weight of scientific authority: "difference"
without "inferiority" . . . . . . . . . . . 409
A. Introductory . . . . . . . . . . . . . 409
·B. Alleged necessary implication of inferiority . . . 410
C. Respondent's attitude in regard to Applicants' state-
ment on modern science . . . . . . . . . . . 412
D. Conclusion . . . . . . . . . . . . . . . . . 419
Chapter X. Weight of scientific .authority: Respondent's
alleged contention of inevitable frustration. . . . . . . 420
A. General . . . . . . . . . 420
B. Views quoted by Applicants 423
·C. Other views. . . . . . . . 427
D. Conclusion . . . . . . . . 428
Chapter XI. Weight of scientific authority: govemment policy
.and group reactions . . . . . . . . . . . . . . . . . 430
A. Introduction . . . . . . . . . . . . . . . . . . . 430
B. The composition and nature of population groups in the
United States . . . . . . . . . . . . . . . . . . . 432
C. The composition and nature of population groups in
South West Africa. . . . . . . . . . . . . . . . . 434 CONTENTS XIII
Page
D. The significance of the differences in the composition
and nature of the population groups in the United States
and in South West Africa. . . . . . . . . . . . . . 434
E. Anti-discrimination legislation in the United States. . 435
F. The extent to which government policy in the United
States has failed to achieve success. . . . . . . . . 436
G. Detrimental results of the federal government's policy
in the United States. . . . . . . . . . . . . . . . 445
H. The views of authorities quoted by Applicants . . . . 450
1. The views of authorities and commentators opposed to
those quoted by Applicants. . . 453
J. Conclusion . . . . . . . . . . 46o
Chapter XII. Conclusion to Section E. 462
Annex to Section E. Historical background to Respondent's
policy of differentiation in South Africa. . . . . . . . 464
A. Introductory . . . . . . . . . . . . . . . . . . 464
B. The inhabitants of South Africa circaI652 . . . . . 464
C. The first contact with the Bantu . . . . . . . . . 469
D. The great trek and the establishment of the republics 47I
E. Unification and its aftermath . . . . . 480
F. Conclusion . . . . . . . . . . . . . . . . . . . 483 7. REJOINDER FILED BY THE GOVERNMENTOFTHE
REPUBLICOFSOUTHAFRICA
LIST OF ABBREVJA TIONS
A.D. Appellate Division of the Supreme Court o(
South Africa.
B.Y.B.I.L. British Year Book of International Law.
Ecosoc. Economie and Social Council.
G.A. General Assembly.
G.N. Govemment Notice.
I.L.O. International Labour Organisation.
L. of N., O.J. League of Nations, OfficialJournal.
O.R. Official Records.
Ord. Ordinance.
P.M.C., Min. Permanent Mandates Commission, Minutes.
Proc. Proclamation.
Rand (unit of currency: South Africa).
R.P. "Republic Publication": Prefix to serial
number which has been allocated to official
publications (usually "bluc books") since
South Africa became a republic on 31 l\lay
Ig6I.
S.A. South Africa.
Sec. Section.
Sess. Session.
Suppl. Supplement.
S.W.A. South West Africa.
U.G. "Union Government": Prefix to serial number
which was allocatcd to official publications
{usually "blue books") of the Government
ofthe Union of South Africa.
U.N. Doc. United Nations Document.
U. of S.A., Pari. Deb. Union of South Africa, Parliamentary Debates.
rg6I U.S.C.C.R.R. United States Commission on Civil Rights
Report, 196r
r963 R.U.S.C.C.R. Report of the United States Commission on
Civil Rights, r963. PARTI
GENERAL INTRODUCTION
I. This Rejoinder is submitted pursuant to the Orders of the Court
dated 20 January 1964 and 20 October 1964, and the filing thereof
marks the closure of the written proceedings in thèse cases.
2. The material presented is divided into seven parts dealing respec
tively with the following matters:
Part I: General introduction.
Part II: Legal argument regarding the lapse of the Mandate and the
supervisory functions of the League of Nations.
Part III: Alleged violations of Article 2, paragraph 2, of the Mandate.
Part IV: Allegcd violations of Article 4 of the Mandate.
Part V: Alleged violations of Article 2,paragraph I, of the Mandate.
Part VI: Alleged violations of Article 7, paragraph 1, of the Mandate.
Part VII: Respondent's submissions.
Sorne of the aforementioned parts are further divided into sections,
the basis of division being explained at the commencement of each such
part.
3. In view of the bulk thereof this Rejoinder is bound in two volumes.
The fi.rstvolume contains Part I, Part II and sections A to E of Part III,
and the second contains sections F to I of Part III and Parts IV to VII.
4, In addition to the material presented by Applicants relative to the
1
issues at present before the Court, the Reply also contains a chapter
headed "History of the Dispute Since 1960". As appears from the con
clusion to the said chapter, Applicants rely on the record of events
recounted therein as excluding any-
"... doubt that persevering effort on the part of the United Nations,
by its responsible organs and agencies, in and through which
Applicants have sought to settle their dispute with Respondent
relating to the interpretation and the application of the provisions
of the Mandate, have been unavailing 2".
In the Judgment on the Preliminary Objections this Court, in holding
that there was in existence a dispute such as contemplated in Article 7
of the Mandate, expressed the view that "no reasonable probability
exists that further negotiations would Iead to a settlement [thereof] 3".
ln so far as Chapter II of the Reply purports to demonstrate that the
alleged dispute betwecn Applicants and Respondent has not been settled
by negotiation, it is not relevant to the issues at present before the Court.
Applicants also submit that the record of events recounted in the said
Chapter "makes clear that the General Assembly's ... finding [i.e., that
Respondent had 'failed and refused to carry out its obligations under the
1 Chapter II, IV,pp. 222-230.
2 IV, P·230.
3 South West A frica, Preliminary ObjectioJsudgment, J.C.J. Reports r96z, 319,
at p. 345·4 SOUTH WEST AFRICA
Mandate'] ... remain[s] valid" 1• The relevance of the subject-matter of
the said Chapter in the respect stated by Applicants is dealt with later in
this Rejoinder 2•
However, in the course of recounting events which have occurred since
1960, Applicants in the said Chapter deal, inter alia, with a particular
matter to which reference was made in the Counter-Memorial 3,i.e., the
visit to South West Africain 1962 of the Chairman and Vice-Chairman of
the Special Cornmittee for South West Africa and declarations made by
them relative to conditions in the Territory. lnasmuch as Applicants'
version of the circumstances surrounding the said visit and the aftermath
thereof is incomplete and distorted, Respondent considers it necessary to
set the record straight in this respect, a matter which will be dealt with
in the Annex to this Chapter.
1
2IV, p. zz.
Part III, sec.A, pa.ras.16-20, infra.
lfl,p. 4- Annex to Part I
1. In proof of the unrcliability of reports and resolutions of organs
and agencies of the Urùted Nations relevant to South West Africa,
Respondent in the Counter-Mernorial 1 referred to General Assembly
resolution 1702 (XVI) of 19 December 1g6r, and in contrast therewith
quoted an extract from the joint communiqué issued after the visit to
South West Africa in 1962 of the Chairman (Mr. Carpio) and the
Vice-Chairman (Dr. de Alva) of the Special Committee for South
West Africa, to which said communiqué fhey were parties. In reaction
thereto Applicants state in the Reply that-
"[t)he actual circumstances surrounding the brief visit (the itinerary
of which was fixed by Respondent); the preparation of the 'joint
communiqué' at the conclusion thereof; the acrimonious, though
temporary, misunderstanding between the Chairman and Vice
Chairman as to both occurrence and substance; and the ultimate
understancling between them, emboclied in a jointly-signed Report
to the Special Committee, are ail fully set forth in a Report of the
Special Committee itself, and, as Respondent concedes, 'to canvass
them fully would be a lengthy process which could serve no purpose
in these proceedings' 2." (Footnotes omitted.)
lt should be observed at the outset that, as will be pointed out with
reference to rnany other parts of the Reply, Applicants in the above
passage quote out of context a statement made in the Counter-Memorial.
What Respondent in fact said, was that to canvass fully the statementsor
conclusionsoff actin thereportsand resolutionsreferredtoin theMtlmorials,
"would be a len~thy process which could serve no purpose in these
proceedings". Th1Sstatement had no application to the circumstances
surrouncling the said visit and its aftermath. It is true, however, that
these circwnstances, as also the reports and resolutions referred to in
both the Memorials and the Reply, are in Respondent's view not relevant
to the issues at present before the Court. The declarations of :Mr.Carpio
and Dr. de Alva were relied upon by Respondent only for the limited
purpose of demonstrating the unreliability of reports and resolutions of
the United Nations organs and agencies relied upon by Applicants.
2. In the succeeding paragraphs Respondent will show that, contrary
to what Applicants suggest, Mr. Carpio and Dr. de Alva had the fullest
opportunity to visit any locality in the Territory; that the joint communi
quéwas in fact issued at the conclusion of their visit with the full know
ledge and approval of both visitors, and that they never reached an
"ultimate understanding" in regard to Mr. Carpio's subsequent repudia
tion of the communiqué.
3. As was stated in the Counter-MemoriaP, J\lr. Carpio and Dr. de
Alva visited the Territory during May 1g62 as giiests of Respondent.
During the first discussion that took place between these two gentlemen
and Respondent's representatives, it was decided that no forrnal record
i II, p. 3.
zIV, pp. 225-227.
jII, p. 4·6 SOUTH WEST AFRICA
would be kept but that the participants should be free to take notes if
they so wished 1•The Prime M.inisterof the Republic made it clear that
the South African Government would be happy to arrange a visit to
South West Africa, where the visitors would be at liberty to see what they
wished and to speak to whomsoever they desired. He outlined the
suggested itinerary briefly, saying that it would not be possible to fit in a
proper programme in only seven days-as Mr. Carpio was reported to
have suggested. He stated that another itinerary, covering three weeks
or longer, could be drawn up, but the Cha.irman and Vice-Chairman
intimated that a ten-day itinerary would satisfy them.
In the course of this discussion Mr. Carpio enquired whether the itiner
ary included a visit to the Caprivi Zipfel, and stated that he did soin view
of the alleged fortifications and military bases in that area. The Prime
Minister replied that no provision was made for such a visit since the
Zipfel was far distant from the rest of South West Africa but that a visit
thereto could be arranged if desired by the visitors 2•
A visit to the Caprivi Zipfel was subsequently included in the itinerary.
The Prime Minister also intimated that if Mr. Carpio and Dr. de Alva
should for any reason wis.hto go to any place not included in the itinerary,
they should requcst their conductor to make the necessary arrangements,
even if that meant prolonging the visit. They did not avail themselves
of this offer; on the contrary, a visit to the Waterberg-East Reserve
scheduled in the itinerary was excluded, and in addition the Chairman
did not proceed from Windhoek to another place which was on the
itinerary, nor did he accompany Dr. de Alva to the Caprivi Zipfel.
4. After the retum of the visitors from the Territory, discus&ionswere
resumed in Pretoria on 24 May rg62. The Prime Minister pertinently
asked Mr. Carpio and Dr. de Alva whether they had noticed any threat
to the peace or any signs of militarization in South West Afnca. Dr.
de Alva immediately replied that he personally had seen nothing to sub
stantiate the relevant charges which had been made by United Nations
organsin that regard. Mr. Carpio initially stated that he could not form
an opinion since he had not visited every important locality in the Terri
tory. Asked to name the alleged centres of militarization Mr. Carpio
mentioned the following places: Ohopoho, the Kaokoveld, Ondang-ua,
the Caprivi Zipfel and Windhoek. It was then pointed out that at least
one member of his party had visited ail these centres, and that no signs
of militarization had been noticed 3•
The Prime Minister remarked that he was concerned about the fact that
the allegation of militarization had not been unequivocally repudiated
by Mr. Carpio. He offered to arrange for impartial observers, e.g., military
attachés of any two local embassies named by the visitors to be sent
immediately to inspect anv of the areas mentioned by Mr. Carpio; such
observers to report directly to the latter. These observers could leave for
South West Africa straightaway, so that it might not be said afterwards
that the South African Govemment had in the meantime removed
evidence of militarization. This offer was, however, not accepted.
1
Notes were in actual fact taken down by several of the South African officiais.
Some of the information C<)ntained in the succeeding paragraphis derived from
th2se notes.
3Vide G.A .,0. R., SeventeenthSess., Fourlh Committee, 1381st Meeting, pp. 339-340.
Vide footnote2, para. 7, infra. REJOINDER OF SOUTH AFRICA
7
The Prime Minister then enquired whether the visitors had encountered
any evidence in substantiation of the charge of extermination or genocide
which had been levelled against the South African Government. Mr.
Carpio replied in the negative.
5. When discussions were resumed on 25 May, it was agreed that a
joint communiqué would be issued after completion of the deliberations,
and that officials on both sides would prepare a draft of such a statement
during the lunch interval.
At the afternoon meeting, the Prime Minister stated that he had learned
with regret that Mr. Carpio was indisposed and could not be present 1•
He enquired if Dr. de Alva would meanwhile proceed with the discussion
of the preliminary draft statement which had been drawn up by the
officials. Dr. de Alva said that he would, but that the text of the document
would have to be put to Mr. Carpio since it was essential that he agree
toit. The draft was then read out and discussed paragraph by paragraph.
Proposais for changes were made by both sides and a new draft was
agreed upon which Dr. de Alva undertook to discuss with Mr. Carpio.
6. When discussions were resumed the next morning, Dr. de Alva drew
attention to two important changes which had been proposed by
Mr. Carpio in paragraphs 3 and 4 of the draft communiqué. Mr. Carpio
had insisted that reference be made in paragraph 3 thereof to the limited
duration of the mission's stay in South West Africa, and that their finding
as to a threat to peace be circumscribed by limiting it to the places
visited and the evidence heard. The Prime l\hnister agreed to accept the
changes with regard to the reference to a "ten day visit", but made it
clear that he understood that the report to the United Nations would
explain that every facility had been given to the visitors to go where they
pleased, and to extend their stay ifthey so wished.
As regards paragraph 4,Dr. de Alva said that Mr.Carpio had requested
that reference be made to the fact that the mission did not have an oppor
tunity to investigate fully the allegation with respect to political prisoners.
It was then agreed to redraft the first sentence of paragraph 4 to meet
this point.
Severa! other minor textual changes were discussed and disposed of.
The Prime Minister then enquired if the text could be regarded as agreed
to by everybody concemed, and Dr. de Alva replied in the affirmative.
7. The relevant portion of the text of the communiqué, as issued on
26 May read as follows 2:
"r. Discussions between Ambassadors Carpio and Martinez de
Alva and the Prime Minister and the Minister of Foreign Affairs
were resumed in the same friendly and frank atmosphere that
characterised the former meetings. Ambassador Carpio expressed
the appreciation of the visitors for ail the arrangements made and
for the free and uninhibited opportunities given to the Vice-Chair
man and himself to meet with all sections of the population of
South West Africa desiring to contact them, and hoped that further
visits could in the future be arranged.
2. In reply to a proposai that further visits by persons connected
1 This was the first occasion dnring the talks on which Ambassador Carpio was
not p:resent.
2 Also issued by the U.N. Office of Informatias G.A.2501, 26 May 1962. SOUTH WEST AFRICA
8
with the United Nations could usefully be arranged, particularly
one by the whole Special Committee for South West Africa the
Prime Minister stated that it would be best to await the issue of
the report of the Chairman and Vice-Chairman and its reception by
the Committee and the General Assembly before considering this
matter further. He added, however, as was indicated in the invi
tation extended to the Chairman and Vice-Chairman, that South
Africa could not be expected to receive a committee with instruc
tions to act contrary to the juridical position of the Republic of
South Africa.
3. At the request of the Prime Minister both the Chairman and
the Vice-Chairman gave their impressions gained during their ten
day visit to the Territory. They stated that in the places visited
they had found no evidence and heard no allegations that there was
a threat to international peace and security within South West
Africa; that there were signs of militarisation in the territory 1;or
that the indigenous population was being exterminated.
4. While naturally a detailed investigation as to the question of
the detention of political prisoners could not be made, the Chairman
and Vice-Chairman noted that no case of detention of political
prisoners had been brought to their attention during their visit.
They have, however, received allegations that a few persans have
been repatriated to Ovamboland or elsewhere because of political
activities. The Prime Minister stated that he would have these
allegations investigated. ,
5. The further discussions dealt with suggestions by both Ambas
sadors to improve relations between South Africa and the United
Nations." ·
8. At midday on 26 May uJ62, Respondent's Foreign Minister paid
a courtesy call on Mr. Carpio at bis hotel. A little later Mr. B. G. Fourie,
at the time Respondent's pem:1anent representative at the United
Nations, also visited Mr. Carpio. During neither of these visits did
Mr. Carpio rnggest that he had in any way dissented from the joint
~ommuniqué. . .
. On Sunday, 27 .May r962, on the advice of his doctors, Mr. Carpio
was ta.ken to hospital where he remained until 3 June. During his stay
in hospital he received the daily newsp;:tpers in which prominence was
given to the joint communiqué. He was regularly visited by Mr. D. B. Sole,
Under-Secretary for Foreign Affairs, who was a participant in all the
discussions. He was also visited by Mr. R. Jones, Deputy-Secretary for
Foreign Affairs. To neither of these persons did he intimate that he was
not a party to the joint communiqué.' It was only at an airport· press
conference on 5 June 1962 when about to depart from South Afrièa that
Mr. Carpio hlnted that he was not responsible for the communiqué.
9. Dr. de Alva has consistently pointed out that both Mr. Carpio and
he approved in totoof the joint communiqué and that it was issued with
the full authority of all parties concemed, including Mr. Carpio.
1A fciotnote to paragrap3 apj:>earedhere which read: "The Chairman and Vice
Chairman were informed by the South African anthorities and noted the existence
of a nine-man military administrative headqnarters in Wmdhoek. There îsalso a
unit of the citizens' force (whlch undergoes trainintwooweeks per annum) with
I7Officers and206 Other Ranks." REJOINDER OF SOUTH AFRICA
9
It is noteworthy that Dr. de Alva mentioned in his letter of 16 July
1962 to the Under-Secretary for Trusteeship and Information from Non
Self-Governing Territories that Mr. Berendsen and Miss Yarrow, the
two United Nations officials who accompanied the visitors to South
Africa and the Territory, actually conveyed to him Mr. Carpio's-
"... full authority to accept the joint communiqué as it had been
drafted, including paragraphs 3 and 4, but with the changes on
which he [Mr. Carpio] had been so insistent .. .1''.
The said officials, while in South Africa, also informed the Press that
Mr. Carvio had been consulted throughout as if he had been present at
the offictal discussions.
During the course of a statement made at the 95th meeting of the
Special Committee on the Situation in regard to the Implementation of
the Declaration on the Granting of Independence to Colonial Countries
and Peoples, Mr. Mburumba Kerina, one of the regular petitioners to the
United Nations regarding South West Africa, made certain serions alle
gations against, inter alios, the aforementioned two officials. This led to a
decision oftheSecretary-General toconduct an enquiry as to the assertions
regarding the rnembers of the Secretariat. An appointed committee ·
carefully examined the matter for a period of more than six months.
Mr. Kerina appeared before the committee, but declined to support his
allegations and refused to answer any questions of the committee. On
receipt of the findings of the committee of enquirv, and after careful
consideration, the Secretary-General came to the conélusionthat "... the
staff members concemed acted throughout in good faith", and he stated
that he was- ,
", .. satisfied that whatever assistance they [l\:lr. Berendsen and
Miss Yarrow] gave to the Chairman and Vice-Chairrnan of the
Special Committee for South West Africa was requested of them and
was given in accordance with the traditions and established practices
of the Secretariat.
Accordingly ... the Secretary-General has determined that the
allegations against the staff members were not well fou2ded and
that, from his point of view, the matter is closed ."
ro. Speaking at the eighth meeting of the Special Committee for South
West Africa on 24 July I962, Dr. de Alva stated that-
"... Mr. Carpio and he had gone to South Africa, not in their
personal c~pacity as the Chairman had indicated, but as officers of
the Comm1ttee.
The Chairman 3 had said that the joint communiqué issued at
Pretoria had corne as a disagreeable shock to the Committee. Such
an adjective could describe only a subjective persona! reaction; he
hoped the Committee would give him an opportunity to discuss the
question of the joint communiqué with the thoroughness it required.
Whether the work accomplished by the mission to South Africa
1 Report of the Special Committee for South West Africa, G.A., O.R., Ssventeenth
Sess., Sup-pl.,. 12 {A/5212),p.20.
z United Nations Secretariat, Information Circulato Members of the Sta.ff from
the Director of Personnel, ST/ADM,SER.A/837, 29 Mar. 1963.
! At that meeting Mr. Arteh of Somalia.IO SOUTH WEST AFRICA
and South West Africa was regarded as a triumph or as a disaster,
it represented a solid achievement .. .1'',
and in commenting on a draft letter under cover of which the Special
Committee for South West Africa proposed to despatch its report to the
"Committee of Seventeen" 2, Dr. de Alva stated at the IJth meeting of
the first-mentioned Committee that-
"... the communiqué existed and had actually been issued jointly
by the South African Government, the Chairman and the Vice
Chairman; consequently, it could not be described ... as an 'alleged'
joint communiqué, nor could it be attributed solely to the South
African Government ... Since the Chairman continued to deny that
he had had any part in the preparation, drafting or publication
of the communiqué, and the Vice-Chairman challenged his position,
the text should refer to the letters they had sent to the Under
Secretary explaining their respective positions 3."
Dr. de Alva continued:
"The Chairman had participated in those conversations; he had
been fully aware of the position and it had been with his consent
that the communiqué had been prepared. Indeed, the Chairman
and the Vice-Chairman had proceeded in full agreement from the
time the communiqué was drafted until it was issued. He personally
was not prepared to alter a single word of the statement to which
he had subscribed .
. . .the existence of the communiqué could not be denied, irrespective
of the Committee's opinion of its contents, and since it had, infact,
been issued jointly by the spokesmen of the South African Govern
ment and by the Chairman and Vice-Chairman, acting in their
official capacity as representatives of the Committee4."
II. The reaction of Mr. Arteh (Somalia) to Dr. de Alva's statement
affords a good example of the degree of responsibility adopted by some of
the United Nations delegates when dealing with questions affecting
South West Africa. Despite the overwhelming weight of evidence known
at that stage, he said that-
"... his delegation regarded the Chairman's statement that he had
had no part in the drafting or publication of the communiqué as an
authoritative statement, and accepted it as official. He therefore
\vished to retain the word 'alleged' before 'joint communiqué' in the
draft letter of transmittal. The Committee should endeavour to be
objective; it should not assume the attitude of a court of enquiry; the
Chairman's assertions should be regarded as final and absolute 5."
(ltalics added.)
I2. At the I4th meeting of a Special Committee on 3 August 1962,
1 U.N., G.A., Special Committee for South West Africa: Summary Record of the
Eighth Meeting, 24 Jnly 1962, U.N. Doc. A/AC.uo/SR.8, p. 5.
2 Special Committee on the Situation with regard to the Implementation of the
De3laration on the Granting of Independence to Colonial Countries and Peoples.
U.N., G.A., Special Committee for South West Africa: Summary Record of the
Thirteenth Meeting, 2 Aug. 1962, U.N. Doc. A/AC.no/SR.13, p. 7.
4 Ibid., p.8.
5 Ibid.,Mr. Arteh was the Rapporteur and atone stage Chairman of the Special
Committee for South West Africa. REJOINDER OF SOUTH AFRICA II
Dr. de Alva, replying to a lengthy statement by Mr. Carpio in which the
latter once more sought to disown the joint communiqué,stated that be
(Dr. de Alva)-
", .. would have been ,villing to give full credence to the Chairman's
explanation if it had not been offered ex post facto. Whatever bis
reasons for not joining in the communiq_ué,the fact was that be
nevertheless had done so and was responsible for that action to the
same extent as the Mexican representative, the only difference
between them being that the one maintained his position while the
other now repudiated 1.''
13. In conclusion attention is drawn to the manner in which the joint
communiqué was eventually dealt with by the Special Committee. At
the 13th meeting of the Committee several members expressed disagree
ment with the letter of transmittal drafted by the representatives of
Somalia and Burma, which in effect ignored the communiqué. The
Norwegian representative wanted all the available documents to be
forwarded to the "Committee of Seventeen" 2• Later l\lr. Borja (Philip
pines) however stated that "[t]he Philippine Govemment would not
permit its Ambassador (M.r. Carpio] to be subjected to a police inter
3
rogation by the Committee" •
At the 14th meeting of the Spedal Committee various members per
sisted in opposing thedraft letter of transmittal, butafter some cursorydis
cussion, the proposai of the Norwegian representative was put to the vote.
In the end the thirdparagraph ofthe draft letter was adopted by 4 votes
to 3•. This meant that the joint communiqué was not included in the
evidence forwarded to the "Committee ofSeventeen" and that it wasnot
considered by the United Nations when resolution 1805 was adopted 5•
14..Many delel{ate~.to the United Nations had, prior to the issue of
the jomt commumque m 1962,concentrated on the three charges concern
ing a threat to the peace, genocide and militarization in South West
Africa. The main charge was that international peace was being endan
gered as a result of the alleged sîtuation in the Territory. No less than
31 delegations had during 1960-1()61made that charge, on which heavr.
refümce was placed because it could be used in the Security Council
as a ground for taking action against Respondent. The admission by the
two emissaries of the United Nations disposed of the main charge, as
also the other two serious charges, against Respondent. Ifthese delegates,
or the members of the Special Committee had the interests of the
inhabitants of the Territory at heart, one would have expected that the
contents of the joint communiquéwould have been a great relief to them.
Instead, but perhaps not surprisingly, the general reaction was that
6
"[t]hat Communiqué had corne as a disagreeable shock ... " •
1 U.N., G.A .,Special Committee for South West Africa: Sununa1-y Record of the
Fourteenth Meeting, 3 Aug. 1962, U.N. Doc. A/AC.110/SR.14, p. 6.
~ Ibid., Summary Record of the Tbirteenth Meeting. 2 Aug. 1962, U.N. Doç.
A/AC.rrn/SR.13, pp. 4-5 and 7.
3 ibid.,p. 9.
• Ibid.,Summary Record of the Fourteenth Meeting. 3 Aug. 1962, U.N. Doi;.
A/AC.110/SR.14, pp. 3-11.
' Vide IV, p. 227.
6 Ibid.,Summary Record of the Eighth Meeting, 24 July 196:z, U.N. Doc. A/AC.
11o{SR.8, p. 3.I2 SOUTH WEST AFRICA
15. A~ already pointed out 1 Applicants take up the attitude that the
communiqué is irrelevant for the purpose of the present proceedings.
They proceed to allege, however, that~
"[w]hat is of relevant, and indeed decisive, significance are their
[Mr. Carpio and Dr. de Alva's] jointly-approved conclusions, based
upon 'what they saw and heard during their visit to the Mandated
Territory .. .' 2".
The fact that these "jointly-approved conclusions" involve that the Terri
tory "has been and continues to be pervaded by the rigorous application
of apartheid" 2 is said to be of "decisive ... significance"; yet the state
ment in the joint communiqué to the effect that the above-mentioned
three serions charges are without substance, Dr. de Alva's maintained
support thereof, and the clear evidence that Mr. Carpio was a party to
the communiqué, are considered to be irrelevant.
The phenomenon of measuring by double standards is, so it seems,
not something peculiar to United Nations organs.
16. The point of immediate importance is that, despite the evidence
of Dr. de Alva and that of the members of the Secretariat in -question,
the Special Committee refused togive recognition to the joint communiqué
to which l\lr. Carpio and Dr. de Alva were parties, for the very reason
that the declarations in the said communiqué relevant to conditions in
South West Africa were in conflict with what the majority of the Com
mittee wished the world to believe.
Respondent submits that there can be no clearer proof of the correct
ness of its submission that no reliance can be placed on reports and
resolutions of organs and agencies of the United Nations regarding con
ditions in South West Africa and Respondent's administration of the
Terri tory.
1Vide para. 5, supra.
21v, p.226. PART II
CHAPTER I
INTRODUCTOR Y
I. The present part of the Rejoinder will be devoted to the issues
arising from Applicants' Submissions r, 2,7 and 8, and, in particular, their
contentions that the Mandate is still in existence, and that Respondent
is obliged to render account to, and submit to the supervision of, the
General Assembly of the United Nations Organization.
2. Respondent's arguments regarding the issues dealt with herein
are contained in Book II of the Counter-1\femorial. ln their Reply,
Applicants do not furnish a self-contained or comprehensive answer to
Respondent's arguments, but pick out bits and pieces with which they
deal in a number of different chapters and annexes. The position is
further obscured by the fact that many of the portions thus &ingledout
for comment are rendered inaccurately or out of context, as will be seen,
and in addition by the fact that the chapters and annexes in which they
are dealt with, contain also other matter not relevant to the issues con
cerning the submissions under discussion.
Thus Applicants commence their treatment of the issues dealt with
herein, in a chapter of their Reply 1 entitled "The Nature of the Man
date". There they deal with "the respective positions" allegedly taken
by the Parties to the present proceedings on "certain key issues"
1
concerning "the nature and essential principles of the Mandate" .
Applicants' contentions in this regard overlap with those in Chapters V
and VI of their Reply, which are concemed respectively with the "Legal
Basis and Legal Nature of Respondent's Obligations towards the
Inhabitants of the Territory" and "Respondent's Violations of its
Obligations towards the United Nations", as well as to a certain extent
with those in Chapter VII, Part B, dealing with Respondent's alleged
"Violations of Article 2 (1) of the Mandate and Article 22 of the Cove
nant". Their Annex S ("Brief Survey of Legal Arguments Previously
Advanced by Respondent, and Dispositions thereof previously made by
this Honourable Court, with respect to Respondent's Obligations toward
the United Nations") although apparently intended as supplementary
to Chapter VI, in fact partly covers the same ground, only, however, to
reach an inconsistent conclusion 2•
3. To avoid as far as possible a similar overlapping, as well as to indi
cate more precisely the aspects on which Applicants have chosen to join
issue wip1 Respondent (and, perhaps more important, the aspects which
they have not seen fit to contest), Respondent proposes in this part, as
in the Rejoinder as a whole, to deal with matters raised in the Reply in
the same order as that adopted in the Counter-Memorial. The further
chapters in this part will accordingly be the following, each being
1 IV, Chap. III, p. 231.
2 Vide Chap. II, para2, infra. SOUTH WEST AFRICA
concemed with the same subject-matter as the corresponding chapter
in Book II of the Counter-Memorial:
Chapter II: The foundations of Respondent's legal argument.
Chapter III: The Mandatory's procedural obHgations.
Chapter IV: The lapse of the Mandate as a whole. CHAPTER II
THE FOUNDATIONS OF RESPONDENT'S LEGAL ARGUMENT
A. General
I. In the present chapter, consideration will be given to issues arising
in respect of matters dealt with in the corresponding chapter of Book II
of the Counter-Memorial, irrespective of where such issues are dealt
with in the Reply 1•Thesaid chapter of the Counter-Memorial was devoted
to a number of different topics, which ail underlie the rest of Respondent's
legal argument, but some of which am otherwise unrelated 2• For the
greater part they are not contested in the Reply. It is accordingly only
necessary to reply herein to the few isolated points on which Applicants
join issue with Respondent.
B. Effect of the Previous Advisory Opinion and Effect of the Judgment
and Opinions on the Preliminary Objections 3
2. In this regard, Applicants state:
"It is in the nature of legal proceedings, and perhaps especially
so of a Proceeding before this Honourable Court, that the parties
are entitled to the fullest opportunity to be heard. Applicants
cannot, and do not, dispute Respondent's privilege to reassert in
a contentious proceeding that the Mandate, and the obligation to
respond to international supervision, have lapsed, even though the
arguments are the same as those twice before considered in I950
and I962 4."
The statement of legal principle contained in the above passage (as
distinct from the assertion that "the arguments are the same as those
twiΠbefore considered"):; is in accordance with Respondent's own
submissions 5,and its soundness can hardly be open to question.
Later, however, Applicants adopta different attitude. There they say:
"... it is subrnitted that the contentions of Respondent in respect
of the lapse of the Mandate, or any of its provisions, are res judicata
by virtue of the Judgment on the Preliminary Objections.
If not res judicala, technically speaking, by virtue of the Advisory
Opinion of I950, they are nonetheless res fudicata within the broad
1 Vide Chap. l, para. 3, supra.
z The varions topics are: a general ontline of Respondent's legal argument in
respect of the lapse of League supervision and the lapse of the Mandate; the effect
oftheprevious Advisory Opinion; the effect of the Jndgment and Opinions on the
Preliminary Objections; the origin il.Ildcontents of the Mandate; and the general
principles applicable in determining whether particnlar provisions of the Mandate
still exist (i.e., the principles of interpretaand implication, and the legal rnles
aflecting relationsbipsbetween States bnt operating independently of their consent,
express or implied).
3 Il,pp. 98-rn3.
• IV, p.52:i.
5 As towhich, vide Chap. III. paras. 4-6and 46-49; and Chap. IV B. para. 14infra. SOUTH WEST AFRICA
meaning of the doctrine, on the basis of the Advisory Opinion. The
rationale of the doctrine is that there must be an end to litigation .
. . . Itis fair to say that Respondent has had its day in Court on
these issues 1."
For the reasons given in.the Counter-Memoria1 2,it is submitted that
Applicants' earlier concession is to be preferred to their second thoughts.
C. Origin and Contents of the Mandate 3
3. Reference was made above to Applicants' allegations regarding
divergent positions supposed to be maintained by the Parties hereto on
"the nature and essential principles of the Mandate" 4• Those of the "key
issues", as singled out by Applicants, which relate to topics dealt with
under the above head in Chapter III of Book II of the Counter-Memorial,
will be considered herein, leaving the remainder for treatment in other
sections of this Rejoinder.
l. \VHETHER THE MANDATE SYSTEM "REPRESENTED A VICTORY FOR THE
5
0PPONENTS OF THE PRINCIPLE OF ANNEXATION"
4. During the latter part of the First World War and in the negotia
tions and discussions preceding the conclusion of the Treaty of Versailles,
certain States (including Respondent) were in favour of the annexation
of certain of the former German colonies. Other States were in favour of
one or another form of international control over all such colonies. In
the result, agreement was reached on the basis of the mandate system 6
as embodied in Article 22 of the Covenant of the League of Nations .
When regard is had only to the facts that all the former German colonies
thus obtained a separate international status as mandated territories
and were made subject to the supervision provided for in the Covenant,
it is correct to say that the mandate system "represented a victory for
the opponents of the principle of annexation" 7• lndeed, Respondent
stated in its Counter-Memorial:
"... it seems clear that the varions proposals which preceded the
Mandate System as actually agreed upon, all proceeded from the
basic principle of 'no annexations', to which effect was to be given
by some form or another of internationcllization of the government
8
or administration of the colonies and territories in question ".
5. On the other hand, when regard is had to the division of mandates
into three classes, and particularly to the content of the C Mandates,
it beco9es apparent that the "full power of administration and legisla
tion" granted to the Mandatories, empowered them in the latter
instance to exercise most of the attributes of sovereignty in the day-to-
1IV, p. 55z.
2Il, pp. 98-103.
3Ibid., pp. 104-r IL
• Vide Chap. I, para. 2, supra.
5IV, p. 23z.
6Vide Il, pp. 9-1 r.
7I, p.33 and IV, p. 232.
a Il,p. I6g.
gExpression used in C Mandates to defi.ne the governmental power exercisable, 0
subject to the mandate, by the Mandatories. Vide, e.g., Art.2 of the Mandate for
German South-\Vest Africa. REJOINDER OF SOUTH AFRICA 17
day administration of the mandated territories. Respondent submits that
the grant of such wide powers resulted in a situation in which C?,,landates
were, in their practical effect, not far removed from annexation 1.
6. Whether in its totality (i.e., taking account of the separate inter
national status of a mandated territory, of the Mandatory's account
ability to the Council of the League of Nations and, on the other hand,
of the extent of the Mandatory's powers of administration and
legislation) a C Mandate could be said to be close to or far removed from
annexation, is a matter of opinion, evaluation or appreciation, and the
answer could largely depend on which aspect ofthe Mandate isemphasized
for the purposes of the subject under discussion. By itself, this question
is not of any importance. What is clear-and this was the point sought
to be made by Respondent-is that when ail aspects are considered, the
mandate system could not fairly be described as "a victory for the
opponents of the principle of annexation" or as a victory for anybody
else 2•In the words of the Counter-Memorial "[a] compromise can hardly
be regarded as a victory for either side" 2•
That the mandate system indeed represented a compromise between
conflicting interests can hardly be doubted. It is in Respondent's sub
mission established not only by the authorities and historical facts
referred to in its Counter-Memorial 3, but also by a further authority
quoted by Applicants (in another context) as saying that the Mandate
for South West Africa-
"... constituted a new institution set up under Article 22 of the
Covenant as an historie compromise between extremely complicated
interests" ~. (Italics added.)
7. As pointed out in the previous paragraph, the extent to which the
C Mandates, taking into account their various aspects, approximated
• to annexation, is in itself of no particular importance. Applicants have,
however, sought to use Respondent's submission that, as far as the
ordinary powers of administration and legislation were concerned,
such approximation was close, to draw unwarranted inferences about
Respondent's attitude in regard to other aspects of the Mandate.
Examples of this wiUbe given in the next succeeding paragraphs.
II. WHETHER RESPONDENT WAs ÜBLIGED rN TERMS OF THE MANDATE
TO LEAD THE lNHABITANTS OF THE TERRITORY TO\VARDS EVENTUAL
SELF-DETERMINATION
8. Applicants suggest that there is an inconsistency between Respond
ent's view that its powers of administration and legislation under the
Mandate approximated to those that would have existed pursuant to
annexation, and acceptance by Respondent of a duty to lead the peoples
of the Territory towards eventual self-determination s. The fallacy in this
reasoning is obvious.
Even full annexation of a territory, and the exercise of complete
sovereignty O\'erit (and a fortiori any situation falling short thereof, such
1 VideIl, pp.9-15 and p. 95 {para. 128).
2I, p. 33 and11,p. r5 (para. 9).
3Il,pp. 10-15.
• M. Palacios, a member of the Permanent Mandates Commission, P./11.C., Min.,
XXVI, p. I64. IV, p. 252.
5
IV,pp. 238-240, 586.r8 SOUTH WEST AFRICA
as one "not far removed from annexation") would clearly not be in
consistent with the recognition of a duty, legal or otherwise, to lead its
inhabitants towards self-determination, self-government or even inde
pendence. ln this regard, very pertinent illustration is afforded by Article
73 of the Charter of the United Nations, in terms of which those Members
of the organization who possessed colonies, undertook "to develop self
government, to take due account of the political aspirations of the peoples,
and to assist them in the progressive development of their free political
institutions". Nevertheless the sovereignty of these members over their
colonies was not, and could not be challenged or disputed.
9.In fact, Respondent has acknowledged in these proceedings that the
Mandate, in requiring the Mandatory to promote to the utmost the
materia1 and moral weU-being and social progress of the inhabitants of
the Territory, thereby embraced, as one of the facets of well-being, the
ideal of politica1 advancement of such inhabitants towards ultimate self
determination .And more recently Respondent, in pursuance of its often
expressed purpose of continuing to administer South West Africain the
spirit of the Mandate, gave special consideration to the manner in which
the objective of self-determination for the peoples of South \Vest Africa
could best be achieved 2•
III. \VHETHER THE MANDATED TERRITORY PosSESSED
A SEPARATE INTERNATIONAL STATUS
IO. A further example of fallacious reasoning on the part of Applicants
(allied with incorrect factual allegations) is found in the supposed relation
ship between Respondent's admitted view that the powers of administra
tion granted by the Mandate were in effect close to those supervening on
annexation, and Respondent's alleged attitude towards the separate
international status of the Territory. Applicants' allegationsin thisregard,
•
and the conclusion they draw therefrom, are found in one paragraph
which reads:
"Respondent's current contention that the Mandate (now asserted
to have lapsed in toto) was, in any event, 'not far removed from
annexation' thus reflects its continuing and long-standing posture of
denial to the Territory of a separate international status. The
conclusion is inescapable that Respondent's purpose and motive
has been, and remains, that of incorporating or annexing the
Terri tory ... 3."
Since 1915 Respondent has been in effective control of the Territory
and has carried on its administration. If, as Applicants say, Respondent's
attitude has been a "continuing and long-standing" one of "denial to the
Territory of a separate international status", then surely there would have
been a completed annexation, real or purported, of the Territory, not
merely "a purpose or motive ... of incorporating or annexing the
Territory" which is, according to Applicants, still being pursued in a
piece-meal and devious manner ~. In fact, as has been shown in the
1Vide IV, p. 70.
2
3Vide ibid.,p.213.
4 IV, p.576.
At IV, p. 591.Applicants allege that implementation of certain of the recom
mendations of the Odendaal Commission "would involve a step toward incor
poration or annexation of the Territory". REJOINDER OF SOUTH AFRlCA r9
Counter-Memorial 1,Respondent has always respected the separate inter·
national status o( South West Africa and continues to do so exactly as ü
the Mandate were still in force.
IV. \VHETHER THE "SACRED TRUST" AND "TUTELAGE" PRINCIPLES
GAVE RISE 1:0 LEGAL OBLIGATIONS
II. Associated with the above instances of faulty understanding or
rendering of Respondent's arguments, and fallacious deductions there
from, isa further assertion by Applicants. They say that Respondent
denies that the "sacred trust" and "tutelage" principles, embodied in
Article 22 of the Covenant, gave rise to legal obligations on the part of
the M.andatory 2, and that Respondent construes the second paragraph
of Article 2 of the Mandate-
"... as not embodying obligations of a legal nature, but as inclicating
merely 'the objective to be pursued by the Mandatory, or the spirit
with which he should beimbued, in exercising bis power of administra
tion and legislation' 3".
Respondent's argument in this regard is later rendered as follows:
''Article 2, paragraph 2, does not ... create ·orembody obligations
of a legal nature, but is assertedly a merely political or moral
exhortation; this argument Respondent seeks to reinforce by refer
ence to the generality of the terrns of the Article 4."
To counter this argument allegedly used by Respondent, Applicants
devote considerable space to establish the self-evident and undisputed
proposition that-
"... the Mandates, including the Mandate for South West Africa,
were conceived and executed as legally binding instruments-as a
whole and in each of their parts ... $ ".
In fact, of course, Respondent has never disputed that the mandate
instrument-including Article 2, paragraph 2, thereof-read in the light
of Article 22 of the Covenant, created legal obligations.
In their attempt to ascribe such a contention to Respondent, Applicants
rely on the use by Respondent of expressions regarding the "idealistic or
humanitarian objectives", or "the spirit" with which a Mandatory should
be imbued, which are set forth in the opening paragraphs of Article 22 of
the Covenant and paragraph 2 of Article 2 of the Mandate 6•In the pas
sages quoted by Applicants, Respondent was, however, not purporting to
distinguish between parts of the Mandate orof Article 22 of the Covenant
on the basis that some parts created legal obligations and others not.
Clearly the mandate instrument as a whole, read in the light of the
whole of Article 22, gave rise to legal rights and obligations. But in order
to detennine the content, the nature and the extent of such rights and
obligations, due weight must be given to each of the parts of these docu-
1 IV, in particularp. 68 (paras. 4 and 5) and p. 87 (para. 4). Vide also Part V,
infra.
:aIV, pp. 232-233.
3 Ibid.,pp. 244-245. Vide also pp. 232-237 and pp. 478-483.
• Ibid,,p. 477.
'Ibid., p. 4So. The discussion ranges over pp. 478-483.
6 Ibid.,pp. 232 and 244-245.20 SOUTH WEST AFRICA
ments. For the purposes of such interpretation, it can hardly be doubted
that the "sacred trust" and "tutelage" principles, to which effect was
given in Article 2 of the Mandate, relate, in the words of an authority
much relied upon by Applicants, "... to the fondamental objective of
1
the mission undertaken by the Mandatories ... " or that, as another
authority stated in a report unanimously adopted by the Council of the
League of Nations,
"[p]aragraphs r and 2 of Article 22 have indicated the spirit which
should inspire those who are entrusted with administering peoples
not yet capable of governing themselves ... 2''.
In expressing this concept, Respondent has, inter alia, used the expres
3
sions "main 5bjective" , "over-riding objective"\ "bas6c principie or
objective" and "idealistic or humanitarian objectives" •The mere fact
that the overriding objective of the Mandate was of an idealistic or
humanitarian nature, does not, of course, mean that the provisions
relative thereto were devoid of legal effect. Applicants indeed concede
this, e.g., when they say: "Although the term 'sacred trust of civilization'
obviously imports a high moral principle, it was intended to have legal
significance as well 7 ".
12. There is consequently no dispute between Applicants and
Respondent as to whether Article 2 (2) of the Mandate, read in the light
of Article 22 of the Covenant, created legal obligations.
The only issues in this regard are:
(a) whether the Court (as distinct from the Council of the League
assisted by the Permanent Mandates Commission) possessed
jurisdiction to pronounce on alleged contraventions of the Article;
and
(b) what IegaJ basis or norm was to be applied in determinjng whether
there had been a violation of the obligation laid down by the
Article.
On neither of these issues, as wiÙ be demonstrated below 8, does
Respondent's contention expressly or by implication involve a denial of
the legally binding nature of the obligation imposed by Article 2, para
graph 2, of the Mandate.
13. The first main issue then is whether the Court was, under the
compromissory clause, Article 7, paragraph 2, vested with jurisdiction
in respect of allegations of contravention of Article 2, paragraph 2, of
the Mandate. Rcspondent contends that only the Council of the League
(assisted by the Permanent Mandates Commission), and not the Perma
nent Court of International Justice, was intended to have jurisdiction to
entertain such matters. Applicants submit that the Court also was vested
with competence in this regard. Accordingly the dispute between the
Parties does not relate to the existence or otherwise of legal duties in terms
1
2 The Mandates System---Origin-Principles-Application (1945),p. 53.
Report of M. Hymans dated 5 Aug. 1920. L. of N., O.]., 1920 (No. 6), pp.
333-340.
Vide, e.g.,II,pp. 385 and 386.
• Ibid.,p. 386.
5Ibid.,p. 169 (para. g).
6Ibid.,p. 104 (para. 13) and p. 169 (para. 8).
7IV, p. 233.
8Vide paras. 13-14,infra. REJOINDER OF SOUTH AFRICA 21
of Article 2, paragraph 2,of the Mandate, but merely as to the nature of
the supervisory machinery provided by its authors to ensure compliance
with such duties. It is of course obvious that a lack of compulsory juris
diction on the part of the Court would not have rendered the Article
devoid of legal effect, particularly since its enforcement was entrusted
to the Permanent Mandates Commission and the Council of the League
of Nations. This trite proposition of law is apparently, however, not
recognized by Applicants, as appears from the gloss put by them on
Respondent's argument in the respect set out hereunder.
Thus Respondent said:
"... attention has been drawn to the wide and general provisions of
Article 2. In this respect it has been submitted that it is foreign to
the essential nature and purpose of a Court of Law to entertain
matters of a purely political or technical nature, such as might well
arise if the Court were required to adju<licate on disputes arising
from an alleged breach of the obligation to '. . . promote to the
utmost the material and moral well-being and the social progress
of the inhabitants of the territory .. .' For the reasons set out, it
was submitted that the authors of the Mandate did not intend the
Court to have imisdiction to entertain such disputes, the Permanent
Mandates Commission and the Council of the League being the technical
and political bodies specially charged with the function of dealing with
wch matters 1.'' (Italics added and footnotes omittcd.)
This submission is rendered by Applicants as follows:
"Article 2, paragraph 2,does not ... create or embody obligations
of a legal nature, but is assertedly a merely political or moral
exhortation; this argument Respondent seeks to reinforce by reference
to the generality of the terms of the Article 2.''(Italics added.)
Respondent will deal at a later stage with Applicants' argument in
reply to their above-quoted rendering of Respondent's submission 3•
Its concern at the present stage is only to point out that the rendering
itself is totally wrong.
14. The second issue in regard to Respondent's obligations under
Article 2, paragraph 2,of the :'1Iandaterelates to the legal basis or norm
which was to be applied in determining whether there had been a violation
of such obligations. Respondent contended that Article 2, paragraph 2,
read in the Iight of the Covenant, required Respondent to use its "full
power of administration and legislation" for the purpose of promoting
to the utmost the material and moral well-being and the social progress
4
of the inhabitants of the Terri tory •The consequence of this was, in
Respondent's submission, that the particular method to be employed
towards achieving this purpose was left to Respondent's discretion, and
that legislative or administrative action could therefore violate Article 2,
paragraph 2, only if actuated by a motive or intent other than one to
achieve such purpose 4. That Respondent's duty to use its powers for
the purpose of promoting the interests of the inhabitants was a legal one
1 li,pp. 384-385. Vide also ibid., pp. 183-r84.
l IV, p. 477.
3 Vide Part III, sec. C, paras. 4-19,infra.
4Vide Il, pp. 384-392. 22 SOUTH WEST AFRICA
(and not merely a "political or moral exhortation") was always con
ceded 1.
In a later chapter of this Rejoinder Respondent will demonstrate that
Applicants indeed never reply to Respondent's above submission 2• At
the present stage Respondent wishes to emphasize only that the true
issue between the Parties in this regard does not relate to the question
whether Respondent's obligation in terms of Article 2, paragraph 2,
was of a legal nature or not, but merely as to the basis or norms to be
applied in cfetermining whether there had been a violation of such obliga
tion. ln other words, it is admitted that the obligation was a legal one,
but the content of the obligation is in dispute.
1 Vide, e.g.• Il, p. 116 (para. -4) and ibid., pp. 38-4-392. In the latter passage
explicit reference is made to the "obligation resting on Respondent in tenns of
[Article 2, paragraph 2] •.• to use its powers of legislation and administration for
the purpose of promoting to the utmost the well-being and progress of the inhabi
tants" (ibid.,para. 13, p. 390) and also to the proof that woold be required "to
establish a breach of this Article" (ibid.).
1
Vide Part III, sec. C. para. 25, infra. CHAPTER III
THE MANDATORY'SPROCEDURALOBLIGATIONS
A. Applicants' Approach to the Issue
I. Rcspondent's argument dealing with the lapse of the M.andatory's
procedural obligations and of the Mandate as a whole was summarized
as follows in the Counter-Memorial:
" (a) The provisions for supervision of Mandatory administration by
organs of the League were dependent for their operation on the
existence of the League of Nations.
(b) Upon the dissolution of the League of Nations, the aforementioned
provisions were not modified into or replaced by others serving the
same or similar purposes, and consequently lapsed.
(c) Whether the Mandate continues in force at all, thus depends on
whether it is, in accordance with the intentions of its founders,
capable of existence without the said provisions.
(d) On the basis of the criterion stated in (c), Respondent submits that
the :'llandate as a whole has lapsed.
(e) ln the alternative to (d), ifthe Mandate continues in force, Res
pondent, for the reasons stated in (a) and (b), submits that it does
so only in respect of aspects which were not by their own terms
dependent upon the League of Nations, and thus, in particular,
withont any obligation on Respondent's part to submit to super
vision by any international organization or body 1."
Respondent's argument, as thus summarized, was developed in Chap
t ers IV and V of Book II of the Counter-M.emorial. Even a cursory
perusal of the said chapters would have rendered it clear that Respond
ent's basic argument is that the provisions for supervision of Mandatory
administration became inoperable or impossible of performance on the
dissolution of the League, and consequently lapsed, irrespective of
whether the Mandate remained in operation in other respects. On the
premise of the lapse of superoision, Respondent further submitted that the
Mandate as a whole fell away 2•
2. With such an explicit and clear statement of Respondent's conten
tion, it is surprising to find it completely distorted by Applicants at the
very outset of Chapter VI of the Rcply, dealing with Applicants' Sub
missions r, 2, 7 and 8. Thus one finds the following passages:
" ... starting /rom the premise that 'the Mandate as a whole kas lapsed',
Respondent contends that its '... obligations to report and account
to, and submit to the supervision of, the Council of the League of
Nations, lapsed upon dissolution of the League .. .' 3"; (ltalics
added.)
1 II,p. 97.
2 Vide also ibid.,pp. 164 (para. 74 conclusions regarding the Procedural Oblig
ations),165 (para. r), l74 (para. 18), 256 and 257 (submissions).
3 IV, p.521. 1t is perhaps even more surprising that Applicantsrely on Il, pp. 97,
163 and 182 for this version of Respondent'sargument. SOUTH WEST AFRICA
and
"Respondent's arguments in Book II of the Counter-Memorial
center essentially on two points: that the Mandate has ceased to
exist; and that Respondent, accordingly, has no obligation to report
to the United Nations for its administration-of the territory of
South W1st Africa, or in any other manner submit to its super
vision ." (Italics added.)
In other contexts Applicants show an awareness of the true nature of
Respondent's submissions. Thus, in dealing with what they allege to be
"fatal inconsistencies" in Respondent's "central contentions", they show
an appreciation of Respondent's contention that even if the l\landate is 2
still in force, its provisions relating to supervision have lapsed • And
later they say correctly;
"Respondent contends that if, as it asserts, the duty of inter
.national accountability lapsed with the dissolution of the League,
it is 'impossible for a Court to presume that the authors of the
3
Mandate would have intended it to continue in existence .. .' ."
Reference is also made by Applicants to Respondent's "argument that the
lapse of Article 6 of the Mandate collapsed the Mandate as a whole" 4.
The fact that Applicants commence the presentation of their reply with
a false rendering of Respondent's submissions, can hardly be taken as an
indication of much confidence on their part in the strength of their own
argument. As will be shown, this is a feature which is also encountered
elsewehere in the Reply.
3. Respondent's main submission then is that the provisions in Article
22 of the Covenant and the mandate instrument (hereinafter jointly
referred to as "the mandate documents") relating to the supervision of
Mandatory administration by organs of the League, became inoperable
upon the dissolution of the League, and consequently lapsed. It will be
recalled that the provisions in question were the following, viz.,
(i) Article 22 (7) of the Covenant:
"In every case of mandate, the Mandatory shaJ! render to the
Council an annual report in reference to the territory committcd to
its charge."
(ii) Article 22 (9) of the Covenant:
"A permanent Commission shall be constituted to receive and
examine the annual reports of the Mandatories and to advise the
Council on all matters relating to the observance of the Mandates."
(iii) Article 6 of the Mandate for German South-West Africa:
"The Mandatory shall make to the Council of the League of
Nations an annual report to the satisfaction of the Council, contain
ing full information with regard to the territory, and indicating
the measures taken to carry out the obligations assumed under
Articles 2, 3, 4 and 5."
These provisions made reference to specific supervisory organs only
2JIbid., p. 240. They fail to note, however, that the inconsistentcontentiowere
adv3nced in the alternativeby Respondent. Vide para. 24, infra.
Ibid., p. 524. Vide also p. 534, footnote 4.
• Ibid.p. 540. REJOINDER OF SOUTH AFRICA
25
(viz., the Council of the League and the Permanent Mandates Commis
sion), which organs, upon the dissolution of the League, ceased to exist.
Applicants nevertheless submit that Respondent's procedural obligations
continue in force as obligations to report and account to the General
Assembly of the United Nations, which must for the purpose of the said
obligations be regarded as the new supervisory authority 1• The crucial
question then is: On what legal basis can such an averred substitution of
supervisory organs be said to have been efjected? Consideration was given
in the Counter-Memorial to the following bases, which, in Respondent's
contention, would cover every possibility in the circumstances of the
present case:
(a) the interpretation of the express provisions of the mandate docu
ments with reference to both the meaning of the words used and
the light thrown thereon by surrounding circumstances 2 ;
(b) the possibility of implied terms or intentions in the mandate pro
3
visions ;
(c) the possibi\ity of an agreement, express or implied, in 1:945-1:946or
thereafter ~;
(d) the possibility of succession by virtue of an objective principle of
international law s.
After dealing fully with each of the above possibilities in the light of
all available information and relevant considerations, Respondent con
cluded that substitution of the supervisory authority did not take
place.
4. In their Reply, Applicants avoid any attempt at providing a syste
matic answer to Respondent's contentions regarding the alleged substi
tution of supervisory organs. This avoidance they seek to justify on two
grounds which, however, rest on two false premises. The first premise is
the above mentioned incorrect rendering of Respondent's argument, i.e.,
"... that the Mandate bas ceàsed to exist; and that Respondent,
6
accordingly, bas no obligation to report to the United Nations ... ''
(Italics added.)
This distortion then leads to the second false premise, narnely that
Respondent's contention-
"... that the Mandate, and the obligation to respond to international
supervision, have lapsed, ... (is based on arguments which} ... are
the same as those twice before considered in 1950 and 1962 7".
A comparison of the arguments now used to establish the lapse of
supervision by organs of the League, and the lapse of the Mandate as a
whole, with those used in 1950 and 1962 in respect of the issues then
before the Court, dernonstrates the incorrectness of Applicants' second
premise, as appears from the next succeeding paragraphs.
5. In 1950, the argument on the lapse of the Mandate as a whole was
1
Vide Applicants' Submissions No. 2 and No. 7 (1, pp. r97-r98) read with I, pp.
52-53 and 95-103.
2 li,pp. II9-I22.
3 Ibid.,pp. 122-124.
• Ibid.,pp. 124-r63.
5 Ibid.,pp. 163-r64.
6 IV, p. 521. Vide paras. 1 and 2.supra.
7 Ibid., p.522.26 SOUTH WEST AFR[CA
based on the submission that the Mandate was a contractual relationship
which lapsed on the falling away of the League as a party to a mandate
contract 1• Respondent's present argument, as summarized above 2, is
based on different considerations, viz., on the Japse of supervision, and
on questions of divisibility. Regarding the issue of supervision, this Court
now has the benefit of much fuller information than was presented in
1950 3• In addition, further light has been thrown on this issue by authori
ties on international law, and by the Judgment and Opinions on the Pre
liminary Objections 4- For ail these reasons, Applicants are wrong in say
ing that the arguments now used are the same as those considered in 1950.
6. As far as the 1962 proceedings are concerned, the question whether
the Mandate had lapsed or not, was not then dealt with at all by Res
pondent. On the contrary, before arguing the merits of its Preliminary
Objections, Respondent stated explicitly:
"No submissions are advanced about the questions whether the
Mandate, in the wider sense of being an institution, lapsed upon
dissolution of the League or survived the League ... 5..
6
This attitude was maintained throughout .
Applicants are, however, correct in saying that argument was presen
ted to the Court in 1962 on the question whether Respondent's proce
dural obligations lapsed on dissolution of the League, but their averment
7
that this issue was decided against Respondent is without foundation •
In its Counter-Memorial Respondent carefully analysed the Judgment
and Opinions, and came to the conclusion that-
"... a number of Members of the Court found it unnecessary to deal
with the issue relating to Article 6 of the Mandate. However, four
Members of the Court (Judges Bustamante, Spender, Fitzmaurice
and van Wyk) expresscd a clear view that Article 6 had lapsed on
dissolution of the League. The other eleven Judges did not deal ex
pressly with this point; but the findings or reasoning of seven of
them are to a greater or lesser extent inconsistent with any survival
of the Mandatory's procedural obligations. They are Judges Alfaro,
Badawi, Moreno Quintana, Wellington Koo, Koretsky, Jessup and
11.fbanefo.In respect of the remaining four Judges (i'.e., President
Winiarski and Judges Basdevant, Spiropoulos and Morelli) no indi
cations are in this regard afforded by their Opinions 8."
Neither this conclusion, nor the argument prcsented in support there
of, is dealt with in the Reply. Instead, Applicants content themselves
with making the unmotivated and inaccurate statements referred to
9
above regarding the purport and effect of the 1962 Judgment •
Only in respect of the scope and purpose of the compromissory clause,
1 International Status of South-West Ajrica, Pleadings, Oral Arguments, Docu-
ments: Advisory Opinion of July IIth, r950, pp. 276-277.
2 Vide para. r, supra.
3 Vid~ II, pp. 124 (para. 19), 145-148 and para. 48, in/ra.
• Vide ibid., pp. 125 (para.20),148-151 and 152 (para. 55). Vide also para. 6, infra.
5 I, p. 214 (para. D).
6 Vide, e.g., I, pp. 299 (para. 3) and 360 (para. 54); Oral Proceedings2 and 3 Oct.
1962 and vide Il, pp. 165-166.
7 IV, pp. 522, 539 and 550.
8 Il,p. 153.
9
Vide also para. 47, in/ra. REJOINDER OF SOUTH AFRICA
and the issue as toits present existence, are the Judgment and some of
the Opinions in the I962 proceedings in conflict with Respondent's
argument in the Counter-Memorial. These topics, which were of funda
rnental importance for the jurisdictional questions decided in the Preli
minary Objections proceedings are, however, of only indirect relevance
1
to the present issues • In particular, they are of no relevance at ail to the
question whether Respondent's procedural obligations lapsed on disso
lution of the League.
7. It is, then, on the above false premises relating to the nature of
Respondent's submissions, and the effect of the previous Judgment and
Opinions, that Applicants seek to present a twofold justification for
their failure to deal systematically with the issue regarding Article 6 of
the Mandate. Firstly, they state that, in re-arguing matters previously
decided in the Judgment or Opinions, Respondent "... does not merely
maintain positions inconsistent with several of these Opinions. In many
instances, Respondent singles them out for critical analysis" 2•
Applicants then define their attitude to this matter as follows:
"Without suggesting that Respondent is not at liberty to proceed
in this manner, Applicants would prefer not to join issue with the
Counter-Memorial in its critical analyses of Opinions by members
of this honourable Court. It is one thing to maintain positions in
consistent with Opinions expressed by Judges now sittin~. Appli
cants themselves will respectfully maintain views in th1s Reply
that may not always be consistent with all these Opinions. It is
quite a different thing to place such Opinions in controversy. Ap
plicants do not believe that any useful purpose would be served by
replying to what the Counter-Memorial has to say about them 2."
Respondent does not understand what Applicants mean by the ex
pression "to place such Opinions in controversy". \Vhere Respondent
has made submissions which are inconsistent with views of recognized
authorities on international law referrcd to in these proceedings, Res
pondent has conceived it its duty to point out to this Court why, in its
submission, such views should not be accepted. Itis submitted that a
party would be entitled to disregard or ignore an adverse expression of
opinion by an authority only where the latter's standing is such as to
render his opinion valueless. A contrario, whère a view is expressed by as
eminent an authority as a judge of this honourable Court, Respondent
considers that it would not only be failing in its duty towards the Court,
but would be guilty of disrespect towards the leamed judge concemed,
by adopting a contrary attitude without indicating the grounds on which
its contention disagrees with such view. Thereby Respondent does not
wish to place any opinion "in controversy"-it merely seeks to assist the
Court by analysing the reasoning which has led such eminent lawycrs to
express views inconsistent with Respondent's contentions, and thus to
facilitate the Court's task of determining which conclusion is correct.
Indeed, the ascertainment of the real issues between the Parties, and the
weighing of the merits of their rival contentions, would in Respondent's
submission have presented much less difficulty if Applicants should also
1 Vide II, Book II, Chap. V Band Part II, Chap. IV B. para.1,infra.
2 IV, p.522. SOUTH WEST AFRICA
have presented "critical analyses" of arguments used by judges who
maintained views inconsistent \\ith their contentions.
S. In the second instance, Applicants do not stop at preferring "not
to join issuewith the Counter-Memorial in its critical analyses of Opin
ions by members of thls honourable, Court" 1; they also apparently
prefer not to join issue with Respondent on the major part of its
argument which either contains no reference to, or expresses respectful
agreement with, Opinions of members of this Court. Their purported
justification for this is that-
"... inasmuch as the issues of lapse of the Mandate and lapse of in
ternational accountability already have been presented to the Court
by the parties, it is difficult for Applicants to deal with these issues
without engaging in mere repetition of arguments already made in
2
the Prdiminary Objections phase of these Cases '',
and that they "... deem it appropria te to refrain in their Reply from
a merely mechanical repetition of the replies previously given to Res
pondent's arguments ... " 3.
The weakness in this position is that Applicants have never given a
systematic reply to Respondent's arguments regarding the lapse of
Artic1e 6 of the Mandate or of the Mandate as a whole. In the Preliminary
Objections proceedings Applicants' agent summarized their attitude as
follows:
"But, Mr. President, it is not the Applicants who 'rely on' United
Nations succession. The Court itself decided that issue in the Advi
sory Opinion of 1950. We draw the necessary inference from the
Court's Opinion. We do not bear the burden of sustaining the validity
of the Opinion of the International Court of Justice"." (Italics added.)
Although in his Rejoinder Applicants' agent belatedly sought to add
some·qualification to this statement, it is still clear that his argument
relating to the issue of the Mandatorv's procedural obligations was
based largely, if not wholly, on the assumed correctness of the 1950
Opinions. In their written Observations in the Preliminary Objections
proceedin~s. Applicants had raised a contention regarding a "pnnciple"
or "doctnne" of "succession", and had developed it to some extent,
although not fully or systematicalJy, with reference to an "organized
international community" 6•However, as has been seen 7, after this con
tention had been analysed and fully dealt with by Respondent in its oral
statement s, Applicants' representatives refrained from attempting to
support it, or even from mentioning it at ail, in the oral proceedings.
Also at the Preliminary Objections proceedings, therefore, Applicants
failed to answer on merit Respondent's arguments directed at showing
that the conclusion arrived at in the 1950 Opinion with respect to the
issue arising from Article 6 of the Mandate, was wrong.
1
IV, p. 522..
zIbid., pp.303-304.
4Ibid., p.304.
5Oral Proceedings, •7 Oct. 1962.
Ibid.,22 Oct. 1962.
71, PP· 443-444 and 444-449.
8II,p. 122 (para. 14) and p.164 (para.72).
Oral Proceedings, 5 Oct. 1962. REJOI:SDER OF SOUTH AFRICA 29
The further question whether the l\fandate was capable of continued
existence despite the absence of the supervisory machinery provided
for in Article 6, did not arise in the Preliminary Objections proceedings,
and was not then argued by Respondent 1.
9. Rather than provide "the rnerely mechanical repetition" referred
to in the previous paragraph, Applicants adopt what they term "... a
somewhat different approach to the task of presenting to the Court
2
their arguments conceming this aspect of the merits of issues in dispute" ,
namely an "... endeavour ... to identify the nature [of?] and apparent
explanation [for?] underlying differences between the parties" 2•
These underlying differences they identify as "... essentially dif
fering views in respect of the nature of the obligation of international
2
accountability" , and ". . . divergent major premises conceming the
essential role of accountability under the Mandates System" 3•
This then is the issue on wh1chApplicants choose to join battle, recog
nizing, at the same time, that the deciding factors are, ultimately, "con
2
clusions conceming interpretations of the relevant texts" •
IO. What then are the "divergent major prernises" to which Applicants
attach so much importance? The following passage appears, on analysis,
to reflect their conception thereof {inso far as the issue relating to Article
6 is concerned) :
". . . in perfonning its supervisory function with respect to Man
dates, the League of Nations was ... acting not as party to a con
tract, but 'as an organized international community'.
The United Nations has replaced the League of Nations as such
'organized international community' ... ,... (Footnote omitted.)
From these premises follows Applicants' crucial conclusion, viz.,
" ... Respondent's obligation of international accountability, accord
ingly, is owed to the United Nations in that capacity" 1.
· II. The words "acting notas a party to a contract" reflect an apparent
misapprehension on Applicants' part as to the true content of Respon
dent's submissions regarding the lapse of Article 6 of the Mandate. This
apparent misapprehension is also found elsewhere in the Reply.
Thus Applicants refer to-
. "Respondent's contention that its obligatiçms were merely con
tractual with the League of Nations and lapsed when the League
tenninated., .. 3", (Italics added.)
and to "Respondent's conception of the relationship between itself and
the League ... asoneof merecontract. .. " 5 •(Italics added.) This is later
amplified as foll~ws:
1Vide para. 6,supa.
2IV, p. 523.
3Ibid., p. 524.
4 Ibid., p. 539. Applicants appea.r: to suggest that a further "divergent major
premise" is found in the Parties' respective attitudes towards the question whether
the "sacred tmst" and "tutelage" principles gave rise to legal obligations (vide IV,
p. 524): no argument is, however, explicitly based on this premise, and, as has been
noted above (vide Chap. II, paras. 11-14, supa), the alleged divergence between the
Parties' attitudes in this respect is completely imaginary.
5Ibid, p. 534·30 SOUTH WEST AFRICA
"Respondent contend.s that its obligations to report on its admin
istration of the Mandate and the right of the League to supervise
and verify its observance of these obligations, were undertakings of
a contractual character. It argues that the obligation to report and
the right to supervise were intended to give practical effect to the
word.s 'mandatories on behalf of the League' in accordance with the
principle of 'mandatum', which isa contractual principle. The sugges
tion is that the League delegated authority to the mandatories and
reŒived in exchange their promise to report to the League and to
submit toits supervision. On this basis, Respondent contends that
on dissolution of the League, the notion of 'mandatories on behalf
of the League' fell, and with it Respondent's nndertaking to report
and to submit to international supervision 1." (ltalics added.)
Applicants have not disclosed the source from which they purport to
derive this version of Respondent's ar~ment 2• This honourable Court
will be aware that Respondent's subrmssions regarding the lapse of the
League's supervisory functions were based upon inoperability or impossî
bility of performance, not on any contractual lapse 3• Indeed, Respon
dent's contentions on this aspect did not advert at all to the question
whether the League of Nations ever was a contractual party to the
Mandate, since this was nota relevant issue in respect of such contentions.
In the section of Respondent's argument where this issue was relevant
(i.e.,in the chapter dealing with the lapse of the compromissory clause),
Respondent argued that the Mandate never was an international con
tract (a "treaty or convention")•. And if the Mandate were to be held
to have been a "treaty or convention", Respondent left the question open
whether the League of Nations was ever a party thereto ~.
I2. Respondent's contention therefore is that the content of the obli
gations accepted ·byit, irrespective of who, if anybody, was a contractual
party to the Mandate, involved supervision by specific organs, viz., the
Council of the League of Nations, assisted by the Permanent Mandates
Commission. The content of the obligations can be determined only by a
process of interpretation, i.e., the ascertainment of the intentions of their
authors as expressed or implied in the documents embodying such obli
gations. Consequently, if Applicants' arguments were to be relevant at ail
to Respondent's contention, they would have to be directed at showing
that interpretation of the documents concemed reveals obligations of a
content different from that contended for by Respondent. In other words,
Applicants must then submit that the Mandatory's procedural obliga
tions were intended to be defined with reference to the organs of the
League of Nations in a special capacity, viz., as then constituting or
representing the "organized international community". This indeed ap
pears to be the effect of Applicants' case 6•Thus they say that at the
1 IV, pp. 537-538.
z Respondent did say that acconntability was imposed as a "feature" of "broad
resemblance" to the Mandatum institution (Il, p.115, para.. 2). Perhaps Applicants
base their whole contention on this slender foundation.
3 Vide para. 1,supra.
4 Vida Il, pp. 193-204,
5 Ibid., pp. 207-208.
6 Although, for reasons best known to themselves, they do not inform the Court
in so ma.ny words of their attitude in that regard. REJOINDER OF SOUTH AFRICA JI
Peace Conference "[i]t was clearly understood by all conŒrned" that "as
a matter of international law, the well-being and social progress of [in
digenous peoples in certain areas of Africa and Asia] would be the re
1
sponsibility of the 'organized international community' " (italics added),
and also that "the Covenant vested responsibility in the organized inter
national community" z;they refer to "international accountability" as a
"duty" which was "imposed" 3, and as somethlng "incorporated in
paragraphs 7 and 9 ... of Article 22 of the Covenant" 3.And, finally,
as already observed, they describe the dispute between the Parties as
one conceming "interpretations of the relevant texts" 4.
Consequently, despite lack of a comprehensive explanation to that
effect, it seems clear that Applicants rely on an intention alleged to be
embodied expressly or by implication in the provisions of Article 22 of the
Covenant (and, as a result, probably also in Article 6 of the mandate
instrument). In other words, they join issue with Respondent on the
application of the bases (a) and (b) set out in paragraph 3, supra, and
their contentions must accordingly be weighed against the considerations
set out by Respondent under the corresponding headings in the Counter
Memorial. In addition, Applicants appear to rely to some extent on basis
(c), although apparently not as an independent factor said to have
effected a substitution of supervisory organs by itself. Thus they say
that, "consistently wi'th theforegoing" (italics added), i.e., with theirinter
pretation of the mandate documents,
"... the proceedings at the period of the dissolution of the League
of Nations and the organization of the United Nations, manifested
the clear intention of all concemed to preserve and assure proper
discharge by the organized international community with respect
to its responsibilities toward the inhabitants of mandated terri
tories 5".
No reliance is, however, placed on basis (d), i.e., succession by virtue
of some objective principle of international law.
To swnmarize: Applicants have chosen to join issue with Respondent
on its contentions regarding the meaning of, or implications in, the
mandate documents, and, to a Iesser extent, on its arguments relating to
the events of :r945-:r946. It is, accordingly, necessary to analyse the
material adduced by Applicants in support of their contentions, and to
place it on the scales against the factors relied upon by Respondent.
This will be done in the next succeeding paragraphs, dealing first with
the meaning of, or implications in, the mandate documents, and there
after with the events of 1945-1946.
B. The Meaning of, or Implications in, the Mandate Documents
I. THE NATURE AND IMPLICATIONS OF THE PARTIES' RESPECTIVE
ATIITUDES
13. Applicants' "organized international community" argument may
be summarized as follows:
~ II, p. 233.
2.Ibid.,p.534.
3 Ibid., p. 538.
• Vide para.9, supra.
5 IV, P· 539.32 · SOUTH WEST AFRICA
(a) The Covenant of the League vested responsibility in the "organ
ized international community" to assure that l\1andatories would
promote the well-being and social progress of inhabitants of man
dated territories 1•
(b) Accordingly, any reference in the mandate documents to the per
formance of supervisory fonctions by organs of the League must be
construed as a reference to such organs in their capacities as con
2
stituting or representing the "organized international community" •
(c) Since the dissolution of the League of Nations, the obligations of
the Mandatory have been owed to the United Nations as the new
"organized international community" 3•
It will berecalled that the provisions regarding supervision in respect of
Mandates by organs of the League refer to such organs by name and
without any qualifications 4• In order to arrive at the conclusion that
such organs acted merely in a special capacity (i.e., as constituting or
representing the "organized international community"), it would con
sequently be necessary to read such an unexpressed intention into the
tenns of the relevant documents. In this connection it must be borne in
mind that a tacit intent or consent may be implied only where it arises
necessarily or inevitably in the sense that all other reasonable inferences
are excluded 5•And, when dealin~ with instruments such as the mandate
documents, there is a very much mcreased difficulty about deriving such
intent from sources dehors the instruments themselves. In this regard
reference may be made to the following passage from an opinion by Sir
Percy Spender, which, although dealing with the United Nations Charter,
contains reasoning which is equally applicable to the instruments now
under consideration:
"Moreover the intention of the parties at the tune when they
entered into an engagement will not always---depending upon the
nature and subject-matter of the engagement-have the same
importance. In particular in the case of a multilateral treaty such
as the Charter the intention of its original l\lembers, except such
as may be gathered from its terms alone, is beset with evident
difficulties. Moreover, since from its inception it was contemplated
that other States would be admitted to membership ... the intention
of the framers of the Charter appears less important than Ï}ltention
in many other treaties where the parties are fixed and constant and
where the nature and subject-matter of the treaty is different. It îs
hardly the intention of those States which originally framed the
Charter which is important exceptas that intention reveals itself in
the text. What is important is what the Charter itself provides ... 6"
1 IV, pp.233-242 and 534.
2 Ibid.,pp. 240 and 533-534. For a fuller discussion of the relationship, as dis
closed in the Reply. between the "organized international community" and the
League; uide paras. 38-39, infra.
3 IV, pp. 537 and 539·
4 Vide para. 3, supra.
5li, pp. III-II2 and references there given. Vide also Certain Expemes of tke
United Nations (A rlicler7, '/)aragraph2, of the Charter), Aduisory Opinion, I.C.J.
Reports r962, p. 151 at p. 159.
6 Certain Expemes ofthe United Nations (Af'ticleIl, paf'ag,aph 2,o/ tluCharlet'),
Advisory Opinion, l.C.]. Repo,-tsr962, p. 151 at pp. 184-185. Vida also Lord McNair, REJOINDER OF SOUTH AFRICA
33
Inasmuch as the mandate documents by themselves do not give rise
to any necessary inference of the sort relied upon by Applicants, the
considerations stated in the above passage might well be regarded as
rendering unnecessary any further enquiry as to the intentions of the
authors of the Mandate. Nevertheless Respondent do~s not propose
resting its argument purely on this basis, but will proceed on the same
lines as in the Counter-Memorial and demonstrate that such further
enquiry does not invalidate, but on the contrary supports, the conclusion
reached on examination of the terms of the instrwnents themselves.
14. The first question which arises is: What is the content of the
provision sought to be implied? As Respondent will indicate below,
Applicants have avoided any clear definition of the nature or composition
of the "organized international community", or of its relationship with,
success1vely, the League of Nations and the United Nations Organi
zation . However, whatever the "or~anized intematiorial community"
may be (or may have been), the baS1cconcept involved in Applicants'
argument, viz., that the League organs were assertedly intended to act
in a special capacity as constituting or representing some other entity
or concept, contains certain implications which, it is submitted, exclude
the possibility of any implied provision of the type contended for by
Applicants.
The legal device of entrusting functions to persons acting in a particular
capacity, or to the incumbent for the time being of a particular office, is
ex hypothesi resorted to only in order to make provision for the possible
future loss of capacity or office by the individual holder thereof. Thus,
on the one hand, this device serves the positive purpose of ensuring that
there will always be a suitable person to perform the fonctions in question.
On the other hand it ensures negatively that a particular incumbent of an
office is prevented from continuing to exercise the functions in question
after loss of his office.Both these aspects serve to stress that a grant of a
fonction in this form is derived from a contemplation that the present
incwnbent of the office will or may not remain alive (or in existence) as
well as suitable and able to carry out the function for a sufficient length
of time to bring it toits completion.
Because of this essential purpose of this legal device, it fi.ndsits main
application in connection with natural persons, who are subject to death,
disease, insanity, resignation, dismissal, promotion or demotion, and may
thus become incapable of performing a particular fonction.
The position of associations (whetheC"incorporated or not) is, however,
substantially different. They are capable of perpetual existence, andare
not subject to the ordinary hwnan vicissitudes referred to above. Conse•
quently the normal contemplation is that an association will continue
in existence and remain available and capable to carry out a fonction
until its completion. Furthermore, an association usually does not act
in a number of different capacities (as distinct from engaging in a variety
of activities). lt would, consequently, only in exceptional cases be con
sidered appropriate, or necessary, or desirable, toappoint an association
The Law of Treaties (1961), p. 745. Wright. Q., Mandates unde, the League of Nations
{1910},p. 363.
Videparas. 37-42, infra. SOUTH WEST AFRICA
34
to perform a fonction in its capacity as the holder of a particular office
or qualification. Such a situation would arise only where there exists a
specific contemplation that the association might cease to hold a stipu
lated office or qualification, in one or the other of the following ways:
firstly,in that the association might, while remaining in existence, lose
the office or qualification, and thereby become either incapable, in
factor in law, or unfit in the contemplation of the stipulator, to perform
the fonction concerned, or secondly, in that it might be dissolved and
thereby cease to exist at all.
15. It is consequently implicit in Applicants' "organized international
community" theory that the authors of the mandate system must have
contemplated the possibility that the League might at some future date,
for one of the two possible reasons referred to above, cease to represent
or constitute the "organized international community" and consequently
to be able or fit to perform the supervisory fonctions entrusted to it in
the mandate system.
Applicants do not appear to suggest that the authors had in mind the
possibility that the League might lose its quality of constituting or repre
senting the "organized international community" despite remaining in
existence 1•
By a process of elimination it therefore follows that Applicants'
"organized international community" theory amounts merely to an
averment that the authors of the Mandate, by a particular method,
intended to guard against the consequences of a possible future dissolution
of the League, viz., by making provision for a succession of supervisory
organs in such event. And, as demonstrated above, Applicants seek to
base this particular succession-argument on an implication to be found in
2
the mandate documents •
16. By reason of the conclusions reached in the preceding paragraph,
the arguments adduced by Respondent in its Counter-Memorial in order
to demonstrate in principle the untenability of any suggested implication
in the mandate documents of a provision regarding future succession of
supervisory organs, are fully applicable to the particular implication
alleged by Applicants in their "organized international community"
theory. These arguments may be briefly summarized as follows:
(a) Since in fact nobody in 1920 contemplated the possibility of the
future dissolution of the League, it would be unrealistic to impute
an intention to the authors of the Mandate to guard against the
possible consequences of such dissolution 3•
(b) Even if it be assumed that the future dissolution of the League
1It nevertheless remains a necessary corollary of Applicants' argument that the
Mandatories would have been entitled to refuse to submit to supervision by the
League if it ceased to constitutor represent the "organized internationalcommu
nity" even ifit remained in existence. In this regard it may possibly be questioned
whether the League could be said to have been fully representative of the inter
national community during its last few years of existence, even prior to the foun
dation of the United Nations, when a number of States, including major powers
such as the United States of America, the U.S.S.R., Germany, Japan and ltaly,
were not members of the League. And who constituted or represented the "orga
nized internationalcommunity" during the simultaneous existence of the League
and the United Nations?
z Vide para. r3, supra.
3 II, p. r23. REJOINDER OF SOUTH AFRICA 35
was contemplated, it must be borne in mind that certain of the
Mandatories were reluctant to accept the extension of the mandate
system to particular territories occupied by them, being influenŒd
in their acceptance, inter alia, by the nature of the supervisory
machinery, which was carefully checked and balanced so as to
render unlikely any injurious, biased or unfair interference with
mandatory government, and so as to contain the minimum of
political e!ement and a maximum of independent, expert approach.
It îs therefore almost inconceivable that they would have agreed
in advance in 1920 to submit to supervision at some unknown date
in the future by a body, the composition, procedure and attitude
of which were ex hypothe:.'iunknown to them, and in circumstances
which were unpredictable 1•
(c) The provisions regarding amendment in Article 7 of the Mandate
(and similar provisions in other mandates) enablcd the mandates
to be amendcd to meet changes in circumstanccs, and indicate an
attitude on the part of the authors of the mandates that such
changes should be dealt with as and when they arose. Is it then
likely that they would have attempted to make provision in advance
for something as uncertain in its nature and consequences as the
dissolution of the League 2?
(d) No State allegcd the existence of such an implied agreement,
despite discussions concerning the future of the mandates by the
founders of the United Nations (including many founders of the
League) in 1945-1946, by the members of the League at its final
session in April 1946, and by l\Iembers of the United Nations in the
years 1946-1949 3.,
The argument that rights or interests in respect of mandates
passed to the United Nations as representing "the civilized and
organized collectivity" or the "international community" or
similar phrases, indeed first came to be used, by representatives
of a few States, as from the end of 1948 only, i.e., after years of
debate regarding mandates 4• These representatives did not,
however, base tbis argument on the facts, circumstances and
intentions existing in 1920, or on any contention of implied con
sents by the authors of the mandate system. They treated it rather
as based on a principle of law, operating independently of the
intentions of the authors of the Mandate, and in some cases they
joined it with arguments based on Article 80 (1) of the Charter 5•
That these States were relying on their construction of principles
of law, and not on alleged facts within their knowledge, appears
also from the fact that in the case of some of them this argument
was inconsistent with the attitudes adopted by them at an earlier
stage 6•
1 H, pp. 119-120 and •23-124.
2 Ibid.,pp. 123-124 (para.16).
1 Und. (para.17).
• Ibid.,p. 70.
' Ibid., and speeches ofrepresentatives referred to there. Applicantsalso atone
stage placed heavy reliance on Article 80 (1) ofthe Charter of the United Nations
(vide Il, pIII, para. 24), butapparently no longer do so--their Reply makes no
reference to this Article.
~ Ibid.,p. 70 (para.60). SOUTH WEST AFRICA
17. Despite the fact that Applicants' "organized international com
munity" theory, being based on the alleged intentions of the authors of
the mandate system, is covered by the arguments advanced in the
Counter-Memorial and summarized in the preceding paragraph, Appli
cants have not attempted to controvert the facts presented or inferences
drawn by Respondent. Instead they apparently seek to avoid the argu
ments, facts and inferences concerned, and to develop a line of argument,
spread over two chapters 1,which makes no reference thereto. The con
tentions advanced by them appear to differ to some extent as between
the two parts, and will consequently be dealt with separately.
U. CHAPTER III OF THE REPLY
18. The manner in which Applicants present their "or~anized inter
national community" theory in Chapter III of the Reply, 1sinstructive.
In purported answer to a contention not advanced by Respondent, they
introduce this theory as follows:
"Applicants submit ... that the 'sacred trust' and 'tutelage'
principle, in itself, must be regarded as a statement of legal obli
gation, embodying juridical content. The enforcement of the 'sacred
trust', moreover, became a responsibility 'laid upon the League as
an organized international community' 2." (Footnote omitted.)
The rest of their section A of Chapter III is devoted largely to devel
oping the submissions:
(a) that the provisions regarding the "sacred trust" and "tutelage"
principles gave rise to legal obligations; and
(b) that enforcement of the "sacred trust" was the legal responsibility
of the "organized international community" as an entity or concept
distinct from the League of Nations.
19. It must be noted that proposition (b) referred to in the previous
paragraph is nota necessary corollary of proposition (a). Thus, although
it is admitted that the authors of the mandate system intended the
''sacred trust" to give rise to legal obligations 3, that does not answer
the real question at issue for present purposes, viz., in what manner did
such authors seek to ensure compliance with the "sacred trust-a
question which, as noted above ~,can be resolved only by an examination
of their intentions.
20. As indicated above, Applicants do not indeed contend that there
is any basis other than the intention of the authors of the mandate
system for their construction of the element of accountability to the
administrative supervisory organs of the League ~.Rather, by combining
their treatment of their submissions (a) and (b) referred to above 5 (there
being ample authority and sound argument in support of the uncontested
"issue" (a), but not of (b)), they attempt to show that both aspects were
in accordance with the intention of the parties. When, however, the
1 IV,Reply, Chaps. III and VI.
2IV, p. 233. Vide Chap. II, paras. u-q, supra.
3 Vide Chap. II, paras. rr-r4, supra.
4 Vide para.12, supra.
5 Vide para. 18,supra. REJOINDER OF SOUTH AFRICA
37
authorities and arguments relied upon specifically to establish Applicants'
submission (b) are examined by themselves, it is revealed how far they
fall short of the purpose for which they are adduced-as will, it is sub
mitted, appear from the succeeding paragraphs.
21. Applicants' authority in support of their allegations regarding the
legal responsibility of the "organized international community" consists
of the following:
(a) A statement in the Judgment of this Court in I962 that the Mandate
System involved "... the recognition of 'a sacred trust of civili
sation' laid upon (sic) the League as an organized international
community and upon its Mernber States" 1.
(b) A statement by President Wilson in I919, who said with reference
to his proposais for the mandate system (which proposais were not
accepted without major modifications) that "(t]he fondamental
idea would be that the world was acting as trustee through a manda-
tory . . ."2• (Footnote omitted.) ·
(c) A statement by P. H. Kerr in 1916 that in colonial policy generally
"... the ruling people ought to govern the dependency as trustees
for all mankind" 2• (Footnote omitted.)
(d) A statement in the "Cobb-Lippman-House Memorandum" of 1918,
with reference again to colonial policy in general, "... that a colonial
power acts notas owner of its colonies, but as trustee for the natives
3
and /or the interests of the society of nations . .. " •(Italics added.)
(e) A statement in 1945 by the League Secretariat that the mandate
system was "... calculated to safeguard the interests both of the
natives and of those countries which had asserted special daims, and
in addition, the interests of the international community in general" 4.
(Footnote omitted.)
22. Dealing first ,vith the quotation from the 1962 Judgment, on which
Applicants rely so heavily 5, Respondent submits that the construction
contended for by Applicants is entirely erroneous. The concept which the
Court expressed in the passage under consideration, was that the "sacred
trust of civilization" had been laid upon two different entities, namely
"upon the League as an organized international community and upon its
Member States". (Italics added.) The words "as an organized international
community" serve in the context to describe the feature distinguishing
the League from its Members, and consequently mean, it is submitted, no
more than "as an international organization". The use of the indefinite
article "an" is significant in this regard. There can hardly be more than
one "organized international community" in the sense contended for by
Applicants, or, indeed, in the sense of a concept like "the society of
nations" or like phrases on which Applicants also rely 6•
23. The highest possible effect of the other four statements relied upon
by Applicants 6,would appear to be that the mandate system was shaped,
1 South West Africa, Preliminary Objections, Judgment, I.C.J. ·Reports r962, p319
at p.329. IV, p. 233.
2 IV, p. 235.
3 Ibid., p.236.
• Ibid., p.237.
5
6 Vide IV,pp. 233, 524 and 539.
Vide para. 2 1,supra. SOUTH WEST AFRICA
inter alia, by the view that "the world" or "all mankind" or "the society
of nations" or "the internationalcommunity in general" was interested in,
or would benefit by, the proper administration of dependent territories
generally, and of the former German and Turkish colonies and territories
in particular. This may indeed be conceded. That conclusion does not,
however, answer the real question, namely: ln what manner did the
authors of the mandate system seek to give effect to this interest of
"the international community in general"? Applicants' authorities fail to
provide any answer thereto. In particular they do not suggest that there
was any intention or attempt to bestow legal personality, or legal rights,
interests or obligations upon "the world", "all mankind", "the society
of nations" or "the international community in general".
24. An examination of the arguments used by Applicants in support
of their "organized international community" contention shows them to
be as inconclusive as the authorities relied upon. Thus Applicants point
to the objective of self-determination for the peoples of mandated terri
1 2
tories ; to the "neŒssity" for "international accormtabfüty" ; and to
the fact that the Mandate constituted a "new international institution,
the primary, overriding purpose of which is to promote the 'well-being
and development' of the people of the territory under Mandate" 2• These
considerations do not, however, answer the vital questions, namely what
did the authors of the Mandate intend the content of the new institution
to be; how did they seek to promote the well-being of the inhabitants;
what type of international supervision did they intend to create? No
argument, as distinct from mere assertion, is directed towards showing
that these questions are to be answered in the manner contended for by
3
Applicants •
Applicants also point at certain alleged "fatal inconsistencies" in
Respondent's "central contentions" 4• The fust two contentions referred
to by Applicants are indeed inconsistent and were for that reason ad
vanced by Respondent in the alternative 5•The third contention relied upon
by Applicants appears to be merely their paraphrase of the first conten
tion 6 •In this regard it is to be particularly noted that the description in
the said contention of the powers claimed by Respondent as being
"powers eqµivalent to annexation . . . or sovereignty" 7 represents
Applicants' characterization, and does not correctly reflect any sub
8
mission made by Respondent •
25. For the reasons aforestated, it is submitted that Applicants have
failed to establish in their Chapter III that any legal responsibility or
interest in respect ofmandateswasgranted to the "organized international
community", or any other international entity or body save the League
of Nations. In the next succeeding paragraphs, Respondent will consider
1 IV, pp. 239-2,p.
2 Ibid., p.240.
3 Vide also para. 35, infra.
4 IV, p. 240.
5 Il, p. 257.
6 Unless it is intended to refer to the situation on the basis that the Mandate
has lapsed-in which event vide Chap. IV A, paras. 20-30, infra.
7 IV, p. 241.
8 Vide Chap. II, paras. 4-10, supra. REJOlNDER OF SOUTH AFR!CA 39
the arguments advanccd and authorities quoted in Chapter VI of the
Reply, apparently in support of the sarne argument.
III. CHAPTER VI OF THE REPLY
The General Tenor of Chapter VI
26. In dealing with Applicants' arguments in Chapter VI of the Reply
regarding the lapse or otherwise of the provisions of Article 6 of the
l\fandate, Respondent is at the outset faced with certain difficulties of
approach. Applicants commence their treatment of this topic by asserting
that in Chapter III ·ofthe Reply they provided a-
"... demonstration that the 'sacred trust' and the legal nature of the
'tutelage' principles of Article 22 of the Covenant imported obli
gations of a legal nature, compliance with which is an interest of the
organized international community ". (Italics added.)
And one of the submissions made by Applicants in their Chapter III was
that "[t]he League was to serve as the then existent political organ of the
internationalcommunity ... " 2.
It almost appears, therefore, as if Chapter VI of the Reply is not in
tended Jo establish the "organized international community" theory,
but that it proceeds on the assumption that correctness of such theory
has already been demonstrated in Chapter III. Sorne support for this
reading emerges from the fact that Chapter VI apparently purports to
provide the answers to contentions supposedly advanced by Respondent,
rather than to present a new and independent Iine of argument. Thus
immediately after the sentence quoted above dealing with the "dcmon
stration" in Chapter III, Applicants refer to "Respondent's contention
1
that its obligations were merely contractual with the League of Nations" ,
as if the rest of the treatment would provide a reply to this alleged con
tention. Since, as has already been shown, this contention was not ad
vanced by Respondent 3, it would not be necessary to rebut Applicants'
arguments if they are merely designed to demonstrate its incorrectness.
27. Also in othcr parts of their treatment of this subject in Chapter VI,
Applicants give the impression of purportedly contesting fictitious or
immaterial issues arising from the Counter-Memorial (or Applicants'
rendering thereof) rather than of providing a new and independent line
of argument in support of their "organized international community"
theory. Thus they contest Respondent's statement that-
"[t]he conception, also, of the 'tutelage' of a backward people or
community by an 'advanced nation' could at most have been
intended in a broad, metaphorical sense 4".
Applicants do not, however, contend that the expression was used
literally-on the contrary, they submit-
"... that this new international institution [the Mandate System]
adapted to its own purposes and needs analogous concepts of muni
cipal systems 5". (Italics added.)
1
2 Ibid.,p.2240.
' Vide para. r r, supra.
• Il, p.103. Vide IV, pp. 527 and 531.
' IV, pp. 528 and 532. SOUTH WEST AFRICA
This alleged issue can therefore be described as "rnetaphor" versus
"analogy".
If the purpose of this aspect of Applicants' argument rnerely is to
establish that the correct word is "analogy" rather than "metaphor",
Respondent would gladly concede it to them. However, they go further,
and apparently with reference to the same passage from the Counter
Memorial, say:
"Cont,ary to Respondent's contention, tutelage was a universally
accepted concept, designed for the protection of persans 'not yet able
to stand by themselves' 1." (Italics added and footnotes omitted.)
The italicized words, of course, do not give a correct reflection of the
passage referred to. lnasmuch as Applicants' abject is to establish the
validity of the proposition that tutelage was a universally accepted
concept, undér the mistaken impression (as appears from the italicized
words) that such proposition was contested by Respondent, it will only be
necessary to say that Respondent does not quarrel therewith at all.
28. Applicants likewise refer to the "fallacy in Respondent's conten
tion ... that the mandatum concept 'couldhardly have been known to the
Peace Conference as a whole'" 2• This is again a distortion of what
Respondent said. In fact Respondent's statement was:
"The more detailed and technical aspects of the private law insti
tution [of mandatum] could hardly have been known to the Peace
Conference as a whole-as distinct possibly from certain of its
members ... 3" (Italics added.)
Surely there can be no serions dispute about this, or about the corollary
that the broad nature of the concept was in all probability generally
known. Consequently, this "issue" too cornes to nothing. And, indeed,
Applicants' discussion of the ma11dati1m institution in reply to their above
rendering of Respondent's argument, merely leads them to the conclusion
that the principle of such institution-
"... was used to indicate that a colonial power was not entitled to
administer a colonial possession as beneficial owner. Rather, it would
receive a commission, or 'mandate', to administer the territory
solely for the benefit of the inhabitants. Hence, the term 'mandatory'
4
had corne to be synonymous with 'non-annexation' ".
Whether the principles referred to in this quotation (which principles
were admittedly incorporated in the mandate institution) derived from
the analogy of the institution of mandatum or from that of other fiduciary
institutions, seems to Respondent to be of no consequence 5•Accordingly
no space will be devoted to controverting Applicants' treatment of this
topic, or their conclusion, which, however, as far as its final sentence is
concemed, appears prima facie to do violence at least to the laws of
semantics.
29. However, despite the apparent premise on which Chapter VI is
based, viz., that the legal interest and responsibility of the "organized
1
IV, p. 531.
2Ibid., p.527.
3 li,p. 104.
• IV, p. 533.
' Vide para. 34, infra. REJOINDER OF SOUTH AFRICA 4r
international community" have already been demonstrated in an earlier
chapter 1,and despite the indications that it is directed solely or primarily
at attempting to controvert contentions supposedly advanced by Re
spondent, it is nevertheless possible that Applicants do attempt in Chapter
VI to state and develop a positive line of argument in support of their
"organized international community" theory.
Such argument, it will be recalled, must, in order ta be of any relevance
ta the issues before the Court, be directed at showing that the authors of
the Mandate intended the supervisory organsin respect of mandates ta
consist, not of the organs of the League as such, but of the Lea~e organs
in their capacities as constituting or reprcsenting the "orgamzed inter
national community" 2•In the succeeding paragraphs, Respondent will
attempt ta identify any such possible line of argument and ta demonstrate
its untenability.
Summary of Applicants' Apparent Contention
30. Applicants seem to contend the following:
(a) The essential feature of the municipal law concepts of trust and
tutelage (as well as of other fiduciary relationships) is a splitting
between control and benefit 3_
(b) "From this basic division between control and benefit flow two
consequences: there must be an accounting concerning the exercise
of the contrai; there must be supervision by a public authority 4."
(c) The obligation of a trustee or tutor ta account ta public authority
is "not an obligation resting on contract", but is "founded upon
public interest and public policy". The community has an interest
in, and responsibility for, the proper execution of such fiduciary
relationships s.
(d) For purposes of the mandate system, the institutions of trust and
guardianship were adapted to the needs of the international society,
and reporting by the Mandatory and supervision by the League
were incorporated in paragraphs 7 and 9 respectively of Article 22
of the Covenant as "necessary corollaries of the fiduciary character
of the mandates" 6•
(e) In Article 22 (1) of the Covenant, ".the organized international
community'' had undertaken a responsibility for, and manifested
an interest in, the promotion of the well-being and social progress
of the inhabitants of terri tories under mandate 7•
(I) By analogy with the concepts of trust and tutelage in municipal
law, "the duty of international accountability" in the case of
mandates was imposed in order to protect the public interest and
responsibility of the organized international community ta which
reference is made in sub-para. (e), supra 8•
1 Vide para. 26, supra.
2 Vide para..12, supra.
3 IV, pp. 527-530.
• Ibid., p. 530.
' Ibid., pp.534-535 and 538.
6 Ibid., pp. 531-532 and 538.
7 Ibid., pp. 534 and 538-539.
8 Ibid., p. 538. SOUTH WEST AFlUCA
(g) Consequently, in performing its supervisory fWictions with respect
to i\1andates, the League of Nations was acting as, or representing,
the "organized international community" 1•
(h) The United Nations has replaced the League of Nations as such
"organized international community" and Respondent's obligation
of international accountability is accordingly owed to the United
2
Nations in that capacity •
Since the above argument turns on the analogy between fiduciary
institutions in municipal Jaw and the international mandate, it would be
convenient to deal with it in two stages, viz.,
(a) what in municipal law are the nature and sources of public super
vision in regard to fiduciary institutions; and
(b) to what extent, and with what adaptations, was any such super
vision taken over into the mandate system.
Fiduciary 1nslitutions in Municipal Law
3r. Applicants state, it is submitted correctly, that a fondamental rule
of the trust institution is that the trustee is put in a position where he
controls the trust, yet must use it not for his own benefit, but for that of
another 3•Respondent also agrees with Applicants' contention that this
division bctween control and benefit is foWid in a large number of other
4
institutions in municipal law •Thus Quincy Wright quotes an authority
as saying:
"The no-profit-in-trust-administration rule has been applied to
agents, executors, administrators, attorneys, directors of corpor
ations, guardians, and others who are not strict trustees but whose
fonctions are like those of the trustee in that they act for others
and are entrusted with power over, and title to or possession of,
things to be used for the advantage of another. These quasi-trustees
have well recognized distinct names and classifications in the law.
There are also many transactions, situations and dealings which
cannot be tagged or placed in a particular compartment of the law,
but which nevertheless show a status of reliance on the integrity and
skill of another. The one trusted has received communications and
information, rendered services and given advice in a way analogous
to the transactions which occur in trusts and agencies. The one
trusted in a loose way acts for the other and has the power to affect
the latter's financial interests. Equity applies this no-profit mie to
ail thesc fiduciaries from the strict trustee down to the most remote
quasi-trustee in order to encourage fidelity and loyalty 5."
When regard is had to the wide class of fiduciary relationships referred
to above, ail of which involve a division between control and benefit 6,
1 lV, pp. 534-535 and 539.
2 Ibid., p539.
3 Ibid.p. 528; para. 30 {a), supra.
• Ibid., pp. 528-530.
~ Bogert, G., "Confidential Relations and Unenforceable Express Trusts", Carnel/
Law Quarter/y, XIII (Feb. 1928),,p. 248 as quoted by \Vright, Q., Mandales under
the League of Nations (1930), p. 388.
6 And many others may be added, such as certain types of servants and em
ployees, members of club committees, negotiorum geswres, etc. REJOINDER OF SOUTH AFRICA 43
it immediately becomes obvious that Applicants are wrong in saying that
one of the consequences of such division isthat "there must be supervision
by a public authority" 1, or that reporting to, and supervision by, such
authority are "necessary corollaries of the fiduciary character" of such
relationships 2• Such supervision is not as a matter of logic inherent in
the division between control and benefit, and, indeed, there must be few,
if any, municipal systems which provide for public supervision in respect
of all such relationships, or even most of them.
The true position is that the only obligation with respect to account
ability which is normally regarded as incidental in principle to a fiduciary
relationship, is the duty to render account to the beneficiaries. This duty
can of course be enforced by or on behalf of the beneficiaries by recourse
to the Court or some other public organ. ln the absence of such recourse,
however, no Court or other organ normally 3 plays any role with respect
to this duty to account.
32. In addition to the duty to account to the beneficiary, some form of
accounting to and/or supervision by a public authority has been introduced
in many systems, in respect of the performance of fiduciary obligations
falling in spccified categories. Such introduction, which commonly occurs
by way of legislation, has in no case of which Respondent is aware,
resulted in a uniform duty falling upon ail fiduciaries to account to, or
submit to the supervision of, some public authority. Much the reverse
is the position-in ail probability the majority of fiduciary institutions in
the civilized world are not subject to such supervision at ail, and where it
does exist, it does so by virtue of a special provision made ad hoc with
respect to a particular category of fiduciary institution. Thus one finds
that very large classes of relationships, e.g., those between principals and
agents, or masters and servants, are not generally subject to public
supervision at all, although particular types of agents or servants may be
so subject in certain systems (such as, c.g., certain types of brokers). And
even in the fiduciary relationship par excellence, namely the Anglo
American trust, public supervision appears to be the exception rather
than the rule. Thus in England, the home of the trust, there does not
appear to be any provision at ail for regular accounting to, or supervision
by, a public organ ~-And in the United States of America, according to
an authority quoted by Applicants, a duty to account in court before they
are discharged, is imposed on trustees or "at least, trustees acting under
a will", "in many states", but not ail. Other forms of accounting in court
are found only "in some states" 5.
33. Applicants proceed with a contention that the obligation to
account to public authority is "not an obligation resting on contract",
but is "founded upon public interest and public policy" 6•
This statement betrays a cardinal error of logic. "Contract" cannot be
compared or contrasted with "public interest and public policy"-the
tIV, p. 530.
2 Ibid., p. 538; para. 30 (b),supra.
3 I.e., in the absence of special provisionas dealt with in para. 3'l, in/ra.
• Vide Earl of Halsbury, The Laws of England, 3rd ed. (1962), Vol. 38, pp. 976-977.
White, C. M. and Wells, M. M., Underhill's Law Relating to Trusts and Trustees,
rnth ed. (1950), pp. 384-387.
' IV, p. 530.
• Vide para. 30 (c), supra. 44 SOUTH WEST AFRICA
two concepts are not comparable, the former being an actual source of
legal rights and obligations, whereas the latter is not. "Public interest"
or "public policy" cannot by itself create legal rights and obligations
for that purpose some form of legislation is required 1.Consequently the
true contrast is between contractual obligations, which (in municipal
law) are created by the acts of individuals in accordance with what they
conceive their private interests to be, and, on the other band, obliga
tions arising from legislation, which normally gives effect to the legisla
ture's conception of what is demanded by public interest and public
policy.
Respondent is prepared to accept that, where imposed, supervision by
public authorities in respect of fiduciary institutions falls within the latter
category. That by itself does not, however, appear to be of any assistance
in the present context. However much public interest may have been
considered in imposing a particular provision, the content or effect of
such provision can be determined only by ascertaining the intentions of
its author, as clerived from the provision itself and other permissible
material. This basic principle applies also to the matter under consider
ation. Whether an enactment which imposes a duty to account to a
public organ, also provides a substitute for such organ in the event of its
fallingaway, must necessarily tum on the interpretation of the enactment,
i.e., the ascertainment of the intention of its author. Ifit appears that its
author did not intend to make provision for such a substitution, then
there would exist no supervisory organ after the Japse of the organ
initially provided for. ln such case, "public policy" or "public interest"
or "community interest or responsibility" cannot step in to fillthe breach.
Only the legislature can remedy the omission if it considers it necessary
or desirable.
The highest effect which "public policy", "public interest", etc., could
possibly have by themselvès, is to raise a general consideration of prob
ability which could, depending on circumstances, serve as an aid in inter
preting a particular measure. This consideration would be to the effect
that the legislature would probably not wish a provision which serves the
public interest to become inoperative. Applied to the subject-matter of
supervision in respect of fi.duciary relations, this consideration could in
an appropriate case be invoked in support of a construction resulting in
substitution rather than lapse of a supervisory authority. However, two
points have to be borne in mind. The first is that a probability of this
nature can, even where the circumstances of a particular case afford it
exceptional weight, not be applied to the exclusion of other and more
prîmary aids to interpretatîon. Secondly, the probability would clearly
not arise where the measure to be interpreted was enacted at a stage when
the necessity for substitution was not a matter for practical consideration.
Since the necessity for substitution would hardly ever exist at the stage
of creation of the original supervisory authority, but is more likely to
arise at the stage of imminent dissolution of such authority, it follows that
the consideration of probability referred to above would-if applicable
1 Or, and this possibilitis probably theoreticalin regard to the subject under
consideration,some other recognized source of law, e.g., generalacceptance at
oommon law of the existence of a right or obligatiothe object and effect of which
is to protector advance public interestand public policy. REJOINDER OF SOUTH AFRICA 45
at all-norrnally play arole only when interpreting a measure enacted at
the latter stage.
The Analogy betweenthe International Mandate and Municipal
F iduciary Institutions
34. Whether the duty of accountability was introduced into the inter
national mandate by analogy to the municipal institutions of trust and
tutelage, as alleged by Applicants 1,or on the broad analogy of the duty to
account in the private law mandatum 2,or of ail three institutions, seems
to Respondent to be of no importance, since Respondefl;t agrees that
"[r]eliance was explicitly placed upon accounting and supervision as
means of insuring an effective splitting between control and benefit" 3•
What is important, however, is that the duty to account to a supervisory
organ was, as in municipal law, introduced by special provision, viz., by
a law-making, multipartite convention which, though resting on agree
ment between the parties to be bound thereby, was of a dass bearing
much resemblance to legislation in municipal law and which has, indeed,
often been descriptively referred to as "international legislation" 4.
Respondent is also prepared to assume that, in providing for super
.vision by the organs of the League, the authors of the mandate system
were influenced, inter alia, by the view that the proper executlon of
mandatory responsibilities was a matter of interest to the international
community generally. But, as with regard to municipal law, it is im
portant to bear in mind the different natures of the concepts involved in
Applicants' submission. Accountability to organs of the League could
not have been imposed by the international community as such. Ex
pressions such as "the responsibility and interest of the international
community" convey purely philosophical concepts. The "international
community" is not an entity capable of creating legal rules or bearing
5
rights and obligations •At most such responsibility or interest motivated
the law-makin~ body or bodies (in this case the Paris Peace Conference
and the Councll of the League) to make appropriate provision for super
vision, and the legal effect of such provision derives from the fact of its
incorporation in conventional or quasi-legislative instruments (the
Covenant and the mandate instrument) and not from its character as
giving effect to such responsibility or interest.
35. In order to determine the nature and content of the duty of
accountability, _itaccordingly becomes necessary, as in municipal law,
to examine and interpret the relevant law-making instrument. The
content of the duty of accormtability to be thus determined, must provide
the answer to the question whether provision was made for a substitution
of supervisory organs. This answer can consequently be obtained only
1 Vide para. 30 (d), supra.
2 II, pp. II5 (para. 2) and 117 (para. 5).
3 IV, p. 531. Respondent, of course, in this regard stresses, as Applicando not,
that accounting and supervision related to particular,speci.fied organs.
4
Thus Hudson (Hudson, :M..O.,International Legislation(1931}, Vol. I, p. xiii)
speaks of the term "international legislation"as being used to describe "both the
process and the product of the conscious effort to make additions to,or changes in,
the law of nations'', Vide also Lord McNair, The Law of Treaties (1961), pp. 729-739.
5 Applicants apparently contend to the contrary. Vide para. 42, infra. SOUTH WEST AFRICA
by ascertaining the intentions of the authors of the mandate system as
expressed or implied in the mandate documents.
Respondent has given its reasons why an intention to make provision
for substitution cannot be read into such documents. On analysis, the
only proposition which Applicants have adduced to counter Respondent's
reasons, is that "accountability" was regarded by the authors of the
mandate system as an essential element to protect the public interest in
the proper execution of the Mandate. Applicants do not, however,
attempt to correlate this proposition with the circumstances relied upon
by Respondent (and which they have not disputed or controverted). They
do not show why the "essentiality" of "accountability" would have
induced the authors of the system, in the circumstances then prevailing,
to make provision for the future succession of an undetermined body, in
unknown circumstances, to counter the effects of a situation (the disso
lution of the League) which they did not expect to arise and which could
be dealt with if and when it did arise. In other words, on the assumption
that "accountability" was indeed regarded as "essential", Applicants do
not demonstrate that the authors of the mandate system agreed to do
anything aboutit, or why the consequence would therefore not be that, in
case of dissolution of the League, the Mandate would have to be amended
or would lapse. (On the assumption that "accountability" was not con
sidered essential, the whole bas1sof Applicants' contention naturallv falls
away.) All this becomes the more evident from the fact that Applicants
do not show why, if there had been an intention to provide for succession
as regards supervisory organs, it was not expressed in the documents
themselves, or in any preparatory debate or negotiation, or why it was
not referred to in the later discussions on the subject.
Accordingly it is submitted that Applicants have failed to adduce any
arguments detracting from the validity of Respondent's submissions in
the present regard.
Further Authorities_Quoted by Applicants
36. In addition to the authorities referred to by Applicants in Chapter
Ill of their Reply, and discussed above 1,Applicants quote the following
authorities in support of their treatment in Chapter VI of their "orga-
nized international community" theory: _
(a) A statement by the Acting Secretary-General of the League as
follows:
"Co-operating in the fulfilment of their respective tasks, under
the searchlight of public opinion, the mandatory administrations
and the organs of the League of Nations have, in general, ensured
the application of the principles enunciated in favour of the natives
and of the Œmmunity of nations ."
1 Vide paras.21-23, supra.
2The Mandates System-Origin-Prinâples-Applicalion (1945), p. 6, quoted hy
Applicants in their Reply, IV, p. 535.(Italicsadded by Applicants.) Applicants'
misspelling of "Co-operating", "fulfilment" and "favour" corrected. lt is to be
noted that this isà qnotation from the same publication cited in support of the
"organized international commnnity" argument at IV, p. 237 of the Reply. Vide
para. 21 (e), supYa. REJOI~DER OF SOUTH AFRICA
47
(b) A statement by Paul Fauchille, as follows:
"Les régions sous mandat n'appartiennent pas au contraire au
mandataire, elles lui sont seulement confiéesen vue d'une gestion
conforme aux intérêts des habitants; en acceptant d'exercer le
mandat 'au nom de la Sociétédes Nations', le mandataire s'impose
des obligations, pour une mission de civilisation, vis-à-vis àe la
communauté internationale, comme le tuteur en contracte en accep
tantla tutelle ."
It is hardly necessary to state that neither of these authorities provides
any support for Applicants' contention that the "organized international
community" was an entity bearing legal responsibilities, that the super
visory organs of the League were appointed subject to the qualification
that they would hold the appointment only in a special capacity, viz., as
being or representing the "organized international community' ',and that
provision was thereby made f01: substitution of supervisory organs to
whose jurisdiction l\fandatories would be obliged to submit.
Conclusion
37. In the preccding paragraphs, Respondcnt has demonstrated that
Applicants' "organized international community" theory amounts to a
contention that a particular type of succession of supervisory organs was
2
provided for by implication in the mandate documents •Respondent bas,
it is submitted, shown conclusively that no provision of the type con
tended for can reasonably, let alone necessarily, be read into the relevant
documents.
In conclusion it must be noted that Applicants' contention that pro
vision was made for a succession of supervisory organs, is not a fortuitous
or incidental part of its argument, but represents an essential element
thereof. Nothing less would, in regard to the prescnt issue, have sufliced
to constitute a cause of action, i.e., allegations which, upon due proof,
would entitle a party to judgment. Thus, for instance, it would not have
been sufficient for thcm to allege that the authors of the Mandate intended
to, and did, creatc an obligation of "international accountability" or one
to submit to "international supervision", and that the League organs
were specified merely as the means for giving effoct to such an obligation.
Such a proposition (which Respondent disputes) would, even if accepted,
not by itself have entitled Applicants to judgment in respect of the
present issue. In this regard a finding of this Court in an analogous set of
circumstances, which arose as a result of the dissolution of the Permanent
Court, is apposite. A particular adjudication clause which arose for
consideration was construed by the Court as follows:
1 IV, p. 537. (lta.lics addeby Applicants.) The following is a free translatiof
the quoted passage:
"'The territories under mandate, by contrast, do not belong to the mandatory;
they are only entrusted toit with a view to an administration conforming to
the interests of the inhabitants;in agreeing to excrcise the mandate 'in the
name of the League of Nations' the mandatory bkes upon itself the obligations,
for a mission of civilization,towards the international community, as the
guardian in contract by acceptance of the guardianship."
2 Vide paras. 13-15, s«p,a. SOUTH WEST AFRICA
"lt was not the primary purpose to specify one tribunal rather
than another, but to create an obligation ofcompulsory adjudication.
Such an obligation naturally entailed that a forum would be indi
cated; but this was consequential."
Thereupon the Court proceeded to state:
"If the obligation exists independently of the particular forum ...
then if it subsequently happens that the forum goes out of existence,
and no provision is made by the parties, or otherwise, for remedying
the deficiency, it will follow that the clause containing the obligation
will for the time being become (and perhaps remain indefinitely)
inoperative, i.e., without possibility of effective application. But if
the obligation remains substantively in existence, though not
functionally capable of being implemented, it can always be rendered
operative once more, if for instance the parties agree on another
tribunal, or if another is supplied by the automatic operation of
some other instrument by which both parties are bound 1."
Applied to the present facts, this finding would entail that even if
Respondent should have been under an obligation in terrns of the Mandate
to submit to "international supervision" (and not, as Respondent
contends, to supervision by defined organs of the League). that by itself
could not have brought about a substitution or replacement of super
visory organs on the dissolution of the League. Such an obligation would
at that stage have become "inoperative, i.e., without possibility of
effective application", and could have been rendered operative once more
only by the legal substitution of some other supervisory organ, which
would have required Respondent's consent-unless, of course, such a
substitution had ab initio been provided for in the mandate documents.
Applicants have not even alleged that Respondent at or after the disso
lution of the League conscnted to such a substitution; nor could they
have any prospect of cstablishing such consent, in the light of the con
siderations set out in Respondent's treatment of the subject in the
Counter-Memorial 2•
Hence Applicants make the attempt, by means of the "organized
international community" theory, to establish that a substitution was
ab initio provided for in the mandate documents-an attempt which
must, in Respondent's submission, for the reasons herein given, also
fail. .
In view of the essential nature of Applicants' contention that the
implied provision relied upon by them involved a succession of super
visory organs, Respondent has in its argument up to the present confined
itself to the principle of such a contention, leaving aside Applicants'
specific formulation thereof. In the succeeding paragraphs, Respondent
will, however, analyse the concept of the "organized international com
munity'' as described by Applicants in the Reply, in order to demonstrate
that such description provides further reasons why Applicants' contention
should be rejected.
1Barcelona Traction, Light and Power Company, Limiled, Preliminary Objections,
Judgment, l.C.J. Reports I964, p.6 at pp. 38-39.Vide a!so p.96.
2Il,pp. r24-163 and videfurther paras. 45-51infra. REJOINDER OF SOUTH AFRICA
49
IV. THE "ORGANIZED INTERNATIONAL COMMUNITY" AS DESCRIBED BY
APPLICANTS
The Relationship between the "Organized International Community" and
the Leagite of Nations
38. Its relationship with the League of Nations is, in Applicants'
expositions, perhaps one of the most enigmatic features of the "organized
international community". At times Applicants speak as if the two
concepts were one, as if the League of Nations was the "Organized
International Community", until the latter, by some :{>rocessof meta
morphosis, changed into the United Nations. Thus a section of the Reply
is headed "The League of Nations as the 'organized international com
1
munity' " (italics added), to be followed by "The United Nations as the
'organizedinternational community' " 2• (Italics added.) The same form of
words is used at other places 3•
Elsewhere again, Applicants refer to the League as "an organized
international community", suggesting, by the use of the indefinite article,
that there existed, or was room for the e.xistence of, more than one
"organized international community". Thus they refer to-
"... Applicants' contention, already sustained by the Court, that the
Mandate was a 'new international institution', and that an essential
principle thereof was 'therecognition of ''asacred trust ofcivilization"
laid upon the League as an organized international community' 4".
(Italics in original.)
The problems of international metamorphosis are diflicult enough
when there is only one "organized international community" at a time.
Once the possibility of a number of simultaneously existing "organized
international communities" is conceded, the difliculties assume immense
proportions. Fortunately, however, as will be shown below 5,it is not
clear that on Applicants' version the "organized international communi
ty" does indeed change its.shape from time to time.
The submission that the League of Nations and the United Nations
successively constituted the organized international community, is, as
far as Applicants' argument is concemed, an innovation in the Reply.
In their Observations on the Preliminary Objections, Applicants con
tended consistently that these organizations represented the "organized
international community" 6•The change possibly constitutes an attempt
1IV, p. 525.
2Ibid., p. 537.
3
Vide, e.g., IV, pp. 533 and 537.
,• IV,p. 524. Vide also pp. 233 and 539. For Respondent's submissions regard
ing the true meaning of the italicized words, which appeared in the1962 Judgment,
vide para..22,supra.
' Vide para. 39,infra.
6 I, pp. 446-449. Applicants said,for example: "The only question is, which
representative of the organized international community does one look to, the
League of Nations or the United Nations, the organ in existence when the Mandate
was conferred or the organ now in existence?" (p.446} and, "... the authors of the
Covenant endowed the members of the League of Nations, the Organ then represent
ing the international community of civilized nations, with theright to institute
the juclicial proceeclings" (p. 449). 50 SOUTH WEST AFRICA
on Applicants' part to associate themselves with the language used by the
1
Court in 1962 to connote something entirely different .
39. The better elaborated portions of the Reply suggest that the
"organized international community" did not assume the form of the
League of Nations, but that at all times it retained a separate identity.
On this theory, the relationship betweei:i the two entities or concepts still,
however, remains obscure. Thus Applicants state thatthe League served
as "the then existing body politic of the organized international com
munity" 2, and as its "thenexistent political organ" 3; that the "organ
ized international community", was "then represented by the League" 4,
that the League "served ... the interest of the organized international
community, in sceing to it that [the inhabitants of mandated territories]
were adequately protected" 5; and that the League acted "in its capacity
as the only existing institution through which the organized international
community at that time could act" 6• (Italics added.) The last three
quotations suggest that the League acted in some instances as an agent
for the "organized international community", but could have acted in
other capacities as well.The earlier two point to a doser degree of identifi
cation, either as "body politic" (whatever the expression may mean in
the context) or as "political organ".
The Powers and Functions of the "Organized International Community"
40. In the absence of a systematic exposition in the Reply of the
alleged powers and fonctions of the "organized international community''
Respondent can only point to the specific aspects referred to in Appli
cants' argument. It appears that, according to Applicants, there was, by
the time of the Paris Peace Conference,
"... wide support for the principle that the organized international
community should be a legal party in interest to the disposition of
the colonial issue 7".
Consequently, at the Conference (as is apparently submitted), the
"organized international community" proceeded to draft the Covenant.
According to Applicants, Article 22 contained-
"... obligations of a legal nature, in accordance with the expressed
objective of the organized international community to afford Jegal
protection to the well-being and social progress of the inhabitants of
8
mandated territories, as a 'sacred trust of civilization' ".
But the "organized international community" did not only impose
these obligations of a legal nature on others, e.g., the Mandatories.
Applicants submit that this entity itself "... assumed responsibility of a
l Vide para. 22, supra.
2 IV, p. 534. "Body politic" is defined as "the nation in its corporate character;
the state" in Onions. C. '.f.(Ed.), The Shorter Oxford English Dictionary, 3rd ed.
(1959), p. 197.
3 IV, p.240.
• Ibid .p. 534.
! Ibid.,p. 535.
6 Ibid.,p. 538.
1 Ibid.,p. 237.
• Ibid.,p. 238. REJOINDER OF SOUTH AFRICA
sr
legal nature with regard to the tutclage of certain peoples" 1 in accord
ance with the principle-
"... that, as a matter of international law, the well-being and social
progress of [indigenous peoplcs in certain areas of Africa and Asia]
wouid be the responsibility of the 'organizcd international commu
nity,' insured by legal, rather than by solely moral, considerations 2".
This responsibility was not shirked by the "organized international
community". Straightaway, we are told,
"... manda tories ... were commissioned to exercise, on behalf of the
organized international community, a tutelage of peoples not yet
able to stand by themselves 3".
Lest there be any doubt as to who was responsible for appointing the
M.andatories, Applicants repeat:
"... the provisions for reporting to the League and supervision by
the League were intended ... as a commission, or mandate, from
the organized international community ... 1".
And, as shown above 4, the "organized international community"
allegedly obtained the services of the League of Nations to perform the
duty of supervising mandates.
This duty was transferred by it to the United Nations when the Lcaguc
was dissolved or when the United Nations became the "organized inter
national community" 5 .Since then, the "organized international com
munity·· has apparently been expressing its views through the organs
of the United Nations 6•
The Composition of the "Organized International Community"
41. What the composition of the "organized international community"
was (as gathered from the Reply), is closcly bound up with the problem
concerning its relationship with the League of Nations 7• Thus if the
"organized international community" actually was, successively, the
League of Nations and the United Nations, then the only difficulty about
ascertaining its composition would be to determine with which organiza
tion or association of States it was identified at any particular stage. So,
for instance, when draftingthe Covenant 8, the "organized international
community" presumably consisted of the signatories to the Treaty of
Versailles; and when it commissioned the Mandatories 8, it must have
partaken of the form of the Principal Allied and Associated Powers,
which appointed the M.andatories, and the Council of the League of
Nations, which "defined" the "degree of authority, control or adminis
tration" to be exercised by the Manda tories 9_A problem might also arise
t IV, p. 538
2 Ibid., p. 233.
3 Ibid., p. 534.
• Vide para. 39. supra.
s IV, pp. 537.540.
6 Ibid .. p. 540.
,(J Vide paras. 38-39, supra.
8
9 Vide para. 40, su/)f'a.
Art. n (8) of the Covenant of the League of Nations. Vide Il, pp. 15-22.52 SOUTH WEST AFRICA
as to its composition during the period of simultaneous existence of the
League and the United Nations, but this is probably not of practical
importance.
On the other hand, if, as appears more likely, Applicants contend that
the "organized international community" merely acted through the
agency of these various organizations or groups, the problem becomes
more difficult, if not, indeed, insoluble. At any rate, Applicants do not
supply any guidance as to the shape, size or composition of this concept or
entity which, on their reconstruction of history and law, played (and still
plays) such a vital role in international affairs.
Conclusion
42. To sum up, Applicants' "organized international community", on
which their whole succession argument depends, is not defined or ex
plained in the Reply, and an analysis of the references to itdiscloses a
complete confusion and lack of clarity as to its most essential attributes
-a further indication that the alleged intent which is in this manner
sought to be ascribed to the authors of the mandate svstem, is in truth
mere afterthought on the part of the propounders of the argument. It is
unthinkable that the authors of the Covenant would have granted legal
rights or interests to such an entity, or that the Mandatories would have
consented to be subject to supervision thereby.
In fact, Applicants' whole concept of the "organized international
community" is in confüct with the most basic principles of international
law. In order ta argue that the "organized international commun
ity" possessed legal rights and interests, and granted legally effective
commissions or mandates, Applicants would be constrained to contend
that it was a legal persona. However, it is still an open question whether
even the League of Nations, a specific international body with a con
stitution and with defined corporate functions, ever possessed legal
personality 1. A fortiori the "organized international community",
an undefined and amorphous concept, could hardly, at any rate at the
time of creation of the mandate system, have been accepted as a legal
persona.
Finally, the picture of an "organized international community" acting
as something distinct from the ).Iandatories and imposing its will on them,
is an entirely unrealistic one. ln fact, on any conception of the "organized
international community" (includirig that of the Applicants), the Manda
tories large/y dictated the policy pursued by it with respect to mandates.
Thus, whether as Allied Powers, or as Members of the Council of the
League, or as Mandatories, France, Japan, Belgium and Great Britain
and its Dominions played vital roles in the creation and opera tian of the
mandate system.
In this regard Duncan Hall says, referring to the debate in the "Council
of Ten" on 30 January 1919, during which, inter aüa, the British Domin
ions stated their attitudes on the proposais regarding the future of certain
German colonies 2:
"It was the governments taking part in this debate that, by their
agreement, created the mandate system. It was they that drafted
1 Vide li,pp. 207-208.
2 Ibid., pp.II-12. REJOINDER OF SOUTH AFRICA 53
the self-imposed limitations of the mandate charters. It was they
that put the system into operation, weakened though it was by the
absence of the United States 1."
He continues by stating that it was these governments-
"... that sustained it [i.e., the Mandate System] and made it effective
by their loyal cooperation with the central organs of the League
during the twenty-six years of the League's life 1".
For the whole period of the League's existence, the learned author
points out, the relationship between the League and the Mandatory
Powers remained as described by Mr. Balfour in the Eighteenth Session
ofthe Council, when he said:
"... 'mandates were not the creation of the League, and they could
not in substance be altered by the League'. He further pointed out
that 'a Mandate was a self-imposed limitation by the conquerors on the
sovereignty which they exercised over the conquered territory. In the
general interests of mankind, the Allied and Associated Powers had
imposed this limitation upon themselties,and had asked the League to
assist them in seeing that this general policr was carried out, but
the League was not the author of it .. .' ." (Italics added and
footnote omitted.)
C. The Events during the Years 1945-1946
43. In regard to the events during the years I945-I946, Applicants
say:
"Consistenlly with the /oregoing [i.e., with the 'organized inter
national community' theory], and as was to be expected in the light
of [the overriding purpose of the Mandate to promote 'the well-being
and development' of the people of the Territory], the proceedings at
the period of the dissolution of the League of Nations and the orga
nization of the United Nations, manifested the clear intention of all
concerned to preserve and assure proper discharge by the organized
i·nternational community 11:ithrespect toits responsibilities toward the
inhabitants of mandated territories2."{Italics added.)
Applicants consequently do not contend that the events of I945-I946
created any new basis for the succession of supervisory organsin respect
of mandates. Such a contention would indeed have been inconsistent with
their "organized international community" theory, which involves that
the Mandate carried within itself the method of substitution of super
visory organs, thus rendering any special provision in I945-I946
unnecessary. Applicants therefore rely on the events during those years
as merely manifesting an intention to preserve and assure proper discharge
of the responsibilities of the "organized international community".
Consequently, if, as Respondent submits, Applicants' whole argument
based on the asserted legal responsibility of the "organized international
community" is unsound, their submissions regarding the effect of the
1 Hall. H. D.• Mandates, Dependencies and Tmsteeship (1948),p. 117.
2 IV, p.539.54 SOUTH WEST AFRICA
events during 1945-1946, being based on the existence of such responsi
bility, cannot assist them 1•
44. Applicants do not present any argument in support of their inter
pretation of the events of 1945-1946. lnstead, they rely solely on the
Judgment of the Court in rgt,2, and particularly the following passage:
"... obviously an agreement was reached among all the Members of
the League at the Assembly session in April 1946 to continue the
different l\fandate.s as far as it was ,p,racticallyfeasible or operable with
reference to the obligations of the Mandatory Powers and therefore
to maintain the rights of the Members of the League, notwithstanding
the dissolution of the League itself 2". (ltalics added.)
As will be noted in the succeeding paragraphs, neither the 1962 Judg
ment as a whole, nor the above-quoted passage, assists Applicants. On
the contrary, they militate against acceptance of Applicants' submissions.
45. ln the first place, the purport of the agreement which the Court
considered to have been reached in April 1946, was, in the Court's words,
to "continue the different Mandates ... with reference to the obligations
of the Mandatory Powers"-the implication therefore being that, but for
such agreement, the Mandatories' obligations, or at least some of them,
would have lapsed. Consequently, to rely on such an agreement as a basis
for keeping supervision alive, would be inconsistent with Applicants'
submission, which relies on the implication of a provision in the mandate
documents which would, by itself and without further agreement, have
ensured the continuation of supervision in respect of mandates.
46. Secondly, Respondent has shown, relying on the italicized portions
of the above-quoted passage aswell as on other extracts from the Judg
ment, that the finding of an agreement in 1946 (which relates to the sur
vival of the comfrromissory dause) is inconsistent with a view that a
transfer of supervisory functions was effected from the League to the
United Nations 3• Applicants refrain from dealing with Respondent's
submissions in this regard. Furthermore, they do not indicate how the
Court's holding of an "[a]greement ... among all the Members of the
League at the Assembly session in April 1946" (italics added) can consti
tute authority in support of their contention in so far as it is based on
"... the proceedings at the period of ... the organization of the United
Nations ... " -t.(Italics added.)
The finding in the Judgment of an agreement in I946 was arrived at
by only five of the members of the Court, and from the varions opinions
on the Preliminary Objections it seems evident that the finding was a
matter of sharp controversy hetween the members of the Court as a
1
On the other hand, if Applicants' "organized international community" theory
were to be correct, it does not seem that there would have been any fonction of
any kind in respect of Mandates left for the League to perform at its final meeting
in April 1946, since the United .Nations, which at that stage had more ;l;lembers
than the League (vide II, p. 33 and Mado!, H. R. (Ed.}, The United Nations
Association Yearbook r947, pp. 29 I-292} would presumabl y have replaced the League
as "'organized international community" even before the latter's dissolution (vide
para. 15, footnote 1, supra}.
2 South West Africa, Preliminary Objections, Judgment, l.C.J. Reports r962, p.319
at p. 338 as quoted in IV, p. 539.
3 Il, pp. 157-159.
4
IV, p. 539· REJOINDER OF SOUTH AFRICA 55
whole. Whatever the justification might be for finding that such an agree
ment was arrived at regarding maintenance of "the rights of the Mem
bers of the League" 1, to which aspect the finding was carefully con
fined, the facts pertaining to the deliberations of 1945-1946, and to dis
cussions during the first few years thereafter, make it quite clear that no
such or similar agreemen 4 could have been entered into relative to admi
nistrative supervision in respect of mandates. This topic is fully dealt
with in the Counter-il/lemorial 2, and Applicants nowhere in the least
attempt to controvert or evcn to deal with the facts and arguments there
advanced 3.
47. Applicants refer also to other passages from the Judgment 3• At
no stage do they, however, join issue with Respondent's careful analysis
of the Judgment as a wholc \ which led it to the conclusion that-
" ... no clear inference can be drawn as to the Court's view on the
question whether the League's supervisory functions regarding
i\landates have been taken over by the United Nations-although
Respondent submits, ... that on balance the reasoning is inconsist
ent with such successsion 5 ".
48. Indeed, Applicants do not even indicate how the passages quoted
by them from the Judgment can be said to support their contentions.
They merely state:
"No 'new facts', or other relevant evidence, are adduced by Re
spondent to justify reopening or reconsidering of issues twice previ
ously presented to the Court and twice decided by it 6". (Italics added.)
In fact, the issue rclating to the lapse of the Leaguc's supervisory
fonctions has been decided by the Court only once, viz., in the Advisory
Opinion of 1950 7• In the Preliminary Objections procecdings it was also
argued, but, as Respondcnt has demonstrated 8,far from the 1962 Judg
ment standing in Respondent's way in its re-argument of the ~ssue re
garding Article 6 of the Mandate, it provides considerable support for
Respondent's contentions. In addition, Respondent has (despite what is
said by Applicants) presented the Court Wlth vital factual information
which was not placed before the Court for the purposes of its Advisory
9
Opinion in 1950 ,and these facts (or at least some of them) have indeed
been regarded by some members of the Court as of great importance for
the purposes of the issue under consideration 10.Applicants do not make
any attempt in their Rcply to present argument for the purpose of im
pugning this factual information or its importance. Instead, as indicated
in the next paragraph, they avoid dealing with it.
49. Applicants make the unmotivated statement that "[i]n its Judg-
1
As to which, see Respondent's submissions in II, pp. 240-253-not replied to
at ail by Applicants.
2 Il, pp. 124-163.
3 Vide also paras. 48 and 49, infra .
• Il, pp. 156-161.
' Ibid., pp. 16o-161.
6 IV, p. 539, footnote 6.
1 Vide paras. 4-6, supra.
8 II,pp. 152-163, and para. 6, supra.
9 II, pp. 146-148 and earlier passages there referred to.
10Ibid., p.156 (para. 58). SOUTH WEST AFRICA
ment of 2I December r962, the Court referred to its Adivsary Opinion of
r950, and rejected Respondent's contentions in ail respects" 1.
For the reasons referred to above 2, this statement is incorrect, par
ticularly as regards Respondent's submission concerning the lapse of
supervision by organs of the League.
Applicants, however, repeat this incorrect statement and make use of
it to avoid dealing with the additional factual information presented by
Respondent.
Thus they say:
"Ail such assertedly 'new facts' were placed before the Court in
the Preliminary Objections and in Respondent's Oral Arguments
thereon. The Court nonetheless reaffirmed its Advisory Opinion
and, in the words of the Court:
'AHimportant facts were stated or referred to in the proceed-
ings before the Court in 1950.'
Accordingly, no purpose would be served by showing, as Applicants
submit, that Respondent's reiteration of the alleged 'new facts' add
(sic) nothing 'new' 3." (Footnote omitted.)
50. Indeed, irrespective of whether this factual information was known
to the Court in 1950 or not •. Respondent submits respectfully that on ail
the information before this Court, it will hold that the 1950 Advisory
5
Opinion was incorrectly decided in respect of the issue under discussion •
51. Finally, Applicants say:
"As has been shown, and as is obvious /rom the history of the Man
date since the inception of the United Nations, that Organization has
consistently maintained its right and duty to exercise supervisory
authority over the Mandate, and such a position has reflected the
virtually unanimous expression of the organized international com-
munity 6." (Italics added and footnote omitted.) ·
The "as has been shown" refers back, by way of a footnote in the
Reply, to the "History of the Dispute since 1960" 7, and certainly not to
"the history of the Mandate since the inception of the United Nations".
In fact, Applicants have not sought to contest (except with the above
unsubstantiated statement) Respondent's demonstration of the position
taken by Members of the United Nations prior to the 1950 Advisory
Opinion, viz.:
(a) Up to the year 1947, no Member of the United Nations voiced any
contradiction to Respondent's contention that in law the United
Nations was not vested with supervisory powers in respect of the
Mandate for South \Vest Africa, although 41 Memhers took part
2 IV, p. 550.
Vide para. 6, supra.
3 IV,p. 552.
• Asto which Respondent abides by its above submission.
~ Applicants frequently refer ta what they cal! "the law of the Case". (Vide, e.g.,
IV, pp. 476, 524, 538 and 552.) This is apparently some doctrine associated with
the res fudicalaprinciple. Vide, however, Chap. II. para. 2,supra as to the attitude
adopted by Applicants on the question whether issues decided in the Advisory
Opinion are in law res fudicala.
6 IV, pp. 539-540.
7 Ibid., pp. 222-230. REJOINDER OF SOUTH AFRICA 57
in debates on South West Africain that year and New Zealand had
adopted a similar view in relation to Western Samoa.
(b) Over the years 1947 to 1949, at least 24 States Members of the
United Nations (other than Respondent), in participating in de
bates in the organs of the United Nations, or in expressing views
in its agencies, whether relative to the Mandate for South West
Africa or to other Mandates such as Palestine and the Japanese
Mandated Islands, either expressly or by clear implication acknow
ledged that, in the absence of a Trusteeship agreement, the United
Nations would have no supervisory powers over a mandated terri
tory. These States were: Australia, Canada, China, Colombia, Costa
Rica, Cuba, Czechoslovakia, France, Greece, Guatemala, lndia,
Iran, Iraq, the Netherlands, New Zealand, Pakistan, Peru, the
Philippine Republic, the Soviet Union, Sweden, the United King
dom, the United States of America, Uruguay, Yugoslavia.
(c) Up to 1949 only five States voiced any contradiction to the pro
position aforestated. These States were Belgium, Brazil, Cuba,
lndia and Uruguay. In the case of the last-mentioned three States,
the attitude adopted by them in 1948 and 1949 was in conflict
with their earlier contentions, and in the case of lndia also with
its contentions before this Court in 1950. And in no case was the
contradiction based on any implications in the mandate documents
or a suggested agreement or understanding (other than Article
80 (1) of the Charter) arrived at during the period 1945-1946.
(d) At no time up to 1949 was any such contradiction voiced by either
1
of the Applicant States, Liberia or Ethiopia .
D. Conclusion
52. In the result, Respondent's argument on the lapse of its Procedural
Obligations has in major respects been left unanswered, and it is submit
ted that the validity of that argument is not affected by anything con
tained in the Reply.
1II,pp. 140-r.p. CHAPTER IV
THE LAPSE OF THE MANDATE AS A WHOLE
A. General
I. THE PURPORT OF RESPONDENT's CONTENTION
1. Before considering any arguments raised in the Reply relative to the
question whether the Mandate as a whole has lapsed, it may be conve
nient to recapitulate briefly Respondent's contention in this regard. It
will be recalled that Respondent's basic contention in the Counter
Memorial, as in this Rejoinder, is that the provisions regarding super
vision of mandates by organs of the League of Nations lapsed on the
dissolution of the League. This contention is based on the provisions of
the instruments concerned, read in the light of all relevant circumstances,
as well as on an examination of ail material facts and legal principles
which have been or could be suggested as bearing upon the possibility
of succession to the League's supervisory fonctions by organs of the
United Nations 1• Respondent's contention regarcling supervision is
therefore not dependent on, nor is it qualifi.ed by, any contention or ar
gument raised by Respondent in regard to other issues, but falls to be
considered by itself and on its own merits. In particular, as has been
noted 2, it is not based on any "premise that 'the Mandate as a whole
has lapsed' ", as alleged by Applicants.
2. The lapse of the provisions regarding supervision hy the League,
however, raises the further question whether the Mandate was capable.of
continued existence to any extent whatever once such provisions became
impossible of performance 3• In the Counter-Memorial 4, Respondent
commenced its treatment of this question by accepting, with refcrence
to views expressed at the Preliminary Objections stage by certain mem
bers of this Court, that there was nothing notionally impossible in the
idea of severability or separability of treaties or institutions. The correct
ness of this attitude has been confi.rmed by later pronouncements of
other members of this Court. Thus Judge l\Iorelli said in the Barcelona
Traction case:
"If a treaty creates obligations for the contracting States and at
the same time provides for the intervention of a certain organ in
connection with the performance of those obli~ations, the obliga
tions may well continue to exist despite the d1sappearance of the
organ which is not necessarily bound to entai! more than the extinc
tion of the powers of the organ and of the subjection of the States
toit 5."
1 Vide IV, Counter-Memorial, Book II, Chap. IV and also Chap. III, supra.
2 VideChap. III, para. z, supra.
3 Il, p. 164.
• Ibid., p.165.
5 Barcelona Trnclion, Light and Power Company Limiled, Preliminary Objections,
judgmenl, l.C.J. Reports 1964, p. 6 at p. 96. REJOINDER OF SOUTH AFRICA 59
And in the same case, Judge Armand-Ugon stated:
"The separation of international obligations as between clauses
that are valid and clauses that are not valid is admitted in the case
law of the Permanent Court."
After rcferring to examples, he proceeded:
"The idea of the integral character of a convention has its origin
in a notion taken from private law. In the Opinion of the Court on
Reservations, this notion of the absolute integrity of conventions
was rejected as not having been transforrned into a rule of inter
national law ... An article which has lapsed may quite properly be
separated from other provisions of the treaty which continue to be
in force where such provisions can apply quite apart from the pro
vision that has lapsed 1."
3. In view of the possibility in law of a partial lapse of treaties or in
stitutions, there is no simple or obvious answer to the question whether
the Mandate as a whole lapsed when supervision fell away on dissolu
tion of the Lcague. It cannot be said, and Respondent has not contended,
that the element of Leaguc supervision possessed a quality of such ab
solute essentiality that the whole Mandate became objectively or me
chanically inoperable upon the dissolution of the League. Indeed, most
of the obligations under the Mandate are quite capable of existence and
performance without any supervision. However, as pointed out in the
Counter-illemorial,
"[a]n institution may, after dismemberment of sorne of its parts,
still be capable of performing some of its erstwhile functions, al
may be entirely ineffcctivc to advance
though such performance 2
the purposes for which the institution was created ".
Herc again it must be conceded that the substantive purposcs for which
the mandate institution was created can still be advanced, even in the
absence of supervision. But be that as it may, the question whether the
Mandate as such is to be regarded as still being in force, in such a reduced
form, is one the answer to which must depend on the intentions of the
authors of the Mandate 3•
However, inasmuch as the future dissolution of the League was in
fact not contemplated at the stage of its foundation \ it fo!lows that the
authors of the Mandate could not have had any actual intention regard
ing the continued existence or otherwise of the :Mandate in the cvent of
such dissolution. The present enquiry must, thereforc, relate to their
presumed rather than their actual intentions. And the main guide to the
presumcd intentions of the authors of the Mandate in the respect under
consideration is afforded by an appraisal of the role intended to be played
by, and degree of importance attached to, League supervision as an
element in the mandate system 5.
+ Respondent must concede that the question thus placed before the
Court is not an easy one. That the duty to account to, and submit to the
1 Barcelona Traction, Lighl and Power Company Limited, Preliminary Objections,
judgment, I.C.J. Reports r964, p.6 at p.145.
:lIl,p. 166.
3 Ibid.,p. 165.
• Vide Chap. III, para. 16,supra.
~ II, pp. 166-167.60 SOUTH WEST AFRICA
supervision of, the Leagne, formed an important element of the mandate
system, is not open to doubt. On the other hand, whether it was regarded
by the authors of the system to be of such importance as to constitute a
sine qua non of the whole system, must necessarily to a certain extent
remain a matter of speculation, evaluation, or judgment, on which no
definite proof either way can be produced.
ln the Counter-Memorial Respondent showed that opinions have
differed on this point. Thus Respondent interprets the 1950 opinions as
holding that the Mandatory's duty of report and accountability was
severable from other aspects of the mandate institution 1. However,
certain views expressed in the Judgment and in the separate opinion of
Judge Bustamante on the Preliminary Objections, appear to be in con
filet with the 1950 opinions on this aspect 2• Reference was also made in
the Counter~l\'lemorial to the importance attached by various States to
the duty of report and accountability. In view of Applicants' total rejec
tion of even the possibility that the Mandate may have lapsed in toto, it
may be useful to have some more detailed regard to the attitudes which
emerged on the part of various States, at and shortly after dissolution
of the League, on the question whether mandates in general, and the
Mandate for South West Africain particular, were still in force. This is
done in the next succeeding paragraphs.
5. At the time of the dissolution of the League, there cannot be said
to have been an explicit, uniform statement of opinion on the part of
the States concerned regarding this question. Nevertheless certain indi
cations afforded are of considerable significance.
It will be recalled that at the final session of the League Assembly,
the varions members of the League administering territories under
mandate expressed their intentions as to the situation that would apply
pending "other arrangements" 4.and that in the final resolution of the
Assembly regarding mandates the general purport of these intentions
was descrihed as follows:
" ... to continue to administer them [the territories] for the well
being and development of the peoples concerned in accordance with
5
the oblîgations contained in the respective mandates ... ".
It will also be recalled that in the actual statements, the "expressed in
tentions" were carefully confined to the administration of the territories
as above described, and that some of the statements pointedly intimated
that there would be no accounting in accordance with the Mandates to
a supervisory authority 6•
The wording of the resolution itself, read against this background,
was obviously very carefully chosen. It was equally consistent with two
possible points of view. The first of these would be that accountability
to a supervisory authority was not an essential for the varions mandates,
and that the mandates could therefore continue in force without this
feature. When regard is had to the wording employed in the actual
1 Il,vide also Oral Proceedings,3 Oct. 1962.
z li,p. 168.
' Ibid.,pp. 167-168.
4 Ibid.,pp. 46-49.
5 L. of N., O.]., Spec. Suppl. No. 194, pp. 278-279, as quotedin II, p. 52.
6 Il, pp. 136-137. REJOlNDER OF SOUTH AFRICA 61
declarations, the following are examples which would prima facie seem
to indicate adherence to this view:
New Zealand:
"New Zealand does not oonsider that the dissolution of the League
of Nations and, as a consequence, of the Permanent Mandates
Commission will have the effect of diminishing her obligations to the
inhabitants of Western Samoa, or of increasing her rights in the
terri tory . . ."
Australia:
"After the dissolution of the League of Nations and the consequent
liquidation of the Permanent Mandates Commission, it will be
impossible to continue the mandates system in its entirety.
Notwithstanding this, the Government of Australia does not
regard the dissolution of the League as lessening the obli~ations
imposed upon it for the protection and advancement of the mhabi
tants of the Mandated territories, which it regards as having still
full forceand effect 2."
South Africa:
"The disappearance of those organs of the League concerned with
the supervision of mandates, primarily the Mandates Commission
and the League Council, will necessarily preclude complete compli
ance with the letter of the mandate. The Union Government will
nevertheless regard the dissolution of the League as in no way
diminishing its obligations under the mandate ... 1"
6. The other possible view with which the wording of the League
resolution was in consonance, would be that indicated in the following
passage in the joint opinion of Judges Spender and Fitzmaurice on the
Preliminary Objections:
"... all this could be regarded almost as a recognition that, upon
this dissolution, the Mandates, as such, would cease to be in force,
but that, pending other arrangements, the territories concerned
would, in relation to their inhabitants, continue to be administered
as if the Mandates were still in force, or on the same basis as that of
the Mandates. What the League was concerned with was ... the
interests of the indigenous peoples, and to be assured of 'the con
tinued application of the principles of the Mandate System' 3."
(ltalics in original text.)
In discussing this proposition further, the said two members of the Court
spoke of" ... the basis that the dissolution of the League might be re
garded as terminating thewhole Mandates System" and added: " ... which
iswhat we think those in Geneva had in mind ... " 4. (ltalics in original
text.) Adherence to this point of view would seem to be indicated par
ticularly in the following two statements by Mandatories:
United Kingdom:
"... it is the intention of His Majesty's Government in the United
1 li,p. 47.
2 Ibid.,p. 48.
3
South West Africa, Preliminary Objections, Judgment, I.C.J. Reports z96p.319
at4pp . .528-529.
Ibid.,p. 529.62 SOUTH WEST AFRICA
Kingdom to continue to administer these territories in accordance
1
with the general principles of the existing mandates ".
France:
"The French Government intends to pursue the execution of the
2
mission entrusted to itby the League of Nations ."
Indeed, when the statements bv New Zealand, Australia and South
Africa are read as a whole and in their context, then, despite the prima
/acie impact of the extracts referred to above, it is possible to reconcile
them also with the second point of vie,y. The accent would for this pur
pose fall on the word "considers" in the case of New Zealand and "re
gard" in the case of Australia and South Africa-the significance being
that even though the mandates may, as such, ccase to be in force, these
l\Iandatories would nevertheless consider or regard their obligations in
respect of the inhabitants of the territories as not being extinguished or
diminished.
7. Judges Spender and Fitzmaurice, with refercnce to the above
mentioned second view of the situation, proceeded to mention a possi
bility on which they did not consider it necessary to express a decided
view, viz.,
"... to imply (on that basis) from what was said, an undertaking to
continue to apply those provisions of the l\landate which had refer
ence to the inhabitants of the territory, and were not, according
to their terms, directly dependent on, or harnessed to, the contin
ued existence of the League or of League Membership 3".
Respondent bas already contended in the Counter-.Memorial 4 that
the statements by the l\fandatories concemed were expressions of
intention only, as they were indeed described in the Leaguc resolution,
and that they could not be regarded as promises or undertakings in
tended to create rights or obligations vis-à-vis other States. Applicants
have in no way attempted to controvert or even to deal with this con
tention or with the reasoning advanced and authority cited in support
thereof, and Respondent abides thereby. In addition, however, Respond
ent may point out that if the Court should hold to the contrary, viz.,
that the statements in question resulted in legal obligations rcgarding
administration of the territories and the well-being and development of
the pcoples concemed, then the practical result would be the same as
that of a finding that the Mandate has survived but without account
ability to a supervisory authority. Further reference in this part of the
Rejoinder to a possible finding that the Mandate has survived without
accountability, is therefore to be understood as including the possibility
of a survival on the basis of such a special undertaking on the 1\Ianda
tory's part, except where the context or an express qualification indi
cates otherwise.
What is of particular importance is that the duality dealt with above,
relative to the proceedings regarding Mandates at the last session of the
1
II, p. 46Vide also p. 136 as to the further light cast on this statembytthe
report of the United Nations Special Committee on Palestine.
3 Ibid., p. 47.
South West A/rica, Preliminary Objections, Judgment, l.C.J. Reports I96z,319
at p. 529. ·
4H, PP· 246-247. REJOINDER OF SOUTH AFRICA
League Assembly, concems the choice between the two alternatives
contended for by Respondent, viz.,
(a) lapse of the whole Mandate, or altcrnatively,
(b) survival of the Mandate without accountability to a supervisory
authority,
to the clear exclusion of the result contended for by Applicants, viz.,
survival of the Mandate together with accowitability to the United
Nations as an integral part thereof.
8. In the years following immediately on the dissolution of the League,
one finds the same duality as above in attitudes expressed by States in
proceedings of the United Nations.
A number of States expressed themselvcs to the effect either that the
Mandate had lapsed or, at least, that it was open to serious question
whether it could still be in force. As examples reference may be made to
the following:
United States of America:
Statement in 1947 in the Fourth Committee that Respondent
". . . had no legal title to the terri tory at present, because its 1
only title was a Mandatory under the League of Nations" ,
and a later reference in the Trusteeship Council to "... the pre
sent mandate, admitting that it exist 1' .
Soviet Union:
Statement in the General Assembly (Plenary) in 1947 that-
"... the South African Govemment ... set up an absurd juridical
status for South West Africa which consisted in the administration
of South West Africa being carried out 'in the spirit of the League
of Nations .Mandate' ... absurd ... now, in 1947, after the League
of Nations and the mandate system have ceased to exist 1".
In 1948 in the Trusteeship Council that-
"... the status of the Territory was at present undetennined ... it
should not be forgotten that both the mandate system of the League
of Nations and the Permanent Mandates Commission no longer
existed. Hence, there was no legal basis for the administration of
that Territory by the Union of South Africa 2."
France:
Reference in I947 in the Trusteeship Council to "... the former
mandated Territory of South West Africa ... " 3•
And a statement in 1948 in the Fourth Committee that-
" ... the Trusteeship System had been substituted for the Mandate
System. Once the League of Nations had ceased to exist, so had the
institutions which functioned under its aegis . . . there remained
nothing of the Covenant of the League of Nations except its moral
influence ... The South African Government had on several occa
sions expressed its desire to administer the Territory ... in the
1
II,p. 28r.
3%Ibid.,p. 283.
Ibid.,pp. 276-277, SOUTH WEST AFRICA
spirit of the Covenant. It accepted the moral obligation of ensuring
the well-being and the development of the population . . . 1."
United Kingdom:
Reference in I948 in the Trusteeship Council to the fact that
"... South West Africa ... was fonnerly under mandate" 2•
China:
Statement in the General Assembly (Plenary) in 1947 that-
"... we ail know that the mandate system has ceased to exist and
that the Trusteeship System bas been established. Would it not be
more desirable, to administer the Territory in question [South West
Africa] under a living system than under the shadow of a ghost
system? 3"
Colombia \ Iraq 5, Uruguay in 1947 6, and Costa Rica 6, ail stated
explicitly that in their view the Mandate was no longer in force.
7
Cuba in I947 4, and the Netherlands in the same year implied the
same.
The United Nations Special Committee on Palestine, consisting of
II States 8, which reported in 1947, was emphatic on the point that
there could no longer be accounting to a supervisory authority in tenns
of a mandate, and as a result considered that it might "be seriously
9
questioned" whether a mandate could now exist in law •
Allowing for overlapping in the case of two States (the Netherlands
and Uruguay), the above makes a total of 20 States which either con
sidered that the Mandate was no longer in force, or at least seriously
questioned whether it could still be in force.
9. On the other hand there were, in the years immediately following
the dissolution of the League, aL,;ostatements and other indications of
views that the Mandate was stillin force. Particularly in the first two
years after the dissolution of the League of Nations, these statements
were, however, often not very explicit. ln many instances a view that the
Mandate was still in force can be deduced only from the unqualified use
ofexpressions such as "the Mandated Territory" or the "present Man
date". Sometimes such expressions were, in the respect under discussion,
ambiguous. As will be seen, some of the States were also not con
sistent in their attitude. As examples of statements to the effect that
the Mandate was still in existence, reference may be made to the follow
ing:
Pakistan:
Reference was made in 1947 to "the present Mandate system" 10•
1
II, p. 283.
3 Ibid., p. 284.
Ibid., pp.275-276.
• Ibid., p276.
6 Ibid., pp.277-278.
Ibid., p282.
7 Ibid.,p. 278.
1 Australia, Canada, Czechoslovakia, Guatemala, India, Iran, the Netherlands,
Peru, Sweden, Uruguay and Yugoslavia.
• Il,pp. 6g and 167.
10 G.A., O.R., Second Sess., Vol. I, 105th Plenary Meeting, I Nov. 1947, p. 618. REJOINDER OF SOUTH AFRICA
Australia:
Speaking in r947, an Australian delegate said that control of the
Territory by South Africa as a "Mandatory Power" was a "situa
tion which has existed ever since the end of World \Var I" 1.
Denmark:
Reference was made in r948 to South West Africa as a "Mandated
Territory" 2•
Daminican Republic:
A delegate said in r949 that it was "indisputable that the r920
Mandate was stiH in force" 3•
France:
A statement was made in 1949 that-
"[t]he Territory of South West Africa had not been placed undeI"
the Trusteeship System; it therefore remained under the mandate
system. The Fourth Committee, however, was not able to take
the place of the Pem1anent Mandates Commission, which had
been differently constituted "."
Liberia:
Stated in 1949 that ". ·.. South West Africa was a Mandated Terri
tory and it did not form part of the Union of South Africa" 5•
The above States did not couple their statements regarding the survi
val of the Mandate with any contention that the United Nations had
replaced the League Council as supervisory organ-where they contended
that Respondent was under an obligation to render account, such conten
tion was based on an alleged duty to conclude a trusteeship agreement
or to fumish information in terms of Article 73 of the Charter. In addi
tion, however, as has been noted 6, certain States adopted the attitude,
but only as from the end of r948, that the Mandate had continued in
existence, and that a succession of supervisory organs had taken place.
They were Belgium, Brazil, Cuba, lndia and Uruguay.
7
Reference was also made in the Counter-Memorial to certain incon
sistencies in the attitude of some of these States on the question of ac
countability. It may be instructive to note also the uncertainty displayed
by one of them, i.e., Uruguay, regarding the survival of the Mandate.
In the 1948 address referred to in the Counter-Memorial 8, in which it
was stated that Article Bo (i) of the Charter "clearly safeguarded the
rights of indigenous populations", the distinguished representative later
said that-
"... the Union of South Africa no longer possessed any juridical
1 G.A., O.R., Second Sess., op cit.,p. 585. Vide also p. 581.
2 C.A., O.R., Third Sess., Part I, Fourth Comm., 81st Meeting, 16 Nov. 1948,
p. 349.
3 G.A., O.R., Fourth Sess., Fou.rth Comm., 135th Meeting, 24 Nov. 1949, p. 247.
• G.A .,O.R., Fourth Sess., Fourth Comm., 139th Meeting, 28 Nov. 1949, p. 269.
It is to be noted that this statement is in apparent confüct with those quoted in
para. 8 above.
6 G.A.,O.R., Fourth Sess., 269th Plenary Meeting, 6 Dec. 1949, p. 532.
1 II, pp. 70-71, and passages there quoted.
Ibid.,p.70.
8 Ibid., pp. 70 and 284-285.66 SOUTH WEST AFRICA
rights over South West Africa since it held only the title of ilfanda
tory Power on behalf of the League of Nations 1".
And later in the same debate, another representative of the same State
said that "... [the] basic obligation in the :Mandate was still in exist-
ence... " 2 .
A general indication of the vicws of Membcrs of the United Nations
may also be gained from the terminology employed in early resolutions
regarding South West Africa. Thus in the years 1946 to 1948 expressions
such as "the Mandated territory of South West Africa" and "territories
now held under mandate" were not infrequcntly used 3• However, the
use of such expressions, which became Jess frequent with the years, was
entirely avoided in 1949, when South West Africa was consistently re
ferred to only as "the Territory of South West Africa" \ and when an
Advisory Opinion was requested, inter alia, on the following question:
"Does the Union of South Africa continue to have international
obligations under the Mandate for South \Vest Africa and, if so,
what are those obligations? 5 ''
The impression is consequently created that the wording employed in the
earlier resolutions did not necessarily reflect a view (or, at any rate, not a
considered and firm view) that the Mandate was still in existence, but
was probably only a loose and inaccurate use of language.
10. The above-mentioned diffcrences of opinion emphasize the difficul
ty of the question whether the dissolution of the League, and the conse
quent lapse of accountability to supervisory organs, resulted in the whole
of the Mandate ceasing to be in force. It may be pertinent to recall that
there was quite evidently for a long time no difference of opinion at all
on the point that accountability under the Mandate had lapsed. \Vhile
at 1east 25 States rnaintained quite clearly that, outside of trusteeship,
there was no accountability to the United Nations or any othcr body,
this view was, for more than two years after dissolution of the League,
not contested by any single State, although in 1947 alone 41 States took
part in United Nations debates on South West Africa 6•The difference
was therefore confined to the further question whether the Mandate as a
whole had lapsed.
On balance, and for the reasons stated in the Counter-Memorial,
Respondent submitted "... that the feature of report and accounta
bility to the League was intended to be an integral portion of the Man
date System ... " 7,and that the lapse of Respondent's obligations in
this regard-
"... has resulted in a situation which renders it impossible for a
' G.A., 0.R .. Third Sess., Part 1, Fourth Comm., 78th Meeting, 11 Xov. 1948,
p. 314.
2 Ibid.,82nd Meeting, r 7 :Nov. 1948. p. 360.
3 Vide G.A. Resolution 65 (I), 14 Dec. 1946, in U.N. Doc. A/64/Add.1, p. 123;
G.A. Resolution 141 (II),1 Nov. 1947 in U.N. Doc. A/519, pp. 47-48;G.A. Resolution
227 (III), 26 Nov. 1948, in U.N. Doc. A/810, pp. 89-91.
• Vide G.A. Resolution 337 (IV), 6 Dec. 1949, in U.N. Doc. A/1251, p. 44.
5G.A. Resolution 338 (IV), 6 Dec. 1949, in U.N. Doc. A/1251. p. 45.
6 II, pp. r40-r4r (para. 4ra and b) rea.d withpp. 68-7r. Sorne States did. however,
contend that Respondent was subject to the fesser obligation ta transnùt informa
tion in terms of Art. 73 (e) of the Charter.
7
Ibid., p. 169. REJOINDER OF SOUTH AFRIC:\
Court to presume t1mt the authors of the Mandate would have in
tended it to continue in existence in such a 'highly truncated
fonn' 1."
II. APPLICAXTs' REPLY TO REsPOXDE~n·s Co:s.TExno~
II. Applii.:ants do not deal at ail with the above contention. In fact,
their submissions only impinge thereon at one point, namely as regards
so-called "essentiality" of "international accountability" and the effect
thereof. Thus they say:
"lt is common cause that international accountability is of the
essence of the Mandate. Respondent contends that if, as it asserts,
the duty of international accountability lapsed with the dissolution
of the League, it is 'impossible for a Court to presume that the au
thors of the Mandate would have intended it to continue in exist
ence .. .'. Applicants, to the contrary. contend that international
accountability must survive so long as rights or powers over the
Territory are asserted, as the Court has twice made clear 2." (Foot
notes omitted.)
The various aspects of the above passage which call for comment,
are dealt with in what follows.
The Averment that "it is common cause that international accountabilitv
is of the essenceoi the Mandate" -
12. The above sentence is liable to create a misleading impression, in
two respects.
The fi.rst of these concerns the use of the expression "international
accountability". It will be recalled that Respondent submitted in the
Counter-Memorial, with reference to the )fandatories' obligation to re
port and account to the Council of the League, that-
"[b]y its content the obligation required the Mandatories to report
and account to a specificsupervisory body, constituted and function
ing under the provisions of a particular international convention.
It was not an obligation to submit generally to 'international super
vision' or to supervision by the 'international community' or 'the
Family of Nations', or 'the civilized nations of the world' or the
like. 1t was an obligation to report and account to a speci-(icorgan
of a specific organization of certain of the nations of the world, viz.,
the Council of the League of Nations 3." (Italics in original text.)
Applicants contest this submission ~,and, as noted above 5, they contend
that the content of the obligation involved supervision by the "organized
international community", a concept or entity either manifesting itself
in, or being represented by, successively, the League of Nations and the
United Nations.
In these circumstances, a statement to the effect that the parties are
in agreement that "internat_ional accountability" is of the essence of the
1 11,p. 170.
2 IV, pp. 523-524.
3 Il, p.119.
• Vide, e.g.,IV, p. 240.
5 Vide Cha p.III, supra.68 SOUTH WEST AFHICA
mandate, is clearly apt to be misleading. lt may well be that Applicants
intended to use the expression "international accountability" in a generic
sense, broad enough to cover both the obligations respectively contended
for by the Parties. But even on that basis, in view of the wide divergence
betwccn the Parties' submissions regarding the content of the obligation,
it does not appear to conduce to clarity of thought to lump them together
undcr one desr.:riptive appellation, and then to state that their essentiality
is a matter of common cause.
13. Secondly, apart from the difficulty regarding the expression
''international accountability'', Applicants' statement is inclincd to create
a misleading impression as regards the very crux thereof, viz., the concept
of "common cause" concerning essentiality. Even assuming that "inter
national accounta bility" is to be understood in a sense which stands
neutrally betwcen the conflicting contentions mentioned in the previous
paragraph, it still cannot be said, without qualification, that Respondent
has identified itself with Applicants' attitude about international
accountability being "of the essence" of the Mandate.
The attitude in question on Applicants' partis basic and unqualified
a "major premise" of Applicants' case, which is advanced as one whole
without any alternatives, viz., that the Mandate exists intact, i.e., includ
ing, as an integral part thereof, an obligation to account. to a super
visory body 1. On the other band, Respondent's submission on the qucs·
tion of essentiality or otherwise of the element of accountabi!ity isneither
basic nor unqualified. As has been shown above, Respondent's basic and
unqualified contention is that the element of accountability to a super
2
visory body lapsed on dissolution of the League .That contention stands
by itself, on its own merits, and is not dependent on, or qualified by, any
contention or argument raised by Respondent in regard to other issues 2•
In particular, the conclusion of lapse of accountability is advanced by
Respondent as an overriding one, standing independently and irrcspec
tively of the further question whether any other part or parts of the
Mandate did or did not survive the dissolution of the League. It follows
that the said conclusion is also aclvanced indepenclently and irrespectively
of the question whether the elemcnt of accountability is to be rega.rded as
a severable or as an inseverable (essential) part of the mandate institu·
tion. The latter question arises only in a secondary manner, following on
the premise of lapse of accountability: it provides the key to the further
question whether any other part of the i\Iandate survived the dissolution,
or whether the whole lapsed as a consequence of lapse of accountability 3.
Consequently, Respondent's contention in this respect is a twofold one,
advanced in the alternative, viz.,
(a) that acconntability to the League supervisory organs was intended
by the authors of the mandate svstem to be an essential part of the
Mandate, with the result that" the whole Mandate lapsed upon
dissolution of the League;
(b) alternative/y, and on the basis of the Court finding against the
proposition of essentiality of the accountability (in other words in
favour of se\'erability) that the Mandate continues in existence but
1 IV, p. 524.
2 Para. 1,supra, and other passages there referred to.
1 Para. 2,supra, and other passages there referred to. REJOINDER OF SOUTH AFRICA 69
without accountability on the i\fandatory's part to any supervisory
organization or body 1_
Respondent's argument therefore differs from Applicants' in expressly
recognizing the J?OSsibility of a finding of severability as opposed to
essentiality, and m basing on that possibility an alternative submission
which finds no common ground with Applicants' case, viz., of survival
of the Mandate without accountability to a supervisory body.
I4- The distinction betwcen the respective contentions of the Parties
can also be put in a different way_ In the passage cited from the Reply
in para. :n above, the "common cause" suggestion in the first sentence
paves the way for Applicants to represent the rival contentions of the
Parties as if they mutually invite the Court to make a choice between two
extreme findings only, viz-, that the :Mandate has lapsed in toto or that
it survives in toto.In truth, although Applicants' argument does involve
such an invitation, the representation is wrong of Respondent's ar($U
ment, which specifically invites consideration by the Court of a third
possible finding, lying between the extremes, viz., that the Mandate
survives in part, i.e., as regards its substantive provisions but without
procedural obligations of report and accountability to a supervisory
body_ Indeed Respondent respectfully submits that that is the only
form in which it can possibly be found that the Mandate still exists.
The conclusion resulting /rom a postulate that accountability was indeed
"of the essence of the Mandate''
I5. The next asi:,ect of the above passage (rom the Reply 2 which
requires considerat1on, is the question as to the ultimate conclusion
which would flow from a finding or postulate that accountability (either
to specific League organs or to some international body) is indeed to be
regarded as "of the essence of the :Mandate". Respondent contends that
the ultimate conclusion must be total lapse of the Mandate upon the
dissolution of the League, whereas Applicants contend for total survival.
r6. First, the concept of "essentiality", or being "of the essence", in
this context requires some consideration. Respondent assumes that
Applicants thereby mean that the accountability in question was intended
lJythe aitthors of the mandate system to be an essential element of the Man
date, in the sense that the Mandate was not to exist witlwut it.This is also
the sense in which the concept has been dealt with in the preceding
paragraphs.
Tt is hardly necessary to point out that "essentiality" in any other
sense could not in itself have a decisive bearing on the question at issue,
which concerns the effect which dissolution of the League had upon the
)fandate and/or accountability thereunder to. a supervisory organ.
In the first place, the view or contemplation of anybody other than
the authors of the mandate system could hardly be of significance
unless it should have led to some legal act which affected the situation.
So, for instance, let us assume that the Mandate could, in accordance
with the intentions of its founders, continue in existence despite the
lapse of accountability to a supervisory body: in that event a view on
1 Videsummary of Respondent's argument, particularly paragraphs (d) and (e)
thereof, in II, p. 97 (par2) and Chap_ Ill,para. T, supra.
2 Para. II, sup,-a.70 SOUTH WEST AFRICA
the part of the founders of the United Nations at the time of its estab
lishment, and/or of the remaining l\lembers of the League at the time of
its dissolution, that accountability to some international body was
essential for a proper functioning of the Mandate, could not in law bring
about a lapse of the Mandate, unless such viev.rled to an agreement to
that cffect, to which the Mandatory would have had to be a consenting
party. Nor could such a view have resulted in an obligation on the part
of the ?11andatory to account to a new supervisory body-again save by
agreement with, or with the consent of, the i\landatory. Respondent
has given full reasons showing that no such agreement was entered into
nor any such consent given 1,and Applicants do not join issue therewith
in the Reply 2•
Again, a view or contemplation on the part of the authors of the
mandate system that accountability to a supervisory body was "essen
tial" or "of the essence" in a sense other than the above, could not be
of decisive significance to the question at issue. So, for instance, if the
authors mercly considered that such accountability was a desirable
spur to diligence on the Mandatory's part in the performance of its obli
but not indispensable for the existence of the Mandate, it follows
gations,
that, upon disappearance of the supervisory organs mentioned in the
Mandate, such a contemplation could in itself bring about neither the
lapse of the Mandate nor the substitution of new supervisory organs.
17. On the basis, therefore, that "essentiality" or being "of the
essence" relates to a contemplation or intention on the part of the au
thors of the mandate svstem that the ;\landate was not to exist without
accountability to a supervisory organ, and assuming that such was in
deed their intention, what would the effect of dissolution of the Lcague be?
In ordinary logic the answer, in Respondent's submission, presents
no difficulty. The dissolution of the League brought to an end the exist
ence of the only supervisory bodies mentioned in the l\Iandate or the
Covenant. Hence accountability to supervisory bodies would terminate,
unless there were some provision in law for the substitution of a new
supervisory body or bodies. And such termination of accountabi!ity
would, in accordance with the intention of the authors of the mandate
svstem, mean the end of the Mandate.
-Consequently, on the above premises, the question of survival or
otherwise of the Mandate would depend on whether or not there was
any provision in law for substitution of supervisory bodies. Respondent
has already demonstrated, conclusively in its submission, that there was
no such pro\'ision for substitution 3, and that the only proposition by
which Applicants attempt to show the contrary, viz., the "organized
international community" theory, is without substance 3. lndeed, by
the mere fact of advancing this theory, Applicants by implication
concede that provision for a substitution of supervisory authority was
a requisite for the existence of accountability after the dissolution of
the League. The absence of provision for substitution therefore mcans
the end of accountability as at dissolution of the League, and, on the
abovc prcmises, the simultaneous end of the Mandate.
18. The conclusion just stated rests, as has been indicated, on ordi-
l Il, pp. 124-163.
2 Chap. tri, para. 46supra.
l Cha p. I Isupra. REJOIXDER OF SOUTH AFRICA JI
nary considerations of logic. Given the postulates that the supervisorr,
organs lapsed without successors, and that "international accountability '
was, in the contemplation of its founders, an essential element in the
mandate system, the conclusion is logically inescapable that the Man
date as a whole has lapsed.
This proposition is pertinently supported by a passage from the dis
senting opinion of Judge i\Iorelli in the Barcelona Traction case . The
question at issue in that case was whether a compromissory clause in a
treaty of 1927 bctween Belgium and Spain was still in force. In the
course of the proceedings, an argument was raised regarding the effect
of the alleged inscverabüity of the compromissory clause. The Court did
not find it nccessary for the purposes of its Judgment to express an
opinion on the merits of this argument 2• Judge l\1orelli, however, dealt
therewith. After finding that the compromissory clause in the treaty
under consideration had Iapsed on the dissolution of the Permanent
Court, the learned Judge stated:
"This result cannot in my ,·iew be set aside by arguing, as does
the Belgian Government, the inseparability of the provisions of the
1927 Treaty. lt is ditficult to fmd any reason why this alleged insepa
rability shou!d have the etfect of keeping Article I7 (4) [i.e. the com
promissory clause J in force, rather than the contrary e[fect of entailing
the lapse of the entire treaty.
In my opinion there can be no doubt that Article 17 (4) lapsed,
for lack of object, as a result of the dissolution of the Permanent
Court. ... The fate of the other provisions of the 1927 Treaty is of
no interest. But if it is desired also to consider the question of the
preservation in force of the other provisions of that Treaty, what
consequence must be drawn, for the solution of that problem, from
the assertion that the Treaty constitutes an inseparable whole?
If it is considered, as does the Belgian Government, that 'resort to
adjudication is an essential part of the cconomy of the treaty' that
'the various methods of settlement were carefully combined, so
that to remove those which concern the Court amounts to dis
mantling the whole system' and that Article 17 (4) \vas an essential
condition for the consent of the parties to the treaty as a whole'
the inevitable result, assuming the impossibility, thus atfirmed, of
separability of the provisions of the Hispano-Belgian Treaty, would
simply be th..atthe entire treaty has lapsed3." (Italics added.)
19. For the reasons aforestated, Respondent submits that the "essen
tiality" of "international accountability" resulted in the lapse of the
Manda~e as a whole, and not in its amendment to provide for fresh
superv1sory organs.
The contention that "international accountability must sitrvive so long as
rights or powers over the Territory are asserted"
20. There remains for consideration the contention advanced bv
Applicants in the passage from the Reply quoted in paragraph II above,
1
Barcelona Traction, Light and Power Company Limited, Preliminary Objections,
Jwigment, I.C.]. Reportr964, p. 6.
2 Ibid.,p. 37.
' Ibid.,pp. 94-95.72 SOUTH WEST AFRICA
viz., that international accountability must survive so long as
rights or powers over the Territory are asserted, as the Court has twice
made clear". This contention appears to correspond to a suggestion
1
made in a negative form earlier in the Reply , viz., that there cannot be
"... any basis for [Respondent's] disclaimer of international accounta
bility white at the same time maintaining rights of administration and
possession over the Terri tory". ln the next succeeding paragraphs Re
spondent deals with the apparent meaning of the contention, with the
suggestion that it bas twice received the blessing of the Court, and with
its merits.
21. As regards the apparent meaning of the contention. Respondent
is confronted with the difficulty that Applicants nowhere develop it,
or explain exactly what they mean by it, or indicate on what inter
pretation or principle of law or logic, it is sought to be based. Applicants
do not even say whether the contention is advanced independently of
their "organized international community" theory regarding succession
in respect of supervisory bodies, or whether it merely states a result
arrived at via the application of that theory.
That Applicants may well have intended the second of these alter
natives, flows, inter alia,from the very fact that whereas extensive dis
cussion is offered in an attempt to support the "organized international
community" theory, there is in regard to the contention under con
sideration no presentation at ail of that kind, as one would have ex
pected if it were meant to be advanced as an independent, alternative
argument, standing by itself and on its own merits.
lt will be recalled that Applicants base their "organized international
community" theory, inter alia, on the premise that "international ac
countability" was intended to be an essential element of the Mandate 2•
If, as further contended by Applicants, Respondent was ab initio obliged
to account to "the organiz.ed international comrnunity" or its appropria te
organ, and if the United Nations for this purpose became the "organized
international community" or its appropriate organ, then there would,
of course, at the dissolution of the League, have becn no lapse of the
element of accountability, and therefore no consequcntial problem of
lapse of the Mandate as a whole. ln other words, the :Mandate would. on
the hypothesis stated, have continued intact 3, with accountability to
the United Nations as an integral element thereof. Consequently, still
on the hypothesis stated, it would be perfectly correct to state the con
clusion arrived at in terms of the contention under discussion, viz.,
"that international accountability must survive so long as rights or
powers over the Territory are asserted", and that there cannot be a
basis for "disclaimer" on Respondent's part "of international account
ability while at the same time maintaining rights of administration and
possession over the Territory". And on this premisc the words "as the
Court has twice made clear" would also be understandable, as referring
merely to a proposition which has indeed twice been stated and which
Respondent has never disputed, viz., that "[t]o retain the rights derived
1 IV,pp. 243-244.
2 Ibid .pp.239-240.
' I.e., leaving out of account, for present purposes, indepenquestions regard
ing survival or otherwise of the compromissory clause. REJOI~DER OF SOUTH AFRICA 73
from the i\Iandate and to deny the obligations thereunder could not be
ustifiecl" 1.
At the same timc, howcver, the contention would of course, on this
understanding of its meaning, rest entirely on the soundness or otherwise
of the "organized international community" theory regarding succession
or substitution o~ supervisory organs. C<:>nsequentlyit would, in reply
thereto, be suffic1ent to say that the sa1d theorv has already, in Re
spondent's submission, been shown to be entirely without substance 2,
and also that it has never received endorsement or approval from the
Court or from any member thereof 3.
22. Respondent proceeds, however, to consider Applicants' above
contention on the supposition that it is advanced in<lependently of the
"organized international community" theory, or any other theory of
succession, as an alternative argument for coming to the conclusion that
the :Mandate still exists together with an obligation of "international
accountability" as an întegral part thereof.
Seen in this light, the contention must apparently be taken to convey
the following: from the premise that "international accountability" was
intended by the authors of the mandate system to be an essential, in
dispensable part of the i\Iandate, there follows the conclusion that as long
as Respondent "asserts" or "maintains" rights or powers of administra
tion and possession over the Territory of South West Africa, it must be
under an obligation of "international accountability".
It will immediatcly be apparent that the contention, thus under
stood, suffers from two fatal defects, viz.,
(a) the conclusion is a non sequitur: it is not substantiated by the
premise, and would only be valid on introduction of an additional
premise, viz., that the l\fandate is still in existence; and
(b) no solution is offered to the problem of the supervisory body to
which the obligation of accountability would relate after dis
appearance of the only supervisory bodies mentioned in the for
mulation of the obligation in the mandate documents.
As will be shown in the succeeding paragraphs, these defects relate to
the basic substance of the contention, and not to the mere fortuitous
circumstance of the words in which it has been expressed by Applicants.
First, however, Respondent has to point out also that neither the
Court, nor any member thereof, has ever expressed a view or finding
which endorses a proposition as now under discussion. The Court in 1950
treated the obligation of accountability as being severable from other
aspects of the Mandate, and based its judgment regarding survival of
accountability on a finding which in effect rested on a tacit agreement
considered to have been entered into during 1945-1946 providing for
substitution of supervisory organs \ And in 1962 the Court left open
5
the question whether the obligation of accountability had lapsed •
Applicants have made no attcmpt to answer Respondent's analyses in
1 International Status of South West A/Yica, Advisory Opinion, l.C.J. Reports I950,
p. 1·!8 atp. 133 and South West Africa, PnliminaYy Objeciions, Judgment, l.C.J.
Reports r962, p.319 at p. 333,
2 Chap. III, supra.
3 Il, p.122 (para. 14).
• Ibid.,pp. 141-146.
~ Ibid., pp. 156-161.74 SOUTH WEST .-\FRICA
the Counter-;'ilemorial of the z950 Opinion and z962 Judgment in these
respects.
23. To retum, then, to the merits of Applicants' contention 1, and
the above-mentioned defects in respect thereof, Respondent submits
that a cardinal consideration of logic is ignored therein. This consider
ation is that, as soon as the premise is accepted or assumed that account
ability is essential for the existence of the ~Iandate, then an enquiry
whether the }landate could and did survive the dissolution of the League
cannot be divorced from an enquiry whether accountability, as prescribed
in the Mandate, could and did survive such dissolution: the two aspects
of the enquiry then form one integral whole, and neither aspect eau be
answered separately from the other.
So, for instance, it would be quite impermissihle to enquire firstwhether
parts of the Mandate other than accountability, e.g., the sacred trust
provisions of Articles 2 to 5, were capable of surviving the dissolution
of the League, and, upon reaching an affirmative answer, to conclude
secondly that the Mandate must therefore still be in existence, and then
to add, thirdly, that inasmuch as accountability is an essential or in
severable part of the Mandate, therefore accountability must also still
exist. Such mcthod of argument would involve the obvions error of a
change of premise en route. The conclusion reached at the second stage
thereof could only be justified on a premise of severability of the sacred
trust provisions from the element of accountability, whereas the con
clusion at the third stage would require and use as basis the very op
posite premise of essentiality, i.e., of inseverability of accountability
from the other provisions.
Yet this would seem to be the very defect implicit in Applicants' con
tention, understood in the sense as now under consideration, resulting
in the non sequitur mentioned above 2• It is quite obvious that one can
not say that administration of a certain territory must be subject to ac
countability merely because accountability is an essential element of a
mandate. The statement would only make sense upon adding or pre
supposing that the mandate which requires the accountability, appties
to the territory and its administration. ln the present context this means
a presupposition that the Mandate for South West Africa still exists. It
therefore seems that this presupposition must be underlying Applicants'
said contention, as a major premise. The line of reasoning is apparently
that the existence of the Mandate is not open to question 3,and that given
the essentiality of accountability, the obJigation of accountability must
therefore also be in existence. The cardinal error lies in the combination
of the two premises that the Mandate exists and that accountability is
essential toits existence. The only basis upon which it can possibly be said
that the existence of the Mandate is not open t-question, is that of accepting
that its sacred trnst provisions can stand by themselves, without account
ability. As soon as the frremise is i-ntrodttced that accoimtability was in
tended to be essential for the existence of the Mandate, the,i the question
whetlier the 1l1andate still exists must depend, inter alia, 011 the question
whether its provisions regarding accountability are still capable of perform-
1 I.e .• if to be understoin the sense indicated in para.22. supra.
2 Xumbered (a) in para. 22.supra.
3 Applicants never advance any argument in support of the propositionthat the
Mandate stîll existsthey merely rest on the Court·s dccision in that regard. REJOIXDER OF SOUTH AFRICA 75
ance: if they are, the Mandate1would still exist, and if they are not, the
Mandate would have lapsed .
For these reasons, Applicants' contention under consideration could be
of no value for determining whether the Mandate and accountability
under the i\Iandate still exist, unless it should face up to the question
whether the obligation of accountability, as prescribed in the .l\Iandate,
is still capable of performance. For rcasons rcpeatedly stated before,
this reduccs itself to the furthcr question whethcr a substitution of a new
supervisory body or bodies has been proviclcd for by a process legally
hincling on Rcspondent.
24- Applicants' contention undcr considcration does not cxplicitly
address itself to a question of substitution of supcrvisory organs. It cloes,
however, seek to attach to the fact that Rcspondent "asserts" or "main
tains" rights or powers of administration and possession ovcr South
West Africa the legal consequence that "international accountability
must survive". Itmaybe that Applicants intend to signify that Responcl
ent bas by such "assertion" or "maintenance" of rights or powers
voluntarily committed îtself to an obligation to account to a new super
visory body, in substitution for those that have disappeared-either by
way of actual consent to such an obligation, or by way of conduct which
operates in law as an estoppel precluding denial by Respondent of con
sent to such an obligation. It is therefore necessary to consider whether
such a proposition could be sound. In Respondent's submission the
answer must clear!y be in the negative-for a number of reasons, in fact
and in law, of which only some of the most basic arc dcalt with in the
next succeeding paragraphs.
25. Whether Respondent's "assertion" or "maintenance" of rights
or powers involved an actual consent on its part to a substitution of
supervisory organs, is a question of fact. In the Counter-l\1emorial
Respondent fully considered and analysed the evcnts of the years 1945-
1946 and thereafter, and demonstrated, it is submittcd conclusively, that
thcy negative the existence of any actual consent to such a substitution 2•
Respondent bas also repeatedlv pointed out 3 that Applicants have in
the Reply made no attempt to controvert or even to deal systematically
with the facts and arguments advanccd by Respondent in this regard.
Only two contentions which can be said to be exprcssly contrary-and
then onlyto a limited extent-are advanced by Applicants, viz., regarding
an alleged "clear intention of al! concerned" at the last session of the
League Assembly 4, and regarding an alleged consistent maintenance by
the United ~ations, since its inception, of "its right and duty to cxercise
supen·isory authoritv over the i\Iandate" 5: and both these have been
shown to be wholly unsubstantiated 6.The contention regarding "asser
tion" or "maintenance" of "rights", however, in its possible sense as now
under consideration, necessitates a reversion to the same factual terrain,
in which a measure of repetition can unfortunately not be avoided. In
addition to the question of actual consent, the enquiry concerns the
1 Vide para. 17,supra.
; II, pp. 124-1G3.
3 E.g., in Chap. !Ir,paras. 4, 46, 48 and 51supra.
• As quoted in Chap. !TI, para. r2,supra,
' Ibid., para. 51.
• l/Jid., paras. -13-51. SOUTH WEST AFRICA
possible application of the doctrine of preclusion or estoppel-to the
principles of which regard is first to be had.
26. The nature of the doctrine of estoppel has been descrihed as
follows:
"Whatever terrn or terrns be employed to designate this principle
such as it has been applied in the international sphere, its substance
is always the same: inconsistency between daims or allegations put
forward by a State, and its previous conduct in connection there
with, is not admissible (allegans wntraria non audiendus est). Its
purpose is always the same: a State must not be permitted to benefit
by its own inconsistency to the prejudice of another State (nemo
potest mutare consilium suum in alterius injuriam). A fortiori, the
State must not be allowed to benefit bv its inconsistencv when it is
through its own wrong or illegal act that the other party has been
deprived of its right or prevented from exercising it. (Nullus
commodum capere de sua injuria propria.) Finally, the legal effect of
the principle is always the same: the party which by its recognition,
its representation, its declaration, its conduct or its silence has
maintained an attitude manifestly contrary to the right it is claiming
before an international tribunal is precluded from claiming that
right (vent'.recontra factum proprium non valet) 1."
The elements of estoppel or preclusion are consequently clear: in order
to invoke it, a party must show-
(a) an attitude previously adopted by the party sought to be precluded;
(b) the bringing about, as a result of such attitude, of "a change in
the relative positions of the parties, worsening that of the one,
or improving that of the other, or both" 2;
and
3
(c) a present daim which is "manifestly contrary" to the attitude
previously adopted.
It will be apparent that the starting point and basis of any application
of this doctrine is the attitude adopted by a party, which such party may
be precluded from changing subsequently. The manner in which such an
attitude was expressed, is not important. In the words of Judge Alfaro,
"... [it] may take the form of an express written agreement, decla
ration, representation or recognition, or else that of a conduct which
implies consent to or agreement with a determined factual or
juridical situation •".
In consonance with the terminology of English law, such an expression
of attitude is often referred to as a "representation", although the
accuracy of defining estoppel as necessarily involving a representation
has been doubted 5_
27. Whatever term is employed, and in whatever manner a party's
prior attitude has been manifested, it is patent that such manifestation
1Temple of P;,eah Vikea;,. llferits, ]uàgmeI.C.j. Repo;,ts r962. p. 6 at p. 40 pcr
Judge Alfarn.
2 Ibid., ap. 63 per Sir Gerald Fitzmaurice. (ltalicdeleted.)
3
Vide the above quotation from the opinion of Judge Alfaro.
5• Ibid., p. 40.
Ibid., pp. 63-64 per Sir Gerald Fitzmaurice. REJOINDER OF SOUTH AFRICA 77
must be unambiguous in the respect in which the party is sought to be
precluded from denying it. This requirement follows from the very nature
of the doctrine-it is impossible to establish an inconsistency between
two attitudes if either or both of them are ambiguous in the respect in
question, and consequcntly capable of being reconciled. In addition,
however, the requirement that, for the application of estoppel, an
attitude must be a clear and unambiguous one, flows from considerations
of fairness and equity. A plea of estoppel is, in the words of Sir Gerald
Fitzmaurice,
"... essentially a means of excluding a denial that might be correct
irrespective of its correctness. It prevents the assertion of what
might in fact be true 1".
And the same learned J udge said with reference to circumstances in
which a party was alleged to be precluded from denying the existence of a
binding undertaking or the acceptance of an obligation thereunder:
"The real field of operation, therefore, of the rule of preclusion or
estoppel, stricto sensu, in the present context, is where it is possible
that the party concerncd did not give the undertaking or accept the
obligation in question (or there is room for doubt whether it did), but
where that party's ... conduct has been such, and has had such
consequences, that it cannot be allowed to deny the existence of an
undertaking, or that it is bound 1."
Clearly a court would not hold that a party is bound to an undertaking
to which it did not in fact consent, or may possibly not have consented,
except on the strength of the most unequivocal and unambiguous conduct
or representations on its part. In the words of Sir Percy Spender,
"... since the principle [of preclusion], when it is applicable to any
given set of facts, substitutes relative truth for the judicial search
for the truth, it should be applied with caution 2".
It has consequently often been stated that the prior representation or
attitude to which a party may be bound, must be a clear and unambiguous
one. Thus Sir Percy Spender said that the principlc of preclusion~
". . . operates to prevent a State contesting before the Court a
situation contrary to a clearand unequivocal representation previously
made by it to another State ... ". (Italics added.)
And another authority stated that, as an essential of estoppel, "the
statement of fact must be clear and unambiguous" 3•
Where the prior representation or manifestation of attitude is not
contained in any document or statement, but is sought to be inferred
from "conduct which implies consent to or agreement with a determined
factual or juridical situation''\ regard must be had also to another
factor, namely the basic considerations of logic which require that in
reasoning by inference, the conclusion sought to be inferred must be
consistent with ail the relevant proved facts, and must be a necessary
1 Temple of Preah Vihear, Merits, Judgmen/, I.C.J. Reports r962, p.63.
2 Ibid.,p. r43.
3 Bowett, D. \\'., "Estoppel before International Tribunats and its Relation to
Acquiescence". B. Y.H.l.L., Vol. XXXIII (1957),pp. 17G-202 at pp. 188-190 and
202.
• Vide above quotation from Opinion by Judge Alfaro. SOUTH WEST .-\FRIC..\
1
inference in the sense that all other reasonable inferences are excluded •
"If there are a number of reasonable inferences which may be
drawn, including one of assent, then the hypothetical reasonable
man is not entitled to select the inference of assent and to disregard
2
the others ."
28. Applying the above principles, R.espondent will now examine
whcther any undertaking, representation or attitude regarding the
continuation of "international accountabilitv" can be inferred from its
"assertion" or "maintenance" of rights or powers of achninistration and
possession over the Territory. It is to be borne in mind that this enquiry
proceeds on the assumption that, but for such "assertion" or "main
tenance", "international accountability" would have lapsed on disso
lution of the Lcague 3•
At the outset three points call for comment. The first is that the enquîry
cannot be confined to a consideration only of the facts, taken in vactw,
of assertion or maintenance of rights or powers of administration and
possession. The administration and possession of a territory are by
themselves essentially neutral facts with reference to the question
whether "international accountability" in respect thereof is undertaken,
acknowledgedorrepresented, neither advancingnor militating against any
inference relative to that question. Only upon considering ail circum
stances surrounding and attendant upon the administration and pos
session concerned, could the possibility arise of an inference either in
favour ofor against an undertaking, acknowledgment or representation of
such accountability.
Secondly, it will be noted that in their contention under discussion,
Applicants refer only to the vague, abstract concept of "international
accountability" rather than to any specific supervisory authority. This,
in Respondent's submission, is not merely fortuitous. Administration and
possession of a territory are by themselves even more patcntly and
obviously unrelated to any specific supcrvisory authority than to a vague
idca of "international accountability". And yet, of course, Applicants
cannot ultimately evade the question of a specific supervisory authority.
Indeed, in their conclusion as set forth, inter alia, in their Submissions
2, 7 and 8 4, Applicants do not allegc the existence of an obligation of
"international acconntability" iu vac110, but contend that Respondent is
now obliged to acconnt to the Gcneral Assembly of the United Nations.
The facts and circumstances surrounding and attendant upon continued
administration and possession are therefore to be considered specifically
with a view towards determining whether they give rise to any inference
regarding accountability tothis particular body.
Thirdly, Applicants' said submissions also concern accountability
under a mandate in force-which is another point left vague by the
contention under consideration. An alternative contention, which has
been raised by some States in international politics, but is not relicd
1 Il,p.146.
2 Per Judge-President Greenberg, regarding this aspect of application of the
doctrineof estoppel. in the Transvaal Provincial Division of the Supreme Court oi
South Africa: Van Ryn Wine and Spirit Co. v.Chandos Bar, 1928 T.P.D. p.417 at
pp.34Vide para. 22.supra.
4
I,pp. 197 and 19S. IŒJOIXDER OF SOUTH .-\FRIC.-\ 79
upon by Applicants in the present proceedings, is that Rcspondent is
subject to "international accountability" by reason of an obligation to
conclude a trusteeship agreement. Such a contention is really irrelevant
to the present proceedings. Apart from the fact that the Court in 1950
rejected the contention of an obligation to enter into a trusteeship
agreement, and that Applicants do not contest the correctness of the
Opinion in that respect, there is the fondamental consideration tlw.t the
present case is concernecl only with interpretation and application of
the Mandate, and more particularly, in its aspects under discussion, with
Applicants' submissions that the Mandate is in force and that Rcspondent
is by virtue of the provisions thereof under an obligation of accountability
to the United Nations. However, it mav be useful for the sake of com
pleteness to have regard in the succeedÎng consideration of the facts to
ail aspects of the present enquiry, and to examine whether Respondent's
continued "assertion" or "maintenance" of rights or pov,rersof adminis
tration and possession can give rise to any inference of consent, actual or
by estoppel, to "international accountability", either in the sense
contended for by Applicants in their above-mentioned submissions. or in
the sense of an undertaking to enter into a trusteeship agreement.
29. The relevant aspects of Respondent's conduct in the respect under
consideration are all undisputed facts, bcing for the most part stated and
fully substantiated by Respondent in the Counter-1\lemorial without
refutation in the Reply, and in some instances stated by Applicants
1
themselves in the Memorials .No more than a verv brief summarv of the
most important fcatures will consequently be· presented herein: Thcse
features are as follows:
(a) At the San Francisco Conference in :'.'lfay1945, as well as during
the proceedings of the Preparatory Commission in December 1945,
and at the First Part of the First Session of the Gcneral Assembly
in January-February 1946, Respondent stated clearly and explicitly
that it was reserYing its position in regard to South West Africa, and
did not wish to be undcrstood as agreeing to any commitmcnt to the
United Nations in that regard, its intention being to claim, on an
appropriate later occasion, that the :\Iandate should be terminated
and the Terri tory incorporated as part of South Africa 2.
(b) At the final session of the League Assembly in April 1946, Respon
dent announced its intention to seek international recognition
for the incorporation of South West Africa. As far as its adminis
tration pending such recognition was concerned, Respondent
indicated clearly tha t due to "the disappearance of those organs of
the League concerned with the supervision of Mandates", there
would be no accounting to a supervisory authority in respect of
such administration 3•
(c) Upon rejectïon by the United Nations of the proposai regarding
incorporation, Respondent on several occasions during 1946 and
1947 announced its intention of continuing to administer the
Territory in the spirit of the principles laid clown in the i\Iandate <1_
In these statements Responclent made it clear that it was not
1 Fide also para.25, supra.
2 II, pp. 33-35 (paras3 r and 32) and 40-42.
3 Ibid.,pp. 46-48 and 136.
• Ibid., pp. 54-60.80 SOUTH WEST AFRICA
thereby consenting to any supervision by the United Nations, or
to any obligation to conclude a trusteeship agreement. Respondent
did express an intention to transmit voluntarily, for the information
of the United Nations, statistical and other information "in accord
ance with", or "on the basis of", or "of the same type ... as is
required for N1n-Self-Governing Territories under", Article 73 (e) of
the Charter . However, this intention was cxpressly qualified to a
two-fold effect, viz., firstly that the information "would not be consi
dered by the Trusteeship Council and would not be dealt with as if a
trusteeship agreement had in fact heen concluded", and secondly
that it would be rendered "on the basis that the United Nations has
no supervisory jurisdiction", or no "2ight of control or supervision'',
with regard to South West Africa •
\Vhen the qualifications wcrc not observed by the organs of
the United Nations, the transmission of information was dis
continued 3•
(d) As from November 1948, Respondent repeatedly and consistently
denied that its continued administration of the Territorv "in the
spirit of the ).fandate" involved any undertaking or Ôbligation
to submit to United Nations supervision, or to enter into a trustee
ship agreement\
The above circumstances are, it is submitted, decisive in themselves. 5
Consent, actual or by estoppel, to an obligation of "accountability"
towards the United Nations, can be cstablishcd only by showing, as a
matter of inference from the circumstances, a clear and unequivocal
undertaking, representation or attitude to that effect on Respondent's
part. An examination of the circumstances, however, demonstrates the
very contrary, viz., that Respondent's attitude was cxpressed clearly and
unequivocally to the opposite effect, i.e., to the effect that its continued
administration involved no undertaking or obligation of" accountability".
ln the result it is strictly unnecessary to go any further, and, for instance,
have regard to the attitudes adopted by other States, which might other
wisehave been relevant to cast light on a lcss explicit attitude on Respond
ent's part, or to show how Respondent's attitude was in fact interpreted
by others. However, for the sake of complctcness, brief attention wi!I
be given to this aspect in the next paragraph.
30. The foHowing circumstances are, in Respondent's submission,
relevant as regards the attitude adopted by other States in the respect
in question:
(a) It is not disputed that the Charter imposes no obligation on Respond
ent to enter into a trusteeship agreement. It is also common cause
that no express provision was made therein for the United Nations
or its organs to be substitutcd for the Leaguc organs in respect of
supervision of mandatory administration. On the contrary, it will
be rccalJed that proposais regarding the transfer of such fonctions
6
were, on two occasions, not proceedcd with or rejected •
1
Il, pp. 54-60.
3 Ibid., particularlat pp. 57, 58 and 59.
lbid., pp. 58-62.
5 Ibid., pp. 62 and 72-95.
6 ln either of the two respectsmentioncd in para.28, supYa.
Ir,pp. 40, 43 (para.35g). 47-50, 131-132, 134-135 and 146-147 (paras. 49-50). REJOINDER OF SOUTH AFRICA SI
(b) At the dissolution of the League, other l\1andatories also indicated
that in their view the mandate obligation of accountability would
1
no longer be capable of performance •
(c) Over the next three vears at least 24 members of the United Nations
publicly associated -themselves with this view, acknowledging in
particular, either expressly or by clear implication, that in the
absence of a trusteeship agreement the United Nations would have
no supervisory powers in respect of a mandated territory 2.
(d) For more than two years after the dissolution of the League, i.e.,
until near the end of 1948, not a single State voiced any contra
diction to the views stated in (b) and (c), although during 1947
alone 41 States took part in debates on South West Africa at the
United Nations 3_
(e) Sorne States contended that Respondent was under an obligation
to enter into a trusteeship agreement. This was, however, even
before the Court's ruling in 1950, a highly contentious issue 4, and
the States alleging such an obligation did not base it on any consent
(save as embodied in the Charter) or representation on Respondent's
part.
The abovc circumstances render it beyond doubt that Respondent's
continued administration of the Territory was not understood as in
volving any consent to, or recognition of, an obligation of accountability
towards the United Nations. This by itself, of course, shows the absence
of the second essential element of estoppel referred to above 5, viz., that
the attitude or representation in question must have brought about a
change in the relative positions of the parties. However, for present
purposes Respondent is more concemed to point out that the views
expressed by othcr States also confirm that in fact no attitude was
adopted or representation made by Respondent which could give rise
to the estoppel now under discussion. Had the circumstances been
different, the attitude of other States might possibly have provided a
setting in which an act or attitude on Respondent's part, apparently
neutral or ambiguous in itself, could assume special significance. Thus,
for instance, if Respondent had without express reservation continued
its administration of the Territorv in the face of universal insistence that
such administration would be taken as consent to an obligation of
accountability to the United Nations, a serious question as to a possible
estoppel might have arisen. Such a situation does not, however. obtain
here, not only by reason of the above-mentioned explicit statements by
Respondent regarding the basis upon which its administration of the
Territory was continued, but also because there was no universal in
sistence as postulated in the above example-on the contrary, the
general consensus was to the opposite effect.
31. For the reasons set out above, Respondent submits that no
inference can be drawn from its "assertion" or "maintenance" of rights
1 II, pp. 136-137.
2 Vide summary. with names of the States concemed, in Il, p141 (para .. pb)
and for greaterdetailvide alsopp. 65-71 and 138-140.
3 Vide summary II,p. 140 (para. 4ra) read with pp. 65 (para. 57a), 70 {para. 60)
and 139,
• Ibid., p. 65, footnot1
5 Vide para.26, supra.82 SOUTH WEST AFRIC:\
or powers of administration that it has consented, or is to be precluded
from dcnying consent, to an obligation of accountability towards the
United Nations, either in the sense contended for by Applicants in their
Submissions 2, 7 and 8 1, or in the scnsc of an obligation to enter into a
trustceship agreement.
Therc then remain for considcration certain views to the cffcct that,
even in the absence of consent on Respondcnt's part, real or by estoppel,
Rcspondent can have no right or title to the Territory without interna
tional accountability. This matter is dealt with in the succeeding para
graphs.
32. It will be recalled 2 that some States at the United Nations ex
presscd the view that whether or not Respondent isunder a legal obligation
to enter into a trusteeship agreement, Respondent bas no practical choice
in the matter if it wishes to maintain rights of administration and pos
session in respect of the Territory. Their argument was to the effect,
firstly, that the Mandate had lapsed, secondly, that independently of the
Illandate Rcspondent could have no right or titlc to administer the Ter
ritory, exccpt, thirdly, that Respondent could and should put it under.
trusteeship. It will be quite evident that such a line of argument docs
not fall within cithcr the permissible or the actual scope of Applicants'
submissions in the present case. As regards permissibility, the bounds of
"the interpretation or the application of the provisions of the i\Iandate" l
may not be exceeded. And as regards Applicants' actual case, the first
step, and essential premise, of the abovc line of argument is that the
Mandate has lapsed, which is the direct opposite of Applicants' first
and basic submission. It is therefore manifcst that this Iine of argument,
and particularly the contentious second step therein, viz., that Respond
ent can have no right or title to administer and possess the Territory
indcpendently of mandate or trusteeship, is neither legally nor practically
rele,·ant to the present case.
33. By rcason of what is stated in the previous paragraph, Respond
ent in the Counter-Memorial made but brief refcrence to the point
conccrned, and stated the obvious fact that it docs not "fall to be con
sidered for the purposes of the present case" 4.
Applicants' reaction in the Reply is to say that Respondent has, in
so doing, been "curt" towards the Court 5 ;and the manner in which
they dcal with the matter would seem to snggest that Respondent has
also been evasive 2.They proceed to state:
"Applicants respectfully submit that ... there is no basis wbat
ever, other than the ~landate itself, for the continued exercise by
Respondent of rights of administration, or of any other right, title
or intcrest in or to the Territory 5."
Respondent, while emphatically rcjecting this submission, fails to
see what bearing it can have upon, or how it can fit into, Applicants'
case as presentcd to the Court in their formai submissions. If this sub
mission were to be a forma! one, in terms of which the Court is being
askcd to a<ljudgc and declare, the Court would unquestionably have to
1 Vide para. 28, rnpra.
2 Vide II, Counter-Memorial, Book II, Annex A.
3Art. 7 of the Mandate for German South-West Africa.
4 II,p. 174,
3 IV, p. 244. REJOIXDER OF SOUTH AFRIGA
decline jurisdiction to do so. And how the submission can even indirectly
be of assistance in the decision of the case that actuallv is before the
Court, viz., the formai submissions that the i\Iandate exisi:s and contains
an obligation of accountability, is unintelligible. The questions pertain
ing to the submissions before the Court are wholly different from those
that would have to be gone into in order to decide whether, if the Man
date does not exist, Respondent has a legally valid daim to title: and
whatever answer may be reached in the latter respect, whether positive
or negative, cannot assist towards fmding the answers in regard to the
former.
34. In painting out the above, Respondcnt does not intend, and does
not conceive itself, to be either curt or disrespectful towards the Court,
or evasive of the merits of the questions raised by Applicants in the
above-quoted submission.
As far as the Court is concemed, Applicants speak of a "curt dismissal
of questions to which the Court has attached solcmn and decisive
weight" 1.They do so with reference to a quoted passage in the 1950
Opinion, in which the Court said:
"The authoritv which the Union Government exercises over the
Territory is baséd on the Mandate. If the Mandate lapsed, as the
Union Govemment contends, the latter's authority would equally
have lapsed. To retain the rights derived from the l\landate and to
deny the obligations thereunder could not be justified 2."
Respondent has never understood this passage to signify more than that
if the :.\Iandate has lapsed, Respondent cannot rely on the Mandate for
authority to administer the Territory while denying the mandate obli
gations. Thus understood, the proposition stated by the Court bas never
been contested by Rcspondent, least of ail in the portion of the Counter
~Iemorial under cons1deration. Respondent does not understand the
passage to signify that the Court gave consideration to the question
whether, if the Mandate had lapsed, Respondent could have any valid
daim to a title to administer and possess South \Vest Africa, and that it
came to the conclusion that there could be no such valid daim. If this
were what the Court had in mind, one would have expected some reason
ing in support of such a conclusion: and it would be very difficult to
understand what "solemn and decisive weight" the Court conld have
attached to such a conclusion in support of the findings actually arrived
at and recorded in the dispositi,·e of its Opinion.
35. As far as suggested evasion of the merits of the question is con
cerned, Respondent has, on the contrary, never understood how anyone
can, without e\·cn any reference to relevant facts, surnmarily dismiss the
possibility of a valid daim to title on its part on the basis that the Man
date has lapsed. Respondent conquercd the Territory of South West
Africa by force of arms during the First \Vorld \Var, as early as July
1915, and thercupon kept it in occupation, and ei-erciscd powers of ad
ministration and possession in respect thereof. for several years before
even any suggestion was m~de that the Territory was to be placed under
' IV, p.244.
1 InteniationalSlutus o/ Soulh West AfYica. AdvisOpinion, I.C.J. Reprrrts .r950.
p. I'.?atp. 133 quoted in IV, p. 243. SOUTH WEST AFRICA
Mandate 1•At the Peace Conference Respondent eventually agreed, by
way of a compromjse between confücting views and interests, to accept
a C Mandate in respect of the Territory in lieu of Respondent's claim to an
unqualified title of annexation or incorporation 2•One of the elements of
the compromise was indeed that Respondent "would have to be appoin
ted the ;Iandatory" 3• Respondent has ever since remained in peaceful
and undisturbed possession of the Territory, and has like\\;Se uninter
ruptedly govemed and administered the Territory, also after dissolution
of the League in 1946, which is the time at which it is for present pur
poses to be assumed that the Mandate lapsed. In the course of this ad
ministration of the Territory "as an integral portion of ... South Africa"
-as the Mandate envisaged and prescribed-there has in fact resulted
a considerable measure of administrative integration of the Terri tory into
Respondent's system of government, as well as of dependency of the
Territory's fortunes, economic and otherwise, upon Rcspondent's re
sources.
Having regard, inter alia, to these facts, and given further the postu
lates that the Mandate lapsed on dissolution of the League-i.e., not
through fault on Respondent's part but as a result of something done by
the general consent of the interested parties-and that no obligation was
imposed upon Respondent to place the Territory under trusteeship, it
can hardly be said to be a foregone conclusion that Respondent can
have no valid claim to a title to continue to administer and possess the
Territory. In view of the fact that the Court is not called upon, and has
no jurisdiction, to decide such a question in these proceedings, Respond
ent refrains from submitting a detailed exposition of fact and a svste
matic legal argument relative thereto; but by the same token Respond
ent's action in doing so involves neither disrespect for the Court nor
any desire to shirk or evade questions as to its title.
III. CONCLUSION
36. For the reasons aforestated, Respondent's contentions are, firstly,
that on balance supervision by organs of the League was intended by
the authors of the Mandate to be of so essential a nature in the mandate
institution, that the institution could not exist without it; secondlv, that
this situation, coupled with the non-provision for substitution o( super
visory organs, led to a total lapse of the mandate institution on dissolu
tion of the League, and not, as contended by Applicants, to a keeping
alive of the Mandate and supervision through the "assertion" or "main
tenance'· of rights of administration and possession by Respondent; and
thirdly, in the alternative to the foregoing, that if the Mandate still exists,
it can only be without an obligation of accountability to a supervisory
organ.
37. In the rest of this Chapter, Respondent will deal with the question
whether the compromissory clause in Article 7 of the Mandate can have
any effect on the conclusion reachcd herein (i.e., particularly the second
aspect thereof as stated above).
I II, pp.IO·I 1.
2 Ibid.,pp. u-q.
3 Ibid.,p. 12. REJOINDER OF SOUTH AFRICA 85
B. The Compromissory Clause in Article 7 of the Mandate
I. INTRODUCTORY
1. Before dealing with Applicants' arguments relating to the compro
missory clause in Article 7 of the }landate, it is necessary to repeat
briefly the context in which this issue again arises for consideration in
the present stage of the proceedings. As indicated above 1, Respondent
submits that, upon the dissolution of the League, the provisions regarding
supervision of mandatory administration by organs of the League
lapsed. Respondent's further submission, viz., that this lapse rendered
2
the l\fandate incapable of furthcr existence to any cxtent whatever ,
necessitates an examination of contentions or views to the effect that the
compromissory clause fi.lied the void caused by the lapse of Article 6,
and thus kept the Mandate alive 3•In this connection Respondent posed
the following questions in the Counter-i\Iemorial, each of which would
have to be answered in the affirmative for a fi.nding that such vicws or
contentions were correct:
"(a) Whether the clause was intended to provide for any super
visor~- fonctions in respect of Mandates, and, if so,
(b) whether such supervisory fonctions were of suffi.dent efficacy
so as to act as a substitute for those provided for in Article 6,
and thus to have prevented the lapse of the Mandate;
(c) whether the clause itself survived-
(i) the disappearance, on the dissolution of the Permanent
Court of International Justice, of the tribunal provided
for in the clause for the adjudication of disputes; and
(ii) the disappearance, on the dissolution of the League, of
membership in the League, mentioned in the clause as a
requisite for invoking it3."
Upon any one o! these questions being answered in the negative, the
compromissory clause could have had no effect in prcventing the lapse
of the :\fandate. Respondent submitted in a fully reasoned argument
that not onlv one, but ail the questions are to be answered in the nega-
tive 4. •
In their Reply, Applicants approach this issue as follows: as regards
question (c) they rely on the 1950 Advisory Opinion and the 1962 Judg
ment on the Preliminary Objections without presenting any further
argument 5, and, apparently, without appreciating the relevance of this
question to the issue regarding the lapse of the i\landate 6 ;as regards
question (a) they rely on the said Opinion and the said Judgment, and in
1 Vide Chap. III and Chap. IV A, para. I, supra.
z Fide Chap. IV A, supra.
J li,p. JïI.
• Ibid., Counter-).lemorial,Book II, Chaps. V A and V B.
-' l'ide1\'p. 546.
6 Vide para. z, infra.86 SOUTH WEST :\FRICA
addition present some argument 1; and, finally, regarding question (b)
no argument in reply is presented at ail 2• The rest of this Chapter wiU
consequently be devoted to the following topics, viz., firstly, the scope
and purpose of the compromissory clause, and secondly, the effect of the
I950 Advisory Opinion and the I962 Judgment.
The discussion under the first head will concern mainly question (a)
above, although, due to the fo1m taken by one of Applicants' arguments,
3
there will also be some reference to question (c) • Under the second
head the discussion will relate to both questions (a) and (c).
II. THE SCOPE A~D PURPOSE OF THE CO:.iPRO.MfSSORY CLAUSE
2. Applicants say:
"Respondent's contention with respect to the assertedly limited
scope of the compromissory clause no doubt is essential to its argu
ment that the lapse of Article 6 of the i\landate collapsed the ;\lan
date as a whole. Unless Respondent succceds in showing that the
compromissory clause is so inconsequential in purpose and conse
quence as, in effect, to be de minimis in the scheme of the Mandate,
Respondent obviously cannot carry its contention that the :Mandate
as a whole has lapsed by reason of the asserted lapse of Article 6 4."
Applicants thus single out only one of Respondcnt's contentions (i.e.,
that relating to question (a) above) 5 and state that it is "essential''
tu Respondent's argument. This statement is, of course, incorrect. As
demonstrated above, Respondent's contentions. with regard to the cum
promissory clause are not limited to the scope and purpose of the clause,
but comprise three broad submissions, each of which would, if accepted,
be decisive 6•Probably because of a mistaken view regardingthe import
ance of the issue conceming the scope and purpose of tht: compromis
sory clause (as appears from the above-quoted passage). Applicants have
singled it out from the other issues referred to above 5 for presenting
argument on the merits thereof in their Reply. In the succeeding para
graphs, Rcspondent will deal with this issue.
3. Rcspondent's contention in the respect under .consideration was
summed up as follows in the Counter-Memorial:
"... it is submitted that the Permanent Court dicl not possess any
fonction of judicial supervision in respect of Mandates, sincc its
1 Vide. IV, pp. 540-546. In limiting their argument to this one aspect Applicants
apparently labour under the mistaken impression that this represents the only
question relevant to the issue regarding the Iapse of the :\landate-videpara. 2,infra.
2This issue was dealt with in Il, Book Il, pp. 171-173 of the Counter-:\Iemorial
where Rcspondent submitted that, even accepting the dews uf the majority judges
in the 1962 Judgment regarding the scope and purpose of the compromissory clause,
the clause could not have been a satisfactory substitute for the provisions of Articl6
of the 1\landate.
3 Vide para. 5, infra.
4 IV,p. 540.
5 Vide para. 1, supra.
6 Vide para. 1, supra. R.espondent is neverthcless grateful for the correctness of
Applicants' statcment that Rcspondent's argument on the lapsc of the :Uandate was
based on the lapse of Article 6, and not vice versa, as is put forth elsewhere in the
Reply-vide Chap. ru, para. 2,supra. REJOI~DER OF SOUTH AFRICA
competence was limited to deciding disputes relating to the rights
or legal interests of i\lembers of the League in the i\landate, and
J[embers did not individually possess any right or Jegal interest in
the observance by the Mandatory of the conditions imposed in the
i\Iandate for the bencfit of the inhabitants of the territory except in
cases where the breach of these obligations affected the material
interests of individual League i\Icmbers, either directly or through
their nationals 1".
Applicants submit that this contention renders "the compromissory
clause meaningless" 2•They then continue:
"In an effort to avoid so patently absurd a result, Respondent
suggests that there are, in the Mandate, provisions which do not
deal with the interests of the inhabitants, and that the comprornissory
clause has meaning, because it may be deemed applicable to this
type of provision 2." (Italics added.)
It is denied that any statement to this effect can be found in any plcading
filed by Respondent.
In fact, Respondent said:
"It is further evident that certain of the conditions ... directed
towards indigenous intercsts, could in addition serve the interests of
League 1l1embers (e.g., the restrictions upon traffic in anns and am
munition and upon fortification and annament) 3" (italics added),
and "[e]ach of the mandate instruments contained provisions apparently
intended specifically for the benefit of member States and their
4
nationals" • To this there was added in a footnote: "Although in addi
tùm in the interests of the inhahitants of the mandated territories." The
text continued:
''These were, for cxamplc ... provisions in the C l\landates rela
tive to the freedom of entrv, movement and residence of mission
aries who were nationals of League l\Iembers. Then there were also
contained in the illandate instruments other provisions, P,imarily
intended for the benefi,t of the inhabitants, the non-observance of which
could, however, affect also the material interests of ùzdividual League
M embers. Examples would be the provisions with regard to the slave
trade, and provisions with regard to traffic in liquor which, if violated
by a Mandatory, could possibly affect neighbouring or even other
States which, being Members of the League, would then have a
legal right to object 4." (Italics addcd.)
4. Applicants' incorrect rcndering of the above contention as being
that "there are, in the Mandate, provisions which do not deal with the
interests of the inhabitants" 5,enables them to reply plausibly as follows:
"First, there arc no organic provisions in the Mandate that do not
deal in some manner with the interests of the inhabitants. The pro
hibition against the building of military bases and fortifications in
1 JI,p. 193.
2 IV, p. 541.
3 II,p. 105.
• Ibid., p.177.
! ltalics added.88 SOUTH WEST AFRICA
Article 4, is, inter alia, incidental to the general prohibition against
the improper use of the inhabitants for military purposes ...
Article 5, assuring entry and travel to foreign missionaries, mani
festly is incidental to the Article's general_guarantee of freedom of
conscience and worship for the natives 1." (Italics added.)
It is interesting to note how Applicants, in answering an argument not
used by Respondent, reach basically the same conclusion as that actually
submitted by Respondent, and even quote the same examples.
The extent to which varions provisions may have been intended to
secure the respective interests of League Members and of the inhabi
tants of mandated territories, is a matter of inference, and it is susceptible
of speculation. So, for example, Quincy Wright reflects that-
"[t]hough [provisions against recruiting of natives] assure the na
tives against military exploitation in the interest of the mandatory,
doubtless the interest of third states in the disarmament of the mandated
areas was an even 11UJTiemportant reason for .their indusion in the
2
Covenant and the mandates ". (ltalics added.)
Whether Wright was right or wrong in this view, does not affect Re
spondent's argument. The important point is that there were a substan
tial number of provisions in fact serving the interests of both League
~lembers and the inhabitants.
5. After advancing the argument quoted in the preceding paragraph,
Applicants state:
"Secondly, as the Court has already held, the phrase 'any dispute
whatever' clearly refers to disputes conceming interpretation or
application of any and all provisions of the Mandate.
Applicants submit that the scope of the compromissory clause,
thus determined by the Court, makes clear that it is the international
community of States which has a legal responsibility for the protection
of inhabitants of the Territory. Under the scheme of the Mandate,
certain States mernbers of the community, such as Applicants herein,
accepted the rigbts and duties of membership in the 'organized body',
representing the international community, by becoming members of
such organized bodv-formerlv the League of Nations, now the
United Nations. • •
Among the rights and duties thus accepted by Applicants, is that
of submitting for adjudication by this Honourable Court a dispute
conceming Respondent's conduct of its obligations toward the in
habitants of the Territory 3." tltalics added and footnotes omitted.)
The first paragraph of the above-quoted passage, setting out the find
ing of the Court in 1962 is correct 4• The inference which Applicants
seek to draw from it, is, however, in Respondent's submission, fallacious,
and, indeed, contrary to express findings of the Court. Applicants'
argument may be rcndered as follows:
1IV, pp. 541-542.
2 \Vright,Q., 1\,/andates under the League of Nation(1930),p. 472 and vide Hall,
H. D., J',-fandaies, Dependencieand Trnsteeslzip (1948), pp. 68-69.
3IV, p. 542.
• For Respondent's submissions regarding the effect to be given to the Judgment
and Opinions; vide para. 14, infra. REJOI~DER OF SOUTH AFRICA 89
(aJ "Any dispute whatever" refers to disputes concerning any and
all provisions of the Mandate;
(b) therefore States which are members of the "'organized body'
representing the international community" (now the United
Nations) have locus standi to institute contentious proceedings
before this Court.
This is, however, a complete non sequitur. The nature of the dispute
cognizable by the Court (jurisdiction ratione materiae) does not per se
determine which States are entitled to institute proceedings (jurisdiction
ratione personae). ln fact the question of competence to invokc the
compromissory clause (i.e., jurisdiction in the latter respect) was exam
ined ·by the Court in the 1g62 proceedings in the light of the words
"... if any dispute whatever should arise between the )landatory and
another Member of the League of Nations ... " 1•(Italics added.)
Of the majority judges who held that there still èxisted States com
petent to invoke this clause, not one decided in favour of Applicants'
submission (which had also been propounded at that stage) that mem
bership of the United Nations had, after the dissolution of the League,
replaced membership of the League as the qualifying factor in regard to
such locus standi • Ali these judges came to the conclusion that locus
standi remained vested in States which were Members of the League of
Nations at the date of its dissolution 3•Respondent does not appreciate
on what basis Applicauts now seek to deduce support for a proposition
apparently rejected by the Court, by drawing inferences from passages
in the Judgment dealing with entircly different issues. If Applicants wish
to submit that the Judgment and separate opinions were wrongly de
cîded on the issue relating to the present effect of the words "another
:M.emberof the Leagut: of Nations", or that the findings thereon were in
consistent with the Court's view regarding the nature of disputes cog
nizable by the Court, it is surely their dutv to the Court to do so in an
open manner, and to present argument in ·support of their submissions.
6. At varions places in the Reply, Applicants use arguments to the
effect that Respondent's construction of the compromissory clause "seeks
to transmute the concept of 'sacred trust' into a moral princîple, rather
than one of legal effectiveness'' •. These arguments seem to be based on a
suggestion that absence of compulsory jurisdiction renders an obligation
inîntemationallawmerelya moral one, or, conversely, that the existence
of compulsory jurisdiction is an essential prerequisite to the creation of
legal obligations in international law. This proposition, however, need
only be stated to be refuted. Compromissory clauses constitute the excep
tion rather than the rule in international treaties and conventions, and
international law concedes legal validity and effect to treaties irrespective
of whether they contain such clauses. In the mandates, moreover, the
absence of compulsory jurisdiction to enforce the interests of the inha
bitants of mandated territories would a fortiori not have affected the legal
nature of the 1\landatories' obligations, inasmuch as international organs,
1 _.\rt7 of the Mandate fo1German South-\Vest Africa.
2 Vide Il, pp.122. 236.
3 Vide analysis in Il,pp. 214-256.
• IV, pp. 542 ami 544-545. Vide also Chap. Il, para. 13, supra and Part III.
sec.C, paras. 5-7, infra.90 SOUTH WEST AFRICA
although not of a judicial nature, wern specifically charged with the func
tion of ensuring compliance with such obligations.
7. App1kants also seek to derive support for their contentions from
the history of the drafting of the mandates 1.Certain basic misconcep
tions, however, underlie the whole of their argument in this regard.
Thus they submit that in respect of the B and C l\fandates there were
two types of provisions namely:
(a) those which "dealt with the duties of the Mandatory with respect
to the well-being of the inhabitants" and
(b) those which "gave to nationals of Members of the League of Nations
certain rights, including particularly so-called 'open door' rights" 2•
Of these provisions, according to Applicants, both types were found in
B Mandates, but only type (a) in C Mandates 2•
The fallacy in Applicants' argument is threefold. Firstly, the rights
for which provision was made in the mandates concemed, other than in
respect of the well-being of the inhabitants, were not confined to nationals
of l\lembers of the League of Nations, but extended in several respects to
League ivlembers themselves. This will be further demonstratcd below.
Secondly, the method of classification is wrong in another respect
also. Each and every provision of the B and C M.andates cannot be
classified as being concemed either exclusively with the well-being of
inhabitants or exclusively with rights or interests on the part of League
Members and their nationals. As has been shown 3.a considerable number
of provisions have the dual aspect of bcing concerned with, or being
capable of affecting, both those matters.
Although Applicants, in making the above classification, disregard
this factor, they do not appear to be unaware thereof when they say in
cautious terms that "... there are no organic provisions in the Mandate
that do not deal in som,emanner with the interests of the inhabitants" 4.
(Italics added.) And elsewhere in the Reply 5, they themselves quote,
apparently with approval, the passage from Quincy Wright cited above,
6
relating to the military clause in the mandates •
The provisions with such a dual aspect were found in bath B and C
Mandates, and included those relating to military training, fortifications,
traffic in arms and ammunition, supply of intoxicating liquor, the slave
trade, etc. 6 The implications of these provisions demonstrate also that
Applicants' argument is fallacious in the first respect mentioned above:
clearly the provisions were intended, inter alia, to confer rights on Mem
bers of the League themselves, in their own interest, as distinct from
inhabitants' well-being and individual interests of nationals.
The third fallacy in Applicants' contention really flows from the first
two. lt consists of the suggestion that all the provisions of C Mandates
were concemed with the inhabitants' well-being only. ln fact there were
a number with the dual aspect: in addition to these that have just been
mentioned, there werc also the provisions regarding entry, travel and
1 Vide IV,pp. 542-544.
2 Ibid.p. 542.
3 Vide paras.3 and 4, supra.
4 IV, p. 541.
5 Ibid., p. 565.
6 Vide para. 4, supra. REJor::-rOER OF SOUTH AFRICA 9I
residence of missionaries, which expressly benefited nationals of League
11embers, apart from also contemplating inhabitants' well-being.
8. Applicants proceed to say:
"The compromissory clause. which was first introduced by the
United States in connection with the drafting of the 'B' .Mandates,
made clear the legal distinction between the two types of provi
sions 1.''
They then refer to the two paragraphs in the United States draft
which read as follows:
"If any dispute should arise between the llembers of the League
of Nations regarding the interpretation or application of the present
Convention and the dispute cannot be settled by negotiation, it will
be referred to the Permanent Court of Justice ...
The subjects or citizens of the States l\Iembers of the League of
Nations may also refer daims relating to breaches of their rights
conferred upon them by Articles 5, 6, 7, 7a and 7b of the Mandate
to the Court for decision 2."
Applicants' comment on this draft is:
"Hence, the legal interest of a Member of the League conceming
the manner in which the Mandatory was discharging its obligations
under the j\fandate toward the inhabitants was distinguished from
the legal interest of a national of a Member of the League with
respect to the rights granted to him 3." (Italics added.)
But the italicized words do not give a correct rendering of any concept
found expressJy or by implication in the terms of the draft compromissory
clause. The clause distinguished between possible proceedings by League
11fembersand by nationals of such Members: in this sense it may be said
to have distinguished between their interests also. However, the further
element which Applicants seek to infer from this distinction, viz., that
League Members' justiciable interests would-apparently by a process
of elimination-have to relate to "... the rnanner in which the Manda
tory was discharging its obligations under the Mandate toward the in
habitants", is derived not from the draft clause itself but from a gloss
put by Applicants on the terms thereof. This gloss appears to be based.
on Applicants' wrong method of classification referred to above 4, of the
provisions of Band C Mandates, and particularly the first aspect thereof.
Applicants' reasoning is presumably to the effect that, since the second
paragraph of the draft clause was intended to serve the interests of
nationals of Mernber States, there existed no other class of State interest
to be protected by the first paragraph, save a suggested interest in the
performance by the Mandatory of its obligations towards the inhabitants
oftheterritory. This argument falls away if it is appreciated that in pur
suance of the mandates' provisions Members of the League possessed,
as States, interests of their own quite distinct from the individual in
terests of their nationals-as has been demonstrated above 4•
LIV, p. 54~-
2Translation obtained from joint dissenting opinion of Judges Spender and
Fitzmaurice: Soutk West A/rica, Preliminary Objectians, ]udgment, l.C.J. Reports
r962, p. 319 at p.555.
3 IV, P· 543·
• Vide para. 7. supra.92 SOUTH WEST AFRICA
Provision for such State interests was alreadv made in the United
States draft B î\fandate. This draft contained, inte"ralia, clauses requiring
1
equal opportunities in commerce and navigation for member States ,
a clause in the nature of a most-favoured-nation provision to operate
in favour of member States and their subjects 2, an undertaking on the
part of the î\landatory Power to co-operate in the execution of common
measures adopted by the League of Nations with a view to preventing
and combating plant and animal diseases 3. as well as provisions, sîmiJar
to those eventually incorporated in the mandate instruments, relating
to military training, fortifications, traffic in arms and ammunition, sup
ply of intoxicating liquor, the slave trade, etc. 4 It is clear, therefore,
that the United States draft B Mandate contemplated a substantial
number of matters in respect of which Members of the Leaguc would as
States obtain interestsdistinct from those of their nationals. The existence
of such State intercsts provides an obvious rcason for the manner in
which the first paragraph of the draft compromissory clause was formu
lated.
9. This fallacious assumption regarding the purpose intended to be
served by the first paragraph of the United States draft compromissory
clause, invalidates the whole argument which Applicants seck to base
on the history of the Mandate. Consequently, although their account of
historical events is substantially correct, their inferences are, it is sub
mitted, consistently wrong. Thus they point to the approval, on the same
days, of a draft B î\fandate containing a compromissory clause consisting
of both the above paragraphs (although in an amended form) 5 and a
draft C Mandate, containing a compromissory clause consisting of only
the first paragraph 6• The only reasonable inferences which can be drawn
from these facts would appear to be either-
(a) that the legal interests of nationals of Members (as distinct from
the legal interest of Members themselves) were not considered of
sufficient significance in C Mandates to warrant spccial treatment;
or perhaps only,
(b) that the draughtsman of the C Mandate had realized that the
second paragraph was redundant, whereas this was appreciated
or accepted with respect to B Mandates only at a later stage 7•
Except on the fallacious basis referred to above, there is no warrant
for Applicants' conclusion that in the draft C Mandate-
"... the Commission inserted merely the·paragraph·dealing with the
interest of a State î\1ember of the League concerning the manner in
which the M andatory discharged its obligations toward the inhabitants
of the Territory 8". (Italics added and footnote omittcd.)
1 Il,p. 16.
2 Ibid.,p. 17.
3Conférence de la Paix r9r9-r920, Recueil des Actes de la Conférence, Partie VI,
Traités avec les Puissances Ennemies mise en vigueur, A. Préparation de la mise en
vigueur, 1er Fasc., p. 341.
4 /bid.,pp. 340· 34I.
~ In particular, individuals were no longer entitled to move the Court-vide Il,
pp. 17-18.
6
IV, pp. 543-544.
1 Vide li, p. 18.
8 IV, p.544. REJOINDER OF SOUTH ,\FRIC.-\ 93
Applicants seek to strengthen this conclusion by refcrence to the
deliberations of the Milner Commission during which statements were
made to the effect that "the stipulations of the C ~fandates [apply] only
to the interests of the natives" 1• Taken literallv, such statements would
of course be absurd-Applicants themselves do not appear to contest
that some of the provisions of C Mandates served not only the interests
of the inhabitants, but also the interests of other Members of the League 2•
However, when reading the said statements in their context, the seeming
absurdity is explained. Japan was pressing for the inclusion in the C
Mandates of Open-Door provisions similar to those contained in the B
Mandates. Other Members of the Commission, and particularly the
Chairman (Lord Milner) and Lord Robert Cecil, representing the British
Empire, opposed this dernand. The grounds of their opposition were that
the institution of C Mandates represented a compromise, and that agree
ment had been reached, inter alia, on the principle that Open-Door
provisions should not be incorporated in them 3• As the Chairman
said:
"... the fundamental reason for the difference between the B and
C Mandates is a compromise actually accepted by the Powers;
furthermore ... there must be a difference between these two types
of Mandates considering that agreement was reached only on con·
dition that this distinction be recognised 4". (Translation.)
This distinction was expressed in Article 22 of the Covenant as follows:
Whereas paragraph 5, dealing with B Mandates, provided for two types
of conditions, viz., those imposed mainly for the protection of the inhabi
tants, and others which would "secure equal opportunities for the tracte
and commerce of other Members of the League", paragraph 6, dcaling
with C Mandates, required the imposition only of "the safeguards above
mentioned in the interests of the indigenous population".
The statements on which Applicants have seized in purported support
of their contention, merely pointed out, as an answer to the Japanese
daim for Open-Door privileges in regard to C Mandates, that this differ
ence existed between paragraphs 5 and 6 of Article 22. Thus the full
1
context of Lord Cecil's statement, to which Applicants refer , was as
follows:
"Lord Robert Cecil (British Empire) draws the attention of the
Committee to the fact that Article 22 of the Covenant makes a
clear distinction between the two types of Mandate, the stipulations
of the C Mandates applying only to the interests of the Natives 5.''
(Translation.)
And the further passage quoted by Applicants I is an extract from a
statement by Lord i\1ilner during the same discussion and in exactly the
same context 6.
1 IV, p. 544·
2 Vide para. 7, supra.
3 Conférence de la Paix 1919-1920. op. ciL,pp.335-337 and 353·
• Ibid., p. 353.
5 Ibid., p. 336.
6 Ibid.,pp. 335-336.94 SOUTH WEST AFRICA
Quite clearly therefore, the i\Iilner Commission was not concerned to
do any more than to detennine the issue regarding Open-Door privileges
in C i\Iandates-in particular, they did not deYote any attention to the
question whether and to what extent "the safeguards ... in the interests
of the indigenous population" also granted legal interests to States
Members of the League of Nations. This appears clearly also from certain
remarks following on the above-quoted statement by Lord Robert Cecil.
The following is recorded:
"Viscount Chinda [Japan] says that the clause concerning anned
forces and fortifications cannot be considered as drawn up only in
the interests of the Natives and that it is the same with the clause
concerning commerce. With the exception of the fact that the terri
toriesto which the CManda te willbeapplicable, willbecome an integral
part of the Mandatory State, he considers that no difference is to
be made between the Band C Mandates 1". (Translation.)
The Chairman's reaction is significant. He did not dispute that the
military clause served interests other than those of the Natives, but is
recorded as saying:
"... that one cannot go back on the concessions which the Domin
ions believe to have been made in their favour. Consequently,
[I am] opposed to any restriction, except those laid down in the
Covenant, being imposed on the i\Iandatory Power of the C type 1".
Indeed, after the implications of the mi!itary clause regarding Members'
interests had pointedly bcen brought to the attention of the Commission,
plus the fact that Article 5 of the .Mandate expressly imposes on the
i\landatory obligations to "all missionaries, nationals of any State Mem
ber of the League of Nations", no i\lember of the Commission could have
considercd that the C Mandates literally proYided for no interests other
than those of the inhabitants.
ro. Applicants in the Reply advert only in passing to the most im
probable aspect of their argument at present under consideration, namely
that provision for a form of "judicial supervision", should have been
introduced into the mandate instruments without discussion or comment
by any person, and despite absence of provision therefor in the Covenant.
After referring to the minorities treaties, and to the proYisions in the
Covenant relating to the pacifie settlement of disputes likely to lead to a
"rupture" between Members of the League 2, Applicants state:
"Such a gcncral policy of reliance upon judicial process may ex
plain the absence of any indication in the legislative history of the
Mandates System that any of the parties concerned questioned the
2
inclusion of the compromissory clause ."
In this regard Rcspondent refers to what was said in the Counter
Memorial relative to the wide differences, for purposes under discussion,
between the minorities treaties and the l\fandate 3•There also appears to
be hardly any similarity at all between the provisions in the Covenant
relating to pacifie settlement of disputes and the compromissory clause
i lV, p. 336.
2 Ibid .p. 546.
3 Il, p. 187. REJOIXDER OF SOUTH AFRICA 95
as interprcted by Applicants, i.e., as providing for a system of "judicial
supervision" in respect of mandates. It is consequently difficult to accept
tha t the two sets of provisions relating respcctively to minorities, and to
the pacifie settlemcnt of disputes, show "such a·general policy of reliance
upon judicial process" that everybocly conccrncd would have rcgarded
the introduction of "}udicial supervision" of m:mdates as something not
calling for any comment.
II. In the Reply, Applicants also refer several times to arguments
assertedly used by Respondent "[i]n order to avoid the clear and natural
meaning of the text of the compromissory clause" 1. In tact of course,
Respondent argued that-
"... the word 'dispute' in the context of the cornpromissory clause
was intended to convey ... the generally accepted legal meaning,
namely a disagreement or conflict between the :;\Iandatory and an
other Member of the League concerning the legal rights or legal
intcrests of the latter in the provisions of the Mandate 2". (Foot
note omitted.)
Applicants do not contest this interpretation, and indeed expend some
ingenuity and imagination in an attempt to prove the existence of a-
"... legal interest of a Member of the League concerning the manner
in which the l\Iandatory was discharging its obligations under the
;\Iandate toward the inhabitants ... 3",
which clearly indicates that they accept Respondent's interpretation.
The question for detennination then is-
".. , what rights or legal interests vested in the 11embers of the
League individually so as to ha\·e been capable of giving rise to a
'dispute' in terms of the compromissory clause, and, after fruitless
negotiation. to invocation of the compulsory jurisdiction of the
Court 4''.
The answer to this question cannot be found in the terms of the com
promissory clause, however clear they may be. Thus in referring to a
jurisdictional clause almost identical to the present one, Sir Percy
Spender said:
"Such a clause would normally refer to disputes which relate to
rights and obligations between the parties which exist and are to
be found outside the terms of the clause itsel/; disputes in which a
State claims to be aggrieved by the infraction, on the part of an
other State, of an existing right or interest othenvise possessed by it.
Sl,lch a clause, in short, norrnally cloes not confer any additional
right or interest upon a State other than a right to have recourse to
the tribunal once the conditions imposed by the clause are complied
with. A dispute within the meaning of such a clause normally would
relate to a legal right or interest in the State claiming to be aggrieved,
which resides or is to be found elsewhcre than in such a clause itself.
It would indecd be unusual to find in a jurisdictional clause a sub 5
stantive right which itself could be made the subject of a dispute ."
1
2 IV, p. 5-15·
Il, p. r76 (para. 4).
3 IV, p. 5-13·
• II, pp, 176-177.
5 Nort/iern Camero{)ttS judgment, I.C.J. Reports I963, p. 15 at p.83.96 SOUTH WEST AFRICA
In the same case, Sir Gerald Fitzmaurice referred to-
"... the universally accepted principle that, whatever the apparent
generality of its language ('any dispute whatever' rclating to 'the
provisions' of the Agreement), a purely jurisdictional clause ...
cannot confer substantive rights 1".
The leamed Judge then continued:
"The substantive rights it refers to must be sought clsewhere,
either in the same instrument or in another one. Ali a jurisdictional
clause can do, is to enable any such rights, whatever they may be
(and if they independently exist), to be asserted by recourse to the
tribunal provided for-this provision being the real purpose of a
jurisdictional clause, and ail it normally does 1."
The rights or legal intercsts which vested in the ;\lembers of the League
individually so as to have been capable of giving rise to a "dispute",
must therefore be ascertained by an examination of the mandate provi
sions other than the compromissory clause. It is accordingly not clear in
what manner Applicants suggest "the clear and natural mcaning of the
text" (of the compromissory clause) 2or "the clear text of the clause" 2
assists in resolving this question.
12. Four of the points made by Respondent regarding the nature of
rights or legal interests which were vested in 11lembers of the League
individually, are singled out for reply by Applicants 2• Respondent does
not propose repeating the arguments advanced in this regard in the
Counter-l\lemorial 3• Two of Applicants' statements, however, call for
comment:
(a) Applicants say that Respondent advanced the thesis "... that
Respondent's obligations toward the inhabitants are political or
technical, rather than legal obligations" 2•
As has already been shown 4, this statement is incorrect.
(b) Applicants refer to an argument used by Responc!ent to the effect
that-
"... if its obligations towarc! the inhabitants were covered by the
clause, the Permanent Court would have been in a position to o\·er
rule decisions of the Council approving the manner in which the
11Iandatory performed its obligations; the drafters could not have
intended this result 2". (Footnote omitted.)
A pplicants' comment on this argument is as follows:
"This also begs the issue. It assumes that the obligations of the
Mandatory were not legal in nature, hencc that they were for the
Council to decide rather than for the Court 5."
Respondent does not undcrstand this line of reasoning.
Do Applicants suggest that if the "obligations of the Mandatory were
... legal in nature'' the Counci Icould have had no power to take decisions
regarding alleged violations of the Mandate? If so, their suggestion is
clearly untenable, and indeed in conflict with a contention advanced in
1 Northern Cameroons, Judgmenl, l.C.J. Reports I963, p. 115.
2IV, p. 545·
3Il, pp. I77-193.
• Vide Chap. II, paras. 11-13,supra.
5 IV, pp. 249-254. REJOIN'DER OF SOUTH AFRICA 97
another part of the Reply , where Applicants submit that the Permanent
l\Iandates Commission-
"... developed and interpreted legal principles, based upon the
:\landate instrument and the Covenant, and applied such legal prin
2
ciples to specific situations ".
Or do Applicants suggest that, if there was no jurisdiction on the part
of a Court to overrule the Council's decisions in this respect, then the
"obligations of the Mandatory" could not be "legal in nature"? Again
the suggestion would be untenable, as bas been seen 3•
13. For the reasons set out above, it is submitted that Applicants'
arguments regarding the scope and purposc of the compromissory clause
should be rejectecl. Furthcr support for Respondent's contentions in this
regard is found in some of the opinions in the Northern Cameroons case 4.
The Trusteeship Agreement in that case contained a compromissory
clause which. as has been noted 5, was almost identical with the one at
present under consideration. Although the majority of the Court found
it unnecessary to consider the scope of the clause 6,some of the separate
concurring opinions interpreted it in the same way as contended for by
Respondent in the present case. See, in particular, the opinions of Sir
Percy Spender 7,Sir Gerald Fitzmaurice 8 and Judge Morelli ~-
III. THE EFFECT OF THE 1950 ADVISORY 0PINJO~ AND THE 1ç62
jUDGME~T O:-- THE PRELIMINARY ÜBJECTIO~S
14. In the Reply, Applicants place considerable reliance on the
Advisory Opinion of 1950, and on the 1962 Judgment on the Preliminary
Objections 10•Whilst not disputing the value of the said Judgment as
precedent, Respondent bas submitted that-
"... the Court would always entertain arguments directed towards
persuading it to depart from its previous judgment, and would corne
to a different conclusion where sound reasons exist therefor H".
A similar principle was submitted to apply in the case of Advisory
Opinions 12• -
Although the argument now presented to the Court rclating to the
compromissory clause is largely the same as that adduced for the purposes
of the Preliminary Objections, the issues dealt with and decided by the
Court in this respect in 1950 were substantially different 13•
In regard to the differences between the issues in 1950 and 1962,
1 IV, PP· 249-254.
2 ibid., p. 253.
3
Vide para. 6, supra.
• Northern Cameroons, Judgment, 1.C.j. Reports 1963, p. 15.
s Vide para. 1r, s1,pra.
6 Nortllern Cameroons, judgmen/, l.C.j. Reports 1963, p. 15 at p. 38.
7 Ibid .pp. 76-9r.
8
Ibid., pp. 111-117 and 1r9-r27.
9 ibid., pp. 1.p-149. Sed contra Judge Badawi (p, 152) and Judge Bustamante
(pp. 157-162).
10 IV, pp. 540, 542 and 546.
11 Il, p. ro3.
12 Ibid.,pp. 98-roz. Vide also Chap. II, para. z, rnpra.
13
Vide I, pp. 368-373, 393-394. SOUTH WEST AFRICA
98
refcrence may be made to the following passage from the joint dissenting
opinion of Judges Spender and Fitzmaurice on the Preliminary Objec
tions:
"Sorne of the issues now arising (those connected with the third
and fourth preliminary objections) did not arise at all, and could not
have arisen, in the course of the 1950 proceedings, which were not,
as these are, contentious proceedings. As regards one of the central
issues arising in 1950, namely that of the status of the Mandate as
an international institution, the Court in 1950 did little more than
find, on various grounds, that the dissolution of the League of
Nations had not caused the Mandate to lapse, and that despite this
dissolution, the Mandate was still in force. But the Court clid not
specifically address itself to the question of the basis upon which the
l\landate was in force nor, in particular, to whether it was still in
force as a treaty or convention. In the dispositive of its 1950 Opinion,
the Court did no more, in relation to the present context, than state
that by reason of Article 37 of the Statute, the present Court was
substituted for the former Permanent Court; but both there, and in
the very brief references to Article 37, and to Article 7of the Mandate,
made in the body of the Opinion, the Court seems to have assumed
the existence of the necessary conditions without going into that
matter. The little that was said provides no real assistance, and this
was necessarily so sincc no jurisdictional issue of any kind was before
the Court in 1950. Assumptions apparently made without any
reasoning as to, or consideration of, the specific underlying issues
involved, in anAdvisory Opinion directed chiefly to other matters not
involving any concrete jurisdictional question, clearly do not consti
tute a sufficient basis on which to found jurisdiction in subsequen t
contentions proceedings in which these issues are now directly
raised ."
Applicants are consequently wrong in suggesting that the arguments
now raised, had all becn presented to and dccided by the Court in 1950 2•
They are also wrong in their specific statement that the issue relating to
the scopc and purpose of the compromissory clause (which was in sub
stance comprehended in the third Preliminary Objection)~
"... raises the question, twice presented to and adjudged by the Court:
what are the provisions of the Mandate, as to which disputes con
cerning interpretation or application are properly referable to the
Court? 3 " (Italics added.)
It should also be recalled that the decision on the Preliminary Ob
jections was reached by a very narrow majority, and, in the words of
Judge Tanaka,
"[t]he formai authority of the Court's decision must not be main
tained to the detriment of its substantive authoritv. Therefore, it is
quite inevitable that, from the point of view of the conclusion or
reasoning, the minority in one case should become the majority in
' South West A/rica, Pre!iminary Objections, Judr;ment, 1.C.J. Reports I96I!,
p. 319 at p.472.
2 IV, pp. 5n and 546.
3 Ibid., p. 540. REJOINDER OF SOUTH o\FRICA
99
another case of the same kind within a comparatively short space
of time 1."
lV. Co~cLUSION
15. As clcmonstrated above, Respondcnt's argument regarding the
cornpromissory clause in Article 7 of the l\Iandate, is in rnaterial respects
not controverted by Applicants in the Reply. Where Applicants du
dispute particular aspects thereof, it is submitted, for the reasons set out
above, that their arguments do not detract at ail from the validity of
Responclent's contentions.
1 Barce/ona Traction, Light and Power Company, Limiled, Preliminary Objections,
Judgment, !.C.j. Reports I964, p. 6at p. 65. PART III
Section A
GENERAL
I. Introductory
r. In the present Part of the Rejoinder, Respondent will deal with
Applicants' argument rcgarding the issues raised by their Submissions
3 and 4, i.e., the issues arising from alleged violations of Article z, para
graph 2, of the Mandate 1. Respondent's treatment of these issues
occupied the major part of the Counter-MemoriaJ, viz., Books IV to VII
and Book VIII, section A, ail of which are to be read with Book III and
2
the Supplement to the Counter-.;\lemorial. As in the Counter-Memorial ,
the present issues will be dealt with on the assumption, for purposes of
argument, that the .Mandate is still in existence.
Before proceeding to a consideration of the merits of matters raised
in the Reply relevant to the present issues, it will be necessary to deal
with a number of topics of a general or introductory nature. The present
section will be devoted to such purpose, commencing, in the next para
graph, with an analysis of the legal basis of Applicants' charges as
expounded in the Reply. As will be shown 3, the basis of Applicants'
charges as set out in the Reply has undergone a substantial change from
that contained in the Memorials, and Applicants have in truth sought to
introduce a new cause of action regarding their submissions under
consideration.
Il. The Legal Basis of Applicants' Charges
2. In its Counter-Memorial, Respondent contended that Article 2,
paragraph 2,of the i\1andate, read in the light of the Covenant, required
Respondent to use its powers of administration and legislation for the
purpose of promoting to the utmost the matcrial and moral well-being
and the social progress of the inhabitants of the Territory. The conse
quence of this was, in Respondent's submission, that the particular
method to be employed towards achieving this purpose was left to
Respondent's discretion, and that legislative or administrative action
could therefore violate Article 2, paragraph 2, only ifactuated by a
motive or intent other than one directed to such purpose i.An analysis
of the Illemorials likewise led Respondent to the conclusion that-
"... the case alleged against Respondent, in regard to the suggested
breach of Article 2 of the Mandate, is one of bad faith in the exercise
of its powers in terms of the said article, in the sense that it has
1 Vide IV, Reply, Chaps. IV and V, read with parts of Chap. 111. Vide also Part II,
Chap. I, para. 2,supra.
2 Vide Il,p.381.
3 Vide particularlyparas. 2-8, infra.
• Vide II, pp. 381-392. REJOINDER OF SOUTH AFRICA 101
pursued actions ostensibly within its powers for a purpose not
authorized thereby 1".
3. Applicants, however, in their Reply strenuously contest the
2
correctness of the above conclusion •They say that-
''Respondent's misinterprctation of the import of the Submissions
reflects its fallacious assumptions regarding the nature of the Man
date and of the character of Responclent's duties thereunder 3."
In sosaying they probably have in mind their construction of Respond
ent's contention as being that "Article 2, paragraph 2, does not ...
create or embody obligations of a legal nature, but is ... a merely
4
political or moral exhortation" •
As demonstrated above 5, what is "fallacious" is not Respondent's
"assumptions regarding the nature of the Mandate", but rather Appli
cants' representations regarding the nature of Respondent's contention.
4. In tact, Applicants say, their Submissions 3 and 4 are based on the
following conclusion of tact set out in the Memorials:
"... By law and by practice, the Union has followed a systematic
course of positive action which inhibits the well-being, prevents the
social progress and thwarts the development of the ovenvhelming
majority of the people of South West Africa. ln pursuit of this
systematic course of action, and as a pervasive feature of it, the
Union has installed and maintained the policy and practice of
apartheid.
Under apartheid, the status, rights, duties, opportunities and
burdens of the population are determined and allotted arbitrarily
on the basis of race, color and tribe, in a pattern which ignores the
needs and capacities of the groups and individuals affected, and
subordinates the interests and rights of the great majority of the
people to the preferences of a minority. SinΠthis section of the
;\Iemorial is concerned with the record of fact, it deals with apartheid
as a fact and not as a word. It deals witli apartheid in practice, as it
actually is and as it actually has been in the life of the people of the
Territory, and not as a theoretfral abstraction ... 6." (Italics added
by Applicants.)
On the basis of the above-quoted conclusion of fact, Applicants then
reaffirm their Submissions 3 and 4 as meaning-
"... that Respondent's policies and practices, as set forth in Chapter
V of the klemorials and in this Chapter IV of the Reply, charac
terized and described by the terms 'apartheid' or 'separate devel
opment', have violated, and do violate, Respondent's obligations
toward the inhabitants of the Territory in tcrms of Article 2,
paragraph 2 of the ri.Iandate 7".
This is not particularly illuminating, since apartheid itself is defined in
the above-quoted conclusion of fact as a deliberately discriminatory and
1 Vide II, p. 39:;. The analysisis found at pp. 392-395.
2 IV. pp. -::55-25;.
j Ibid., p. 255.
• Ibid .. p. 477.
5 Vide Part Il, Chap. li,paras. 11-14, supra.
b IV, pp. 256-257.
7 Ibid.,p. 257. I02 SOUTH WEST AFRICA
oppressive policy. And Applicants indeed do not abjure their allegations
of deliberate and intentional misconduct on the part of Respondent. On
the contrary, they say:
"Applicants' characterizations of Respondent's policies and ob
jectives by terms such as 'deliberately', 'knowingly', and the likc,
clearlv are intended as infcrences and conclusions reasonablv
flO\ving from Respondent's course of conduct, which is set forth
cxplicitly and fully in the Memorials. Such characterizations
reflecta universaUy accepted axiom that, Jn the absence of evJdcnce
to the contrary, the predictable consequences of conduct are
1
presumed to be intended ." (Footnote omitted.)
5·. ln an argument directed towards showing that Respondent was
aware of the nature of their charges, as set out in the quotation immedi
ately above, Applicants state that they used the words "deliberate"
2
and "systematic" interchangeably in their Memorials . "Systematic"
is defined in the Shorter Oxford English Dictionary as follows:
"Arranged or conducted ac:cording to a system, plan, or organized
method; involving or observing a system ... Qualifying nouns of un
favourable meaning: Regularly organized (for an evil purpose), or
carried on as a regular (and reprehensible) practice 3.''
The only "system, plan or organized method" referred to by Applicants,
was the "pattern which ignores the needs and capacities of the groups and
individuals affected, and subordinates the interests and rights of the
great majority of the people to the preferences of a minority" 4,to which
reference was made in Applicants' defmition of apartheid. And immedi
ately after the passage from the :Memorials quoted abo\"e 5,Applicants
said that-
"... apartheid, as actually practiced in South West Africa, is a
deliberate and systematic process by which the Mandatory excludes
the 'Natives' of the Territory from any significant participation in
the life of the Territory except insofar as the Mandatory finds it
necessary to use the 'Natives' as an indispensable source of common
6
labor or menial service ". (Italics added save for the word "apart
heid".)
It was this alleged "pattern" or "deliberate and systematic process" to
which Applicants referred when they said: "The record as a whole
7
reveals the deliberate design that pervades the several parts"
(italics added), and-
"The Union has not only failed to promote 'to the utmost' the
material and moral well-being, the social progress and the dcvelop
ment of the people of South West Africa, it has failed to promote
such material and moral well-being and social progress în any
significant degree whatever. On the contrary, efforts of the Union
1
2IV, p. 257. Vide also p.587.
IV, p. 257.
3 Onions, C. T. (Ed.), The Shorter Oxford English Dictionary, 3rd ed. (1959),
p. 2116.
• ltalics added.
~ Vide para. 4, supra.
• I,p. rog.
1 Ibid., p. 16r. lŒJOINDER OF SOUTH AFRICA 103
have in fact been directed to the opposite end 1." (Italics added save
for the words "to the utmost''.)
In sum, the "system, plan or organized method" to which Applicants
referred by the use of the word "systcmatic", was the policy which they
callcd apartheid and which they dcfined as involving a "pattern" or
''deliberate and systematic process" or "deliberate design" of oppressive
discrimination against the majority of the population for the benefit of
the minority. Consequently "systematic" could indeed appropriately be
used interchangeably with "deliberate". And Respondent, if following a
pattern or system directed not at promotion of the interests of the inhabi
tants of the Territory, but "to the opposite end", would clearly be guilty
of" ... bad faith ... in the sense that is has pursued actions ostensibly
within its powers for a purpose not authorized thereby" 2•
6. The only point made by Applicants in the passage of the Reply now
under consideration 3,is consequently that the element of deliberation or
intention (or bad faith in the sense aforestated) which they alleged in
their ~1emorials, was and is sought to be established by inference from
Respondent's alleged course of conduct, in accordance with the univer
sally accepted axiom ''that, in the absence of evidence to the contrary,
the predictable consequences of conduct are presumed to be intended" 4.
This point was indeed, as Applicants asscrt 4, fully appreciated by
Respondent. It was by reason of its appreciation of the nature of Appli
cants' case that Respondent presented the Court with full and accurate
information to dcmonstrate that no inference of the kind alleged by
Applicants could be drawn, but that, on the contrai}', the Court should
conclude that Respondent's policics were, and are, dirccted at the uplift
ment and progress of ail the inhabitants of the Territory. Or, to apply the
terminology of Applicants' "universally accepted axiorn", Respondent
brought ''evidence to the contrary" to demonstrate that its intent was not
such as was sought to be presumed-partly in that its conduct was
different from what was alleged, and partly in that a diffcrcnt perspective
was cast upon consequences, real and prospective, and their predictability,
by a fuller knowledge of background, setting and circumstances.
However, in the very next breath, so to speak, Applicants say:
"As is pointed out herein 5, so much of the evidence as is adduced
by Respondent for the purpose of demonstrating its 'good faith', or
that it is [not?] 'actuated by an intention ... other than one to
prornote the intcrests of the inhabitants', would be immaterial even
if it did ... tend to show such 'good faith', or the absence of such
'intention' 6." (Italics added and footnotes omitted.)
In other words, Applicants now contend that Respondent can commit a
violation of Article 2, paragraph 2, of the Mandate even if all its legislative
and administrative acts were and are motivated by a bona fide intention
to promote the interests of the inhahitants of the Tcrritory. In the next
1 I, p. roS.
2 Vide para. 2,supra.
3 Vide IV, pp. 256-257 and para. 4, supra.
• IV, p. 257.
' Referring back, it must be noted, to the very page on which they deal with their
"universally accepted axiorn".
6 IV, p. 260.104 SOUTH WEST AFR!CA
succeeding paragraphs Respondent endeavours to ascertain the true
purport of Applicants' contention in this respect.
7. As noted above 1, Applicants contend that Respondent's policy of
apartheid contravenes Article 2, paragraph 2, of the 11andate. Since,
however, they define apartheid as a discriminatory policy deliberately
imposed to oppress the Natives for the benefit of the European inhabi
tants, their contention in this regard still involves an enquiry into
Respondent's motives or intentions. And when referring to the policy of
apartheid, Applicants usually render it clear that the reference is to
apartheid as defined by them 2•
However, in addition to persisting with these factual charges of de
liberate oppression-which constituted the only possible legal foundation
for Applicants' case, as advanced in the Memorials, in support of their
Submissions 3 and 4 -Applicants introduce a far-reaching innovation in
their Reply. This consists of a contention which is apparently to be under
stood as meaning that a mere differentiation between ethnie groups,
without any intention to benefit one group at the expense of another,
would constitute a violation of Article 2, paragraph 2, of the Mandate.
Thus they say:
"Applicants' Submissions 3 and 4 are grounded upon the premise
that allotment to the inhabitants of the Territory of status, rights,
duties, opportunities and burdens on the basis of race, color or tribe,
does not promote their well-being and social progress. This is but
another way of saying that Respondent is obliged, in terms of the
Mandate, to accord to the inhabitants of the Terri tory legal 'equality
of status', as individual persans.
As is clear from the record herein and, indeed, as is axiomatic to
Respondent's cause, the contrary premise underlies Respondent's
policy: the status, rights, duties, opportunities and burdens of the in
habitants of the Territory are allotted solely on the basis of their quality
and character as members of 'groups', rather than as individuals 4."
(Italics in original.)
In a later passage, they refer to--
"... the policy of apartheid, which in itself violates Article 2, para
graph 2 of the Mandate, by reason of the fact that it allots the status,
rights, duties, opportunities and burdens of the population on the
basis of membership in a 'group', or colour, rather than on the basis
of individual quality, capacity or potential 5". (Italics added, save
for the word "apartheid".)
And they state that-
"Applicants ... insist that the allotment, by governmental policy
and action, of rights and burdens on the basis of membership in a
'group', irrespective of individual quality or capacity, is impermis
sible discrimination, outlawed by legal norms well established in the
6
international community ."
1 Vide para. 4, supra.
2 Vide, e.g.,IV,p. 26o.
J Vide para. 2,supra.
• IV,p. 269.
' Ibid., p. 475.
6 Ibid.,pp. 492-493. Vide also, e.g., pp271 and 404. REJOlNDER OF SOUTH AFRICA 105
In spite of referring, in this passage and in others in the Reply, to
"legal norms" in the plural, Applicants ascribe a specific content to, and
make a real attempt at establishing the existence of, only one norm,
which, in their contention, is said to impart a definable minimum content
to ail the other more vaguely conceived "norms" 1; and so their con
tention under consideration rests in truth only on this one alleged norm 2•
This is called by Applicants the "generally accepted international human
rights norm of non-discrimination or non-separation' '.Apart from provid
ing the definable minimum content of the other "norms", the existence
and "virtually universal acceptance" of this alleged nonn is said to give
"a concrcte and objective content to Article 2, paragraph 2, of the
:'.\landate"3•
As regards the content of the norm, Applicants say:
"... the terms 'non-discrimination' or 'non-separation' are used in
their prevalent and customary sense: stated negatively, the terms
refer to the absence of govemmental policies or actions which allot
status, rights, duties, privileges or burdens on the basis of member
ship in a group, class or race rather than on the basis of individual
merit, capacity or potential: stated affirmatively, the terms refer
to governmental policies and actions the objective of which is to
protect equality of opportunity and equal protection of the laws to
individual persans as such 3".
Applicants then devote considerable space to an attempt at showing
that Article 2 of the Mandate must be interpreted to contain this asserted
"norm of non-discrimination or non-separation'' \ the general acceptance
of which, they say, "... is of decisive relevance to the Cases at bar" 5•
S. lt will be manifest that, by advancing their contention and argu
ment, as outlined above, in regard to this alleged "norm of non-discrimina
tion or non-separation", Applicants have in the Reply introduced a new
cause of action in attemptcd support of their Submissions 3 and 4, and
have manifested a major shift from the stand taken in that regard in the
i\1emorials.Possibly Applicants have realized, in the light ofthe exposition
given in the Counter-Memorial, that their charges of deliberate oppres
sion are not supported or supportable by the facts. Possibly there is
political motivation for an attempt at seeking a ruling from the Court to
the effect that any differentiation on the basis of membership in an
ethnie group, whethcr for a purpose of upliftment or for a purpose of
oppression, violates the Mandate and "is impermissible discrimination,
outlawed by legal norms wellestablished in the international community' ·.
Possibly both these factors or more, are at work. Be that as it may, that
there has been a major shifting of ground is bcyond question.
It istrue that by reference to their alleged "norm of non-discrimination
or non-separation" Applicants can plausibly contend that evidence
tending to show an absence of any intention on Respondent's part other
than one to promote the interests of the inhabitants, would be immate-
1
IV, pp. 511-512.
2 The signîficance, if any, of other undefmed "norms and standards" referred to
by Applicants îs consîdered below. (Sec. C, paras. 32-39, infra.)For present pur-
poses, any such "norms and standards" rnay, however, be disregarded. ·
3 IV, p. 493.
• Ioid.. pp. 4 3-512.
' Ibid., p. 5ro.1o6 SOUTH WEST AFRICA
1
rial .If indeed Article z of the Mandate must be read as containing an
absolute prohibition on "the allotment, by governmental policy and
action, of rights and burdcns on the basis of mcmbership in a 'group'" 2,
Applicants ,vould sufficiently establish a violation of the Article by
proving such an allotment, irrespective of whether it was intended to
operate, or does in fact operate, for the benefit of the inhabitants of the
Territory. The legal position would then be similar to that pertaining,
for instance, to the prohibition in Article 3 of the Mandate on the supply
of intoxicating spirits and bevcrages to the Natives. And since Respond
cnt's policy is avowedly based to a considcrablc extent on an allotment
of rights and obligations on the basis of membership of the different
population groups in the Tcrritory, there would exist no dispute of fact
between the Parties. The position would then indeed be, as stated by
Applicants, that "the decisively relevant facts concerning Applicants'
Submissions 3 and 4 are undisputed" 3.
But ail this would be so only with reterence to the case now sought to
be built by Applicants on the alleged "norm of non-discrimination or
non-separation". None of it would be or is true of Applicants' case as
advanced in the Memorials.
9. It follows, from what was said in the preceding paragraph, that the
only issue between the Parties regarding Applicants' alleged "norm of
non-discrimination or non-separation" is a legal one, viz., whether such
a norm can be read into Article 2 of the Mandate by a process of inter
pretation. And since Applicants' Submissions 3 and 4 are both said to
be based on the existence of this norm ·4.t might be thought a sufficient
answer to these submissions for Respondent to demonstrate the unten
ability of the reasoning whereby Applicants now seek to introduce this
norm into the Mandate. However, the ambignous and confused formula
tion in the Reply of the basis (or bases) of Applicants' case, does not make
it clear that Applicants have indeed now decided to abandon their charge
of bad faith (in the sense of pursuing an unauthorized purpose) which
emerged so clearly from the Memorials. In particular the following
features militate against such abandonment:
(a) As has been noted 5, when first joining issue with Respondent on
the legal basis of Submissions 3 and 4, Applicants do not discard
their al1egations of improper motives on the part of Respondent,
but merely advert to the method by which they seek to prove such
motives.
(b) If Applicants base their case solely on the alleged legal norm of
non-discrimination or non-separation, then the "decisively relevant
facts concerning Applicants' Submissions 3 and 4" would indeed
be, as they say, undisputed. However, Applicants have introduced
in their Reply a mass of factual discussion and averment, of a most
highly controversial content, with a view to supporting their said
1 Vide para., 6, supra.
2 Vide IV, pp. 492-493; and para. 7, supra.
3 Ibid., p. 26o. Vide also pp.221 and 262-263.
• IV, p. 269, as quoted in para. supra, and the statements to the effect that the
"decisively relevant facts concerning Applicants' Submissions 3 and 4 are undis
puted", to which reference was made in para. 8, supra.
5 Vide paras. 4-6,supra. REJOINDER OF SOUTH AFH!CA 107
submissions. This treatment of the facts indeed takes up consider
ably more space than the whole of the lVlemorials .
lt is diffi.cult to imagine the purpose for which this material is
introduced unless Applicants consider that there îs an issue of fact
to be determined between the Parties. And the onlv basic factual
issue in this regard is the one rclating to Respondént's motive or
state of mind. This consideration gains increased weight when one
considers the nature of the deductions sought to be drawn from the
tendercd material-a matter which will be dealt ,vith in the next
subparagraph.
(c) Applicants themselves describe the purpose of their treatment of
the various aspects of Respondent's policy with which they deal 2,'
as being to show that-
"... Respondent's policy and practice with respect to each of these
aspects of lite, is [sic] directed toward the primary end of assuring
an adequate 'Native' labour supply in the Territory, particularly
in its 'White' Police Zone (comprising more than seventy per cent
of the Territory), subject always to the condition that, in the words
of Respondent's Prime Ministcr, 'There is no place for him [i.e. 'the
,Bantu'] in the European community abovc the level of certain
forms of labour' 3".
Applicants further allege that Respondent has rendered its obligations
under the Mandate "subject to the prejudices and attitudes of a small
minority" ~ of the population. They summarize their contentions as
follows:
"In sum, under apartheid, the accident of birth imposes a man
datory Iife sentence to discrimination, repression and humiliation.
It is, accordingly, in violation of Respondent's obligation, as stated
in Article 2, paragraph 2, of the 11Iandate, to promote to the utmost
the wetl-being and social progress of the inhabitants s." (Italics
added save for the word ''apartheid".)
It appears explicitly from these passages that Applicants still rely on the
allegation that Respondent's policy is directed at the unauthorized
purpose of oppressing the Natives for the benefit of the European in
habitants of the Territorv, and that their factual discussion is introduced
for the purpose of estabÏishing such allegation.
10. For the reasons set out in the preceding paragraphs, it would then
appear that Applicants' case, as now formulated in the Reply, rests on
two bases (apparently invoked in the alternative, although nowhere
clearly so stated or explained), viz.,
(a) the suggested legal norm of non-discrimination or non-separation,
in terms of which any differcntiation between groups in the allot
ment of rights and burdcns is said to be a contravention of Article 2
of the Mandate, and,
1
Chapter IV of the Reply, dealing with "Respondent's violations of its obliga
tions towards the inhabitants of the Territory", comprises 220 pages whereas the
Memorials each contain only 170 pages of text.
2 I.e., relating to educationthe economy, political rights, and security of the per-
son, rights of residence and freedom of movement.
3 IV, p. 272.
• Ibid., p. :173. Vide also p. 274.
5 Ibid., p. z74. SOUTH WEST AFRICA
roS
{b) some basis (the exact nature and source of which are not indicatcd)
which requires proof of the factual allegation that Respondent's
policies are actuated by a motive other than one to promote the
interests of the inhabitants of the Territory.
Since Applicants' case appears to have this twofold charactcr, Re
spondent will deal separately with each aspect thereof 1. Hefore doing
so, however, there are some general aspects of Applicants' case to be
considered in the next succeeding paragraphs.
III. Applicants' Case regarding the Coloured and Baster Groups
11. Applicants say that Respondent has been guilty of an "unwarran
ted misinterpretation" 2 and a "strained construction" 3 of their Sub-
missions 3 and 4 "... as excluding certain groups or individuals in the
Territory designated ... 'Coioureds' or 'Basters'" 2.
Accordingly, Applicants now "reaffirm" that "Submissions 3 and 4 do
not exclude, and may not reasonably be interpreted as excluding from
their ambit any inhabitants whatever of the Territory" 4•
It will be recalled that both the said submissions incorporated by
reference a paragraph of the Memorials 5 commencing as follows:
"Deliberately, systematically and consistently, the l\Iandatory
has discriminated against the 'Native' population of South West
Ajrica, which constitutes overwhelmingly the larger part of the
population of the Territory. In so doing, the Manda tory has not only
failed to promote 'to the utmost' the material and moral well-being,
the social progress and the development of the people of South
West Africa, but it has failed to promote such well-being and social
progress in any significant degree whatever 5." (Italics added save
for the words "to the utmost".)
This paragraph concluded:
"The grim past and present reality in the condition of the 'Nafo·es'
is unrelieved by promise of future amelioration. The Mandatory
offers no horizon of hope to the 'Native' population 5."
ln fact, the whole Chapter V of the Memorials 6rendered it abundantly
clear that Applicants' entire case was based on the allcgation that Re
spondent had violated its duty to promote the interests of all the inhabitants
by oppressing some of them (i.e., the Natives), for the benefit of others
(i.e.,he Europeans) 7•
12. In view of the formulation of Applicants' submissions in the
11emorials, as summarized in the immediately preceding paragraph, the
attitude now adopted in the Reply amounts to an attempt to alter and
extend the nature of their charge, apparently to bring it into conformity
with their newly introduced Iegal norm of non-discrimination or non-
1 ln secs. Band C hereof respectively.
2 IV, p. 257.
3 Ibid.,p. 258.
• Ibid., pp.258-259.
5 ],p. 162,
6 Jncluding the said para. 190, as we!l as para.189, which was also incorporated
by reference in Submission 3. Vide para. 12, infra.
' Vide II,pp. 382·383. REJOINDER OF SOUTH AFRICA 109
separation. Possibly this may also be a belated attempt to divert at
tention from Applicants' very evident pre-occupation with Native in
terests, in consonance with the general trend of Black African National
ism. Be that as it may, Applicants try to show that their case, as origin
ally formulated in the Memorials, has not undergone a change in this
respect. Their attempts in this direction are, it is submitted, singularly
unimpressive.
Thus, in the only explanation they offer for their "numerous explicit
references to 'Natives' " 1, they start off by pointing out that the word
2
"Natives", as used by them, was always in quotation marks .The rele
vance of this is not readily apparent. From the Memorials 1 it was quite
clear that Applicants used quotation marks for the terms "Natives",
"Whites", "Asiatics" and "Coloureds" simply because, as explained by
them, these were the terms employed in a census report, "reflecting the
standard usage of the Union Government", in referring "to the popula
tion as divided into four groups" \ What further significance they seek
to attach to it,is not understood, particularly since Applicants do not
appear to dispute that the Natives constitute a distinct and identifiable
population group in South West Africa 4•
They proceed in their Reply to refer to the fact that the Memorials
were said to "... deal with apartheid in practice, as it actually is and as
it actually has been in the life of the people of the Territory, and not as a
theoretical abstraction" 5.They refrain, however, from quoting the very
next sentence in the Memorials, in which there was set out what they
al_Iegedapartheid actually to be in the life of the people of the Territory,
VIZ.,
"... that apartheid, as actually practised in South West Africa is
a deliberate and systematic process by which the Mandatory ex- ·
cludes the 'Natives' of the Territory from any significant participa
tion in the life of the Territory except insofar as the Mandatory
fmds it necessary to use the 'Natives' as an indispensable source of
common labor or menial service ~". (Italics added save for the word
"apartheid".)
Applicants further point to the use of the expression "the inhabitants
of the Territory" in Submissions 3 and 4, which expression, they say,
was employed "without qualification or restriction" 1. However, the
allcged breaches of Article 2, paragraph 2, of the Mandate were defined
in the said submissions by referencc, respectively, to "the respects set
forth in Chapter V of this Memorial and summarized in Paragraphs 189
6
and 190 thereof" ,and "the economic, political, social and educational
policies applied within the Territory, which are described in detail in
Chapter V of this Memorial and summarized at Paragraph 190 thereof" 7•
Respondent has already pointed outs that Chapter V of the Memorials,
including the two paragraphs mentioned, was directed towards showing
1 IV, p. 258.
2 Ibid., p. 257.
l r, pp. r09,r ro.
• Ibid., p. I09.
5 IV, p. 258 (italics added by Applicants); I, p. 108.
• Submission 3, I, p. 197.
7 Subm1ssion 4, ibid.
" Vide para. r r, supra.IIO SOUTH WEST AFRICA
that Respondent was violating its obligations in so far as the Natives
were concerned.
13. In a remarkable attempt to show that "Respondent was not in
fact misled by Applicants' emphasis on 'Natives'", Applicants point
to Respondent's own formulation of the duties sought to be implied by
Applicants in the general provisions of Article 2 of the Mandate. Appli
cants' suggestion in this regard appears to be as follows:
{a) Respondent was aware of Applicants' contention that Respondent
was under a duty to promote the interests of all the inhabitants of the
Territory.
(b) Consequently when Applicants alleged that this duty had been
violated, Respondent must have been aware that they were charging
a violation in respect of ail the inhabitants, and not only in respect
of the Natives to whom the charge was in tenns confined 1.
The lack of Iogic in this reasoning is so apparent as to require no further
comment.
14. After commencing with an averment of "unwarranted misinter
pretation" on the part of Respondent, followed by an allegation of
"strained construction" and a charge of disingenuousness in pretending
to be misled by Applicants' formulation of their charges, Applicants
finally conclude with the somewhat naïve statement that-
"[i]n the light of Applicants' explicit interpretation and reaffi.rma
tion of the meaning of their own submissions, it is respectfully sub
mitted that amendment thereof is unnecessary and unwarranted 2".
15. It remains to consider the effect of Applicants' "explicit inter
pretation and reaffi.rmation" of the meaning of Submissions 3 and 4 on
the issues as thcy now appear from the Reply. In view of the twofold
basis on which Applicants now present this part of their case 3,regard
will be had to both bases. The first basis involves the allegation that any
differentiation between groups constitutes, as a matter of law, a contra
vention of Article 2 of the Mandate. In so far as this newly introduced
part of Applicants' case is concerned (as distinct from the case originally
alleged in the Memorials), it would be correct to say that Applicants'
charge does not allege a contravention in respect of any particular
population group.
The second~ part of Applicants' case is, however, still based on an
alleged deliherate process of discrimination against the Natives for the
benefit of the Europeans 5• AJthough Applicants do in passing refer to
some instances of differential measures applying to Coloured people 6,
they do not, in so far as the Coloureds are concerned, make an attempt
to support a charge, as they do in the case of the Natives, of a process of
deliberate oppression for the benefit of the Europeans. ln regard to this
part of their case, Applicants consequently do not appear to have changed
their ground to any considerable extent in the Reply. At most the purpose
of their "reaffirmation" in this respect appears to be to contend that-
1IV, p. 258.
2 Ibid., p. 259, footnot1.
3 Vide para. 10,supra.
4 In effect an alternative,although nowhere sa put by Applicants.
5 Vide paras. 4-6, supra.
6 Vide, e.g., IV, pp. 363 and 417. REJOINDER OF SOUTH AFRICA III
"... the policy of apartheid is injurious to the genuine interests and
welfare of the entire population, including those whose benefit and
privilege are purported to be served thereby 1''.
In more tangible terms (and in the light of their definition of apartheid) 2
this submission appears to mean no more than that Respondent's policies
which are deliberately oppressive of the Natives, are for that reason also
detrimental to other groups. Such limited averment (if any) as may now
have been introduced in the Reply regarding the additional element of
detriment to groups other than the Natives, however, hardly affects the
essence of the dispute between the Parties, inasmuch as Respondent
contends, and has always contended, that its policies are designed to be
beneficial to the population as a whole (including the Natives), whereas
the primary element in the second basis of Applicants' case remains the
allegation of deliberateness (or bad faith in the sense of an unauthorized
purpose) which is said to underlie Respondent's conduct towards the
Natives 3•
A good example of the manner in which the present averment of
detriment to groups other than Natives is advanced as being dependent
entirely on the premise of oppressive conduct towards the Natives. is to
be found in the following passage regarding education:
"In Applicants' submission, Respondent's policy of educational
apartheid with respect to the children of 'Native' persans within the
Territory inevitably distorts the social perspective and political
and moral outlook of the children of 'Coloured' or 'European' in
habitants. As such, the 'Native' education policy is, in itself, a
violation of Respondent's obligation to promote to the utmost the
material and moral well-being and the social progress of al! of the
inhabitants of the Terri tory •."
This passage in itself will be considered in the portion of this Rejoinder
dealing with education. For present purposes it suffices for Respondent
to point out that there is no introduction by Applicants at this stage-as
could indeed hardly have been permissible~of an independent new charge
alleging deliberatc oppression of groups other than Natives.
In the result it remains unnecessary for Respondent to burden the
record with an exposition of its policies, measures and active programmes
specifically directed towards the economic and social upliftment and
progress, and the political advancement, of the Coloured people and of
the Rehoboth Basters. As in the Counter-Memorial 5 ,Respondent will
refrain from presenting a systematic or complete survey in regard to
them, and references to them will be only for the purpose of explanation
or example, or to answer some specific point or allegation made by Ap
plicants.
1 Vide e.g.,IV, p. 258.
2 Vide para. 4, supra.
3 Vide paras. 4 and 10,supra.
• IV, p. 364.
5 JI, p. 383.II2 SOUTH WEST AFRICA
IV. The Significance To Be Attached to Reports and Resolutions of
United Nations Organs and Agencies
r6. A further alleged misconstruction of Applicants' Submissions 3
and 4 is said to appear from Respondent's attitude regarding the signific
ance to be attached to reports and resolutions of the United Nations, its
agencies and organs, which were referred to in Chapter II of the Memorials.
The said Chapter, headed "History and Background of the Dispute",
contains a summarv of events in the United Nations relative to South
West Africa up to the year r96o, and concludes with the words:
"Having concluded after fourteen years of fruitless efforts to ob
tain compliance on the part of the Union with the Mandate, that
its dispute with the Union has not been, and cannot be, settled by
negotiation, the Applicant bas deemed it necessary to institute the
1
present proceedings, pursuant to Article 7 of the Mandate ."
1t is to be noted that the account of events is arranged in a chronologi
cal order, and not according to subject-matter, although the material
relates to various issues in this case, such as the existence or otherwise
of accountability towards the United Nations 2; questions as to unilateral
incorporation of the Territory or modification of its international status 3;
and the general welfare of the inhabitants 4.
ln view of the heading, contents and method of presentation of the
said chapter, it can hardly be surprising that Respondent gained the im
pression that its purpose was to establish the existence of a dispute be
tween the Parties, and no more (except possibly, the further factor that
such dispute could not be settled by negotiation). This view was fortified
by the fact that in their specific charges Applicants in many cases relied
on specific United Nations reports and resolutions relevant to the par
ticular subject under consideration 5, and did not purport to rely on
Chapter II of the l\1emorials in general.
Applicants now say that Respondent's reading of Chapter II of the
Memorials, dealing, as bas been noted, with a chronological review of
events related to a number of the present issues 6 ,reflects a "third mis
construction by Respondent of Submissions 3 and 4" 7 (italics added), as
a result of which the relevancv of the said reports and resolutions was
wrongly disputed by Respondënt 8•
17. Applicants' attitude shows that there is in this respect a matter of
substance requiring decision by this Court, viz., the significance to be
attached to reports and resolutions of the United Nations, its agencies
and organs, particularly with reference to the issues arising from Appli-
l1, p. "87.
2
3 Vide, e.g., ibid., pp. 58, 59-60, 65 and 75.
Ibid., pp. 58, 7l and 74.
• lbid., PP· 64,69. 70-71, 73·74, 75·77, 79 and 83-84.
s Vide II, p. 3.
6 "'hich would include those arising from Applicants' Submissions I,2, 3, 4, 5,
7, 8 and 9-vide I. pp. r97-r98.
7 The firsttwo being as to the charges heing based on an allegation of bad faith
paras. 2-ro, supra-and as to the charges excluding the Coloureds and Basters
paras. TI·I5, supra.
8
IV, p. 259. REJOINDER OF SOUTH AFRICA II3
cants' Submissions 3 and 4 1.In this regard Respondent's submission
was twofold. Firstly, Respondent contended:
"The said reports and resolutions contain political findings and
recommendations made by political bodies or organs. As such the
findings and recommendations, it is submitted, are of no relevance
whatsoever to this Court's judicial fonction, which is to be exercised
on the basis of the facts, evidence and other material properly
placed before it2."
Applicants' reply to this contention is that their Submissions 3 and 4
do not "merely request the Court to adjudge and declare concerning
allegations of fact", but "request the Court to adjudge and declare that
the poli.ci.esand practices of which Applicants complain, are, as a matter
of law, in violation of Respondent's obligations as stated in Article 2
of the Mandate" 3•And since the issues now before the Court are identical
with the issues before the United Nations, soit is contended, the reports
and resolutions of the said body "are highly relevant to the Court's
judicial fonction in adjudging the legality of Respondent's administration
of the Territory, and are entitled to great weight and respect as authority
thereon" 3•
18. Respondent is not quite clear as to what is meant by Applicants'
contention summarized in the previous paragraph. In this connection
regard must be had to the dual nature of Applicants' case.
ln its first aspect, Applicants rely on an alleged norm of non-discrimina
tion or non-separation. If they must be read as contending that resolu
tions and reports of United Nations organs and agencies may be invoked
to establish the existence of such a norm in the Mandate, such a con
tention is to be considered in conjunction with Applicants' attempt, in
Chapter V of the Reply 4, to establish such existence, and will be dealt
with by Respondent at the appropriate place 5•
The second leg of Applicants' argument is based on an alleged system
of deliberately oppressive conduct on Respondent's part. The legal
proposition inherent in this submission (viz., the proposition that policies
designed to oppress the Native inhabitants of the Territory for the benefit
of the Europeans wmùd constitute violations of the Mandate) is not con
tested, and if Applicants would like, for some reason of their own, to
quote United Nations resolutions in support thereof, Respondent would
have no objection. But it rather appears as if Applicants now wish to use
these reports and resolutions as authority on the crucial question at
issue, namely whether Respondent's policies are indeed deliberately
directed at the purpose alleged by Applicants. This is a question involving
contested facts and disputed inferences therefrom, on which resolutions
of a political body, which has in the nature of things never attempted a
judicial enquiry into the matter, cannot be of any assistance to the
Court.
Perhaps Applicants wish to rcly on these reports and resolutions in an
even more general and vague manner, viz., as authority for the views
expressed in some of them that Respondent has violated the Mandate,
1 Although as indicated above, it arises also with respect to other issues.
, II, pp. 3-4.
3 IV, p. 259.
4 Vide IV, pp. 502-504.
5 Vide sec, B, infra.II4 SOUTH WEST AFRICA
whethcr in relation to the charges actually made by Applicants in the
present proceedings or in other respects. If that is so, it is even more
difficult to see how such reports and resolutions could be relevant or of
assistance. Apart from the obvious irrelevancy of views expressed on
charges not made in these proceedings, all views expressed in them must
again rest on the authors' judgment and assessment of the law and of
facts, and the same considerations therefore apply as above.
It is to be noted that the Special Committee for South West Africa
itself apparently did not consider that United Nations reports and reso
lutions could be of any value to the Court as "authority" or otherwise.
Thus on 27 November 1961 the Chairman of the said Committee-
"... pointed out that the Court would consider the matter [i.e. the
present proceedings] on a purely juridical level, white the United
Nations was called upon to take a decision of a political nature. The
General Assembly had already adopted resolutions concerning
South \Vest Africa at its previous session, namely, at a time when
the International Court of Justice had had before it the complaints
of Ethiopia and Liberia. It was his view that whatever decision the
General Assembly made would have a political bearing and would
not influence the Court in its decisions 1."
19. The second ground on which Respondent denied the usefulness of
reports and resolutions of the organs and agencies of the United Nations,
was the inaccuracy and unreliability of the factual statements, assump
tions or inferences on which they were based 2• Applicants have not
attempted to support the accuracy or reliability of such reports and
resolutions, but state instead that Respondent's criticism was "ungen
erous'' in view of Respondent's "obdurate denial of access of United
Nations committees and agencics to the Territory" 3•It does not seem
material to determine for present purposes whether, as Applicants
suggest, the inaccuracy or unreliability in question can be attributed
to a Jack of opportunity for inspection and investigation in situ, or
whether (as Respondent contends) there are other or additional reasons
therefor. Whatever the reasons, the point of Respondcnt's criticism
remains valid, namely that this Court cannot rely for reasonable accuracy
on United Nations reports and resolutions cited by Applicants in support
of their case.
20. Finally, Applicants make the rather cryptic statement:
''The sole exception [i.e., to the 'obdurate denial of access'], that
of the ill-starred 196z visit to the Territory of the Chairman and
Vice-Chainnan of the Special Committee for South West Africa ...
as is shown by the circumstances attending the visit and its3after
math, stands as the exception which proves the rule ."
Respondent is not sure what rule is alleged to be proved by this
exception, but would suggest that in view of the circumstances set out
above 4,the moral to be drawn from this "ill-starred visit", and partie-
1 G.A., O.R., Sixleenth Sess., Fourth Comm., 1225th Meeting, 27 Xov. 1961,
para. 25, p.429.
2 II,p. 4.
3 IV, p. 259, footnote2.
• Vide Part I, para. 4, and Annex to Part I,supra. REJOlNDER OF SOUTH AFRICA
II5
ularly its "aftcrmath", is that an objective and impartial assessment of
the facts of South West Africa does not fall within the duties which
the Special Committee for South West Africa set itself, thus once more
emphasizing the impossibility of placing any rcliance on the reports of
this Committee.
V. References to Other Countries, including the Applicant States and
South Africa
21. ln the course of the Counter-Memorial Respondent had occasion
to refer to laws, measures, policies and circumstances in other countries,
including the two Applicant States. Such reference was, as stated by
Respondcnt, purely by way of example, comparison or illustration-ta
show the similarity of problems found elsewhere in the world, and to
compare the various methods designed to salve them, or to show the
contrast between conditions in South West Africa and other territories,
necessitating differences of approach in the framing of policies of legis
lation and administration, or to render possible a mcasure of comparison
of standards of achievement in comparable circumstances 1.
In view of the serious charges made by Applicants, one would have
thought that they would welcomc an opportunity to compare circum
stances in the Territory with those pertaining elsewhere on the Conti
nent of Africa. On the contrarv, however, one finds their attitude ex
pressed in the following words:'
"... Respondent's frequent refcrences 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 apartheid 2". (Footnote omitted.)
It is submitted that this contention, and the reasoning on which it is
sought to ·be based, are untenable, for the reasons set out in the suc
ceeding paragraphs.
22. Although it is true that there is no longer any other African State
subject to mandate, Respondent docs not appreciate why comparison
with other States would thereby be rendered "irrelevant". In Africa one
finds (or found) mandated territorics, trusteeship territories, non-self
governing terri tories,and independent States. In respect of the three first
mentioned categories, there exist (or existed) legal obligations in terms of
the Covenant, Charter, and relevant mandate or trusteeship instruments
requiring a promotion of the interests of the inhabitants of the territories
concerned. Although, in some respects, these obligations differ inter se,
the broad objective surely shows sufficient correspondence to render
reference to methods employed in attempting to achieve that objective
both relevant and useful for present purposes-particularly in regard to
an issue whether Respondent, in adopting similar methods in regard to
comparable situations and problems, has acted arbitrarily and with
oppressive intent, or in good faith with a view to promoting well-being
and progress. As far as independent States, such as the two Applicants,
are concerned, Respondent has always assnmed that they also, although
1 II,pp. 382-383.
2 IV, p. 364.n6 SOUTH WEST AFRICA
not legally obligated thereto, in practice set themselves the objective
to "promote to the utmost the material and moral wcll-being and social
progress'' of the persons under their sway. For that reason Respondent
considered that thcir problems, and methods adopted towards solving
them, might throw light on the issue at present before the Court-again
particularly as regards good or bad faith. If Applicants were to assure
this Court that they do not in fact set themselves the objective referred
to, there would be no further point in referring to circumstances in their
countries, save perhaps on the question of the genuineness of their
concem for the well-being and progress of the inhabitants of South
\Vest Africa. ln the absence of such assurance Respondent will not,
however, lightly accept that its assumption was wrong as regards
Applicants, and in any event cannot believe that it was wrong ,vith
respect to other independent States in Africa.
23. Applicants' second reason for contending that practices in other
States in Africa are irrelevant, is that no other State practises the policy
of apartheid. This attitude would be pertinent in so far as Applicants
rely on the existence of an alleged legal norm, which would by itself
render Respondent's admitted policies violative of the Mandate. As has
been noted 1, Applicants' case based on the alleged existence of such a
norm requires no further evidence at ail, inasmuch as it entails that any
official differentiation on the basis of membership in a group would
constitute a contravention of the Mandate.
The position regarding the second basis of Applicants' case is, however,
totally different. In this aspect of the case, Applicants request the Court
to fmd by inference from the facts that the policies to which Applicants
refer as apartheid are designed to oppress the Native inhabitants of the
Territory for the benefit of the Europeans 2•For the purposes of this
it would seem highly relevant to compare the problems,
submission
attempted solutions, and standards of achievement in comparable
territories and States in Africa. And it was, indeed, on this aspect of
the case only (which was the only aspect advanced in the l\Iemorials) 3
that Respondent introduced the comparisons in the Counter-Memorial.
The mere fact that certain aspects of Respondent's policies are not found
elsewhere on the Continent of Africa (at least not under the name of
apartheid) would appear not to preclude a comparative survey, but, on
the contrary, to necessitate it, so that the Court may have a proper setting
within which to determine and evaluate the real nature, objectives and
implications of such aspects. In fact, Applicants themselves make copious
reference in their Reply to circumstances in other territories 4•
24. Allied to the topic dealt with in the preceding paragraph, is the
subject of references to circumstances and policies in South Africa itself.
In this regard, Respondent said:
"This case is concemed with Respondent's policies and actions in
South West Africa, and not with those in South Africa itself. i'Jever
theless it will be necessary from time to time to refer to events,
policies or circumstances in South Africa, either by way of expia
nation or illustration, or to answer some specific point raised by the
1 Vide para.8, supra.
2
3 Vide paras. 4-6, supra.
I.e., as regards Submission3 and 4.
• Vide, e.g., IV, pp. 398-403, 426-430 and 451-457. REJOINDER OF SOUTH AFR[CA II]
Applicants. The intention is not, however, to provide a complete
or comprehensive review of such events, policies or circumstances
such review would be entirelv irrelevant to the issues before the
Court ... ,.. •
Applicants do not contest the profriety of this approach, but, on the
contrary, appear to agree therewith .
Any further references in the Rejoinder to policies and actions in South
Africa, will therefore be made for the same purposes and on the same
limited basis as indicated in the Counter-Memorial.
VI. Summary of Certain General Topics
25. Finally, before proceeding to deal separately with the two bases
relied upon by Applicants in this part of their case, it may be useful to
note a feature which is common to Applicants' treatment of a number of
general topics considered in the previous paragraphs. It has been pointed
out that Applicants formulate their charge of bad faith (in the sense of
pursuing an unauthorized objective, viz., an oppressive intent) as one
to be proved by inference from the circumstances 3•lt is instructive to
sec what circumstances they regard as relevant for this purpose. Firstly
they say that-
"... so much of the evidence as is adduced by Respondent for the
purpose of demonstra ting its 'goodfaith ',or that it is[not ?]'actuated
by an intention ... other than one to promote the interests of the
inhabitants', would be immaterial even ifit did ... tend to show such
'good faith', or the absence of such 'intention' 4". (ltalics added.)
Howe\'er, when it cornes to Applicants' treatment of the subject,
evidence is tendered in an attempt to establish that-
"... Respondent's policy and practice ... is (sic) directcd toward
the primary end of assuring an adequate 'Native' labour supply in
the Territory, particularly in its 'White' Police Zone ... subject
always to the condition that ... 'There is no place for him [i.e.,
"the Ban tu"] in the European community above the level of certain
fonns of labour' s".
Secondly, Applicants say that " ... Respondent's frequent references
to practices in other African States ... are wholly irrelevant to the
present proceedings ... " 6_
Nevertheless one fmds in the Reply lengthy parts devotcd almost
exclusively by Applicants to practices in other African States 7 •
Thirdly, although apparently not prepared to defend the reliability and
8
accuracy of United Nations reports and resolutions ,Applicants never
theless submit that such reports and resolutions-
1Il, p. 383. Vide also pp. 457,461, 476 and 487.
, Vide, e.g., IV, p. 313 and p. 443, footnotc r,.
3 Vide paras. 4-6, supra.
• IV, p. 260. Vide paras. 6 and 8, supra.
5 Ibid., p. 272. Vide para. g (c), supra.
6 Tbid., p. 364. Vide para. 2 r,supra.
7 Ibid., pp. 398-403, 426-430 and 451-457; vide para. 23, supra and footnote r,
p. 118.
R Fide para. rg, supra.II8 SOUTH WEST :\FRIC.-\
"... are highly relevant to the Court's judicial fonction in adjudging
the legality of Respondent's administration of the Territory, and
are entitled to great weight and respect as authority thereon 1".
To summarize, Applicants ask this Court to determine an issue of
fact bv-
(a) ignoring ail evidence tendered by Respondent in respect of the
said issue;
(b) giving consideration solely to the evidencc tendered by Applicants;
and
(c) giving effect to the reports and resolutions of a political body
which (apart from any other criticism) admittedly has not attempted
or had an opportunity for a judicial enquiry into the facts.
ln short, Applicants ask this Court for a complete abdication of its
judicial functions.
1 IV, p. 259. No wonder then that Applicants' reference to practicesin the other
African States is also confined to the perspecti"as viewcd by the United Nations''.
Vide caption at IV, pp. 398, 426 and 45r. Section .B
APPLICANTS'ALLEGED NORM OF NON-DISCRIMINATION
OR NON-SEPARATION
r. Reference has been made to the two bases on which Applicants
now present their case in support of their Submissions 3 and 4 1• As
indicated, Applicants in regard to the first basis rely on the existence
in the Mandate of a so-called "international human rights norm of non
discrimination or non-separation" 2• For convenience, Respondent here
repeats the definition of this alleged norm as contained in the Reply:
"... the terms 'non-discrimination' or 'non-separation' are used in
their prevalent and customary sense: stated negatively, the terms
refer to the absence of governmental policies or actions which allot
status, rights, duties, privileges or burdens on the basis of member
ship in a group, class or race rather than on the basis of individual
merit, capacity or potential: stated affirmatively, the terms refer
to governmental policies and actions the objective of which is to
protect equality of opportunity and equal protection of the Jaws to
individual persons as such 2".
If this alleged norm exists as part of the Mandate, it would have the
consequence that Respondent's admitted policies of differentiation would
constitute a contravention of the Mandate even if the Court were to hold
that such policies were intended to enure, and did in fact enure, to the
3
benefit of the population as a whole •Conscquently the sole issue between
the Parties on this aspect of the case is a Iegal one, viz., whether or not
the ;fandatc contains such a norm.
2. Although, as noted, this norm is on occasion said by Applicants
to underlie their whole case regarding alleged violations of Article 2,
paragraph 2, of the Mandate 4,it nevertheless first reared its head in the
Reply. No reference whatever was made to this alleged norm in the
.Memorials, in which the charges and their developmcnt were based on
completely different premises 5. The fact that this argument is thus
raised as an afterthought does not, of course, by itself establish that it
must necessarily be devoid of merit. Consequently Respondent will, in the
succeeding paragraphs, examine Applicants' "norm of non-discrimination
or non-separation" in order to determine what, if any, validity their
contention in that regard may be said to have.
3. Applicants' Submissions 3 and 4, with which the present part of
the Rejoinder is concerned, allege certain violations of Article 2, para
graph 2, of the l\landate. If the "norm of non-discrimination or non
separation" were to be relevant at ail to this subject, it would accordingly
have to satisfy both the following basic requirements, viz.,
1 Vide sec. A, para. 10, supra.
2 IV, p. 493.
3 Vide sec A, para. S. supra.
• Ibid., para.9, supra.
5 Ibid.,paras. 2-8, supra. 120 SOUTH WEST AFRICA
(a) it would have to be a norm of a legal nature, i.e., it would have to
lay down an obligation legally b1nding on Respondent in inter
nationallaw; and
(b) it would have to be embodied in the provisions of Article 2, para
graph 2, of the l\Iandate.
Any norm which fails to comply with both the above requirements cannot
be successfully invoked by Applicants in the present proceedings.
That the norm must be a legal one, is obvious. In the words of Rosenne,
this Court "... is a court of justice and not of ethics or morals or of
1
political expediency. Its function isto 'declare the law' '' .
But equally important is the requirement that no suggested legal norm
can be relied upon in the present proceedings unless it is contained in
Article 2 of the Mandate. This requirement flows not only from the
nature of the charges in fact made by Applicants (i.e., their Submissions
3 and 4 referred to above), but also from the wording of the compro
missory clause within which ail their complaints must fall in order to be
justiciable, and which provides for compulsory jurisdiction only in
respect of disputes "... relating to the interpretation or the application
of the provisions of the Mandate" 2•
4. Applicants appear to recognize the necessity for satisfying the
requirements set out in the preceding paragraph. Indeed, their whole
case under this head rests on the proposition that Article 2, paragraph 2,
of the Mandate is to be interpreted as containing, or being suhject to,
this norm.
Thus they say:
"The existence and virtually universal acceptance of the norm of
non-discrimination or non-separation ... gives sic] a concrete and
objective content to Article 2, paragraph 2, of the .Mandate 3."
(Italics added.)
The "sources" which "comprise the generally accepted norm" are
said to "... impart specific content and objective meaning to Article 2,
paragraph 2, of the l\tandate ... " 3• {Italics added.) Applicants submit
that-
" ... by undertaking a Iegal cornmitment to prornote the welfare of the
inhabitants of South West Africa 'to the utmost', Respondent Ji.as
obligated itself, at the very least, to carry out ... the ... minimum
basic norm of non-discrimination ... 4".(ltalics added.)
The method employed by Applicants in seeking to establish the
existence of the norm is described by them as "applying current standards
in interpreting obligations, such as those embodied in the Mandate" 5•
(Italics addecl.)
As will be demonstrated in the succeeding paragraphs, interpretation
of the Mandate does not produce the result contended for by Applicants,
but the very reverse thereoL
5. ln regard to the concept "interpretation", reference may be made
1 Rosenne, S., The International Court of Justice (1957), p. 62.
2 Art 7 of the Mandate for German South-\Vest Africa.
3 IV, p. 493.
• Ibid .. p.511.
' Ibid., p.513. Vide also pp. 514 and 516. REJOI:-IDER OF SOUTH .-\FRIC.-\. I21
to the following pronouncements of eminent former i\Iembers of this
Court:
"It is the intention of the authors of the legal rule in question
whether it be a contract, a treaty, or a statute-which is the starting
point and the goal of ail interpretation. It is the duty of the judge to
resort to al! available means-including rules of construction-ta
discover the intention of the parties ... 1"
and-
"There is, however, a principle of international law which is truly
universal. lt is given equal recognition in Lima and in London, in
Bogotaand in Belgrade, m Rio and in Rome 2. It is the principle that,
in mattcrs of treaty interpretation, the intention of the parties must
3
prevail ."
6. The intention which is embodied in a document by its author is a
fact which existed at a particular point of time, namely when the docu
ment was drawn up or executed: at other times the author's intention
may or may not have been the same. Since it is the intention (real or
supposed) as embodied in the document, which must be ascertained for
the purpose of interpretation, it follows as a matter of logic that the
document must be interpreted to bear the meaning (and thus express the
intention of its author) which it would have borne as at the stage of its
execution. This rule (called the Principle of Contemporaneity) has been
defi.nedas follows:
"The terms of a treaty must be interpreted according to the
meaning which they possessed, or which would have been attributed
to them, and in the light of current linguistic usage, at the time
when the treaty was originally concluded 4."
The learned author of the above passage points out that the Principle of
Contemporaneity in the interpretation of treaties is really a particu_lar
application of a wider doctrine (the doctrine o[ inter-temporal law) wh1ch
pertains to cases where the rights of States depend on or derive from a
legal situation which existed at some time in the past, or on a treaty
concluded at some comparatively remote date 5.The effect of this doctrine
is stated as follows:
"It can now be regarded as an established principle of internation
al law that in such cases the situation in question must be appraised,
and the treaty interpreted, in the light of the rules of international
law as they existed at the time, and notas they exist today. In other
1 Lauterpacht, H., "Restrictive Interpretation and the Principle of Effectiveness
in the Interpretation of Treaties",B. Y.B.l.L., Vol. XXVI (1949), pp. 48-85 at p. 83.
2 Sed quaere whether in Monrovia and in Addis Ababa-vide para. 29, infra.
3
Asylum. judgment, l.C.J. Reports I950, p. 266 at p. 320, per Judge Read. For a
number of further statements to the sa·me effect by judges of this Court and the
Permanent Court, as well as by recognized scholarly a.uthoritieson international
law, reference may be made to pp. 21-23 of the Oral Proceedings on the Preliminary
Objections herein.
• Fitzmaurice. Sir Gerald, "The Law and Procedure of the International Court of
Justice, 1951-1954; Treaty Interpretation and other Treaty Points", B.Y.B.I.L.,
Vol5 XXXIII (1957). pp. 203-293 at p. 212.
Ibid., p.225 and Fitzmaurice, Sir Gerald, "The Law and Procedure of the Inter
national Court of Justice, 1951-1954: General Principles and Sources of Law",
B. Y.BJ.L., Vol. XXX (1953), pp. 1-70 at p. 5.I22 SOUTH WEST AFRICA
words, it is not perrnissible to import into the legal evaluation of a
previously existing situation, or of an old treaty, doctrines of modern
law that did not exist or were not accepted at the time, and only
resulted from the subsequent development or evolution of interna
tional law 1." (Footnotes omitted.)
The practical importance of this rule in interpreting relatively old
treaties, is exprcssed as follows:
"Not to take account of contemporary practice and circumstanccs,
and to interpret such treaties according to modern concepts, would
often amount to importing into them provisions they nevcr rcally
contained, and imposing on the parties obligations they never
actually assumed 2."
The Principle of Contemporaneity is applied by this Court. Thus, in
the lvioroccocase, it was said:
"The Treaty of 1836 replaced an earlier treaty between the
United States and Morocco which was concluded in 1787. The two
treaties were substantially identical in tcrms and Articles 20 and 2I
are the same in both. Accordingly, in construing the provisions of
Article 20-and, in particular, the expression 'shall have any dispute
with each other'-it is necessaryto take into account the meaning of the
word 'dispute' at the times when the two treaties were concluded 3."
(Italics added.)
In the Minquiers case, Judge Carneiro stated:
"I do not regard the Treaty of Paris as a treaty of frontiers. To do
so would be to fall into the verv error which we have been warned
against: an instrnment must nof be appraised in the light of concepts
which are not contemporaneous with it \" (Italics added.)
More recently the Court said that-
"... the validity of a treatv concluded as long ago as the last
quarter of the eighteenth cenfury ... should not be judged upon the
basis of practices and procedures which have since developed only
gradually 5".
And in his dissenting opinion in the Barcelona Traction case, Judge
Armand-Ugon referred to-
"... two elementary rules of international Iaw, namely that con
cernin!f the interpretation of clear texts and that concerning the
'histoncal' interpretation of treaties according to the meaning they
had at the time when they were concluded ... 6 ".
1 Fitzmaurice, Sir Gerald, "The Law and Procedure of the International Court of
Justice, 1951-1954: General Principles and Sources of Law", B. \'.B.l.L., Vol. XXX
(1963), pp. 1-70 at p. 5.
2 Fitzmaurice, Sir Gerald, "The Law and Procedure of the International Court of
Justice, 1951-1954: Treaty lnterpretation and other Treaty Points", B. Y.B.I.L.,
Vol. XXXI II 1957), pp. 203-293 at p. 226.
3 Rights of Nationals of the United States of America in Morocco, Judgment, I.C.j.
Reports I952, p. 176 at p. 189.
• Minquiers and Ecrehos, Judgment, l.C.J. Reports r953, p.47 at p. 91.
5 Righi of Passage over lndian Territory, Merîts, Judgment, [.C.J. Reports I960,
p. 6 at p. 37.
6 Barcelona Traction, Ught and Power Company, Limitcd, Preliminary Objections,
Judgment, l.C.j.HepoY/S r964, p. 6 at p. 140. REJOI~DER OF SOUTH AFRICA 123
7. The above principles in essence do no more than emphasize certain
considerations of ordinary logic in the application of the fondamental
principle of consent as the essential condition for creating international
treaty obligations. ln the light of their significance, Respondent will,
in the next paragraphs, consider whether any norm as contendcd for by
Applicants was contained in Article 2 of the Mandate as at the date of
its execution, and, if not, whether there was any subsequent insertion of
such norm into the Article. At a later stage attention will be given to
Applicants' contentions which appear to conflict with the above principles
of interpreta tion 1.
S. The States engaged in settling the issues arising from the First
\Vorld \Var were imbued with a philosophy which placed more emphasis
on the rîghts of national groups to self-realization than has been prcvalent
in certain spheres of the international scene in more recent times, when
a right on the part of a majority to impose its values on ail minority
groups within a more-or-less arbitrarily defined tcrritory is often accepted
as inevitab!e, if not indeed desirable. Jmmediately after the First World
\Var it was, however, completely contrary to the spirit of the times to
sanction any measures directed at destroying national or cultural groups
by their forced absorption into larger or stronger groups. This emerges
clearly, inter alia, from some of the pronouncements of President \Vilson.
ln his celebrated Fourteen Points, he included the following aims:
"A readjustment of the frontiers of Italy 'along clearly recogniz
able lines of nationality' (Point 9). 'The freest opportunity of auto
nomous development to the peoples of Austria-Hungary, which it was
not intended to destroy' (Point 10) ... 'undoubted security of life
and an absolutely unmolested opportunity of autonomous devel
opment' to other nationalities now under Turkish rule ... (Point
12) ... 'A free, open-minded, and absolutely impartial adjustment
of all colonial daims ... the interests of the populations concerned
must have equal weight with the equitable daims of the Government
whose title is to be determined' (Point 5) 2." (ltalics added.)
These principles were sumrnarized by him as follows:
"An evident principle runs through [the Fourteen Points] ... It is
the principle of justice to ail peoples and nationalities, and tlieir right
to live on. equal terms of. liberty and safety with one another,
whether they be strong or weak 3." (ltalics added.)
A propos of the above passages, it may in passing be noted that the
word "peoples" means "nations'' or "races" 4and not, as Applicants aver,
"... the individual inhabitants comprising the population" 5.
And on II February 1918 President Wilson laid down four principles
as essential to a permanent peace, the fourth of which reads:
"AU well-defined national elements shall be accorded the utmost
satisfaction that can be accorded them without introducing new or
1 Vide paras. 27-35, infm.
2 Temperley, H. W. V., A History ofthe Peace Conference of Paris (1920), Vol. 1,
p. 193.
3 Ibid.,p. 399.
• Vide Onions, C. T. (Ed.), Shorter Oxford Eng/ish Dictio11ary, 3rd ed. (1959).
p. 1468 .
.!IV, p. 275.124 SOUTH WEST AFRICA
perpetuating old elements of discord and antagonism 1." (ltalics
added.)
g. The principles mentioned in the previous paragraph under!ay much
of the work of the Peace Conference. They resulted in the splitting up of
the empires of the defeated Central Powers (Germany, Austria~Hungary
and the Ottoman Empire) into a number of autonomous States inhabited
in the main by people of one nationality only. The creation of purely
national States was not, however, always feasible, with the consequence
that most of the new States or redelimited defeated powers contained
minorities of foreign extraction. The solution adopted with regard to
these minorities was, in keeping with the times, not to encourage their
assimilation with the majority, but rather to protect thcir existence as
separate groups. This then was the background to the large number of
minorities provisions which were created in the ycars after the First
World \Var. Apart from protecting the individual members of minorities
against oppression or unfair discrimination, the minorities provisions also
maintained the rights of members in regard to matters such as the use of
their language, the establishment of charitable, religions, social and
educational institutions 2 and the provision of facilities by the State.
The provisions regarding the latter aspect have been summarized as
follows:
"In anv town or district where a considerable number of a lin
guistic mÎnority was resident, adequate facilities were to be provided
by the State to ensure that in primary schools, instruction should be
given to the children of such nationals through the medium of their
own language. In addition provisions, were included for the equit
able appropriation of public fonds by the state, municipalitv or
other budget, for the educational, religious or charitable institutions
of minorities in towns and districts where a considerablc proportion
of the residents belonged to racial, religious or linguistic minorities 2."
In general, it has been said that the minorities provisions ensured for
minorities ". . . suitable means for the preservation of their racial
peculiarities, their traditions and their national characteristics" 3•
ro. It is obvious that the principle of equality between majority groups
and minority groups necessarily involved a di/jerentiation in the treatment
of these respective groups, or of their individual members, on the very
basis of membership in such a group. In the words of the Permanent
Court:
"... equality in fact may involve the necessity of different treatment
in order to attain a result which establishes an equilibrium between
different situations.
It is easy to imagine cases in which equality of treatment of the
majority and of the minority, whose situation-and requirements are
different, would result in inequality in fact ... 4''
It is interesting to note the opinion of Sir Hersch Lauterpacht on the
1Temperley, op. cil.p. 195.
2Ganji, M., InternationalProtectio11 of Human Righls (1962), p. 47.
31\!inority Schools in Albania, Advisory Opinion, z935, P.C.!.}. Suies A/B, No.
64, p, 17
~ Ibid.,p. 19. REJOIXDER OF SOUTH AFRICA r25
change in philosophy that has occurred in some quarters in regard to the
protection of the nationality rights of minorities. He says:
"It was a sign of political and moral retrogression in international
relations after the Second World \Var that that aspect of the pro
tection of minorities received less attention than after the termi
nation o[ the First World War. That retrogression found expression,
among others, in the fact that even in the Universal Declaration of
Human Rights-a document which did not impose legal duties
upon any State-no room was found for the positive recognition of
what must be regarded as a basic human right of the members of
national minorities 1."
II. The principle of protecting the identity of national groups, with
differential treatment of various groups where their "situation and
requirements are different" i, was also basic to the mandate system, in
which it came to be combined with the further vital principle of trustee
ship or guardianship for the ''peoples" and "communities'' concerned,
which were considered "not yet able to stand by themselves under the
strenuous conditions of the modern world'' 3• Thus Article 22 (3) of the
Covenant provided that the various mandates should differ, inter alia,
"according to the stage of development of the people". And the same
approach emerges from the specific provisions relative to and contained
inthe various mandates.
In the case of the A Mandates, where the "communities" concerned
had "reached a stage of development where their existence as independent
nations [could] be provisionally recognized" 4, the protection of the
various national groups within the confines of one mandated territory
took the form of measures, similar to the minorities provisions, regarding
the language, educational, religious and social rights of such groups 5.
In the B and C Mandates, the stage of development of the Native
peoples was such as to require for them certain elementary precautions
which were not considered necessarv for the more advanced inhabitants
of the territories concerned. Reference was made in the Counter-.Memorial
to specifrc instances in the l'llandates where special measures applying
only to the Natives were stipulated, e.g., in regard to intoxicating liquor,
militarization, Native land, etc. 6 Reference was also made to comments
by the Permanent Mandates Commission and some of its members
showing their appreciation of the necessity for ditferentiating between
7
various groups • That these comments represented an expression of the
1 Lauterpacht, H., International Law and Hu man Righls (r945), p. 353. By way of
contrast, it may be instructive to note that Pope John XXIII, in his Encyclical
Letter Pacem in Terris, 1963, under the heading "The treatment of minorities"
(pp. 25-26), stressed the "demands of justice" in the treatment of "these lesser
peop1es", particularlyas regards bettermentconcerning "their language, the develop
ment of their natural gifts, their ancestracustoms, and their accomplishments and
endeavours in the economic order", while at the same time admonishing such groups
against an inclination "to exalt beyond due measure anything proper to their own
people".
2 Minority Schools in Albania case, para. 10,supra.
3 Art. 22 of the Covenant of the League of Nations.
~ Ibid., Art.22 (4).
5 The Mandates System--Origin-Principles-Application (1945), pp. 28-3:2.
6 Il, p. 416 (para. 39).
1
Ibid., pp. 417-418.126 SOUTH WEST AFRICA
basic approach of the Commission towards the administration of Native
groups, appears from the questionnaire drawn up by them in 1921 to
assist ~landatories in preparing their annual reports. Article XI of this
questionnaire rcad as follows:
"What are, generally speaking, the measures adopted to ensure
the moral, social and material welfare of the natives? (o1easures to
maintain the interests, rights and customs of the natives, their
1
participation in public service, native tribunats, etc.) ." (Italics
added.)
It was in the nature of things impossible to adopt appropriate "[m]ea
sures to maintain the interests, rights and customs of the natives" in
South West Africa (and in many other mandated territories) without
differentiating between the widely divergent groups that inhabited the
Territory.
12. lt also appears from the facts surrounding the grant of the :\Iandate
to Respondent that the authors of the Mandate must have cxpected the
application of a policy of differentiation in South West Africa. As pointed
out in the Counter-1\lemorial 2, it was generally known that South Africa
applied a policy of differential treatment in respect of the various popu
lation groups within its own borders, and that similar problems in South
West Africa would probably give rise to similar policies there. Indeed,
General Smuts, in an address to the Peace Conference, stressed the
desirability of such a course 3• This fact did not, however, deter the
Powers concerned from granting the Mandate to Respondent. On the
contrary, as has been noted 4, the desirability of applying Respondent's
Native policy to the Territory was one of the factors which influenced at
least some of the delegates to form the opinion that South West Africa
could "be best administered" under the laws of South Africa as an integral
portion of its tcrritory 5• In this regard, reference has been made tito
utterances bv Dr. G. L. Beer, the alterna te United States mernber of the
Commission on ?ilandates, and at that time chief of the colonial diYision
of the American delegation at the Conference, as well as by President
Wilson himself.
13. In accordance with the generally prevalcnt philosophy of main
taining the identity of separate national, linguistic and cultural group5,
and of guardianship and trusteeship of less devcloped pcoples, other
Mandatories also applied policies involving various forms and degrees of
differentiation. This may be seen for instance in the policy of indirect
rule, which has been defined as follows:
"It insists that, if the native authorities are to become not onlv a
part of the machinery of government but a living part of it, the
political energies and ability of the people must be directed to the
preservation and development of their own institutions; the native
authority selected for recognition by government must therefore be
that which according to tribal tradition and usage bas in the past
1The Mandates System-Origin-Principles-Applica/ion (1945), p. 53.
2 II, pp. 4 14-417.
~ Ibid., p. 415.
• Ibid.,p. 4IG.
5 Vide Art. 22 (6) of the Covenant of the League of Nations.
6 Il, p.416 (para. 38). REJOINDER OF SOUTH AFRJCA 127
regulated the affairs of each unit of native society; it is equally
important that it should be that which the people of to-day are
willing to recognize and obey. But the objective is not merely the
utilization of native authorities as instruments of local govemment;
native administration is conceîved as a mcans of trying 'to graft our
higher civilization upon the soundly rooted native stock ... mould
ing it and establîshing it into lines consonant with modern îdeas and
1
higher standards' ."
It will be apparent that this policy of indirect rule necessarily involved
clifferentîation regardîng the various Native groups within a territory,
inter se as well as in relation to the more developecl groups such as Euro
2
peans or Asians. As noted in the Counter-Mcmorial , one fincls that
indirect rule was practised in each of the three Britisch mandated terri
tories, Tanganyika, British Carneroons, and British Togolancl. And,
although not by that name, the principles underlying the policy were
applied also in each of the other three African mandated territories,
Ruanda-Urundi, French Cameroons and French Togoland. Similarly the
policy found application, under its name or by way of its underlying
principles, in a large number of other territories. In keeping with this
approach, there was up to the Second World \Var no participation by
Africans in the central legis1ative and executive organs of any of the
mandated territories, as was also shown in the Counter-;\fomorial 3.
14. In pursuance of, or in addition to, the policy and principles of
indirect rule, diffcrentiation as between rnembers of varions population
groups was practised in other mandated terri tories (and other territories)
in Africa;n a spirit of guardianship, trusteeship and paternalisrn, also in
regard to legal systems. land tenure, residential facilities, aspects of
economic policy, contrai of population monment, education, and other
aspects of government 4.
r5. To summarize, the mandate system, by its very terms as well as its
underlying philosophy, according to the contemplation of its authors, the
policy of the Permanent Mandates Commission, and the practical applica·
tion of the system by Mandatory Powers, permitted and indeed required
differentiation among various ethnie, linguistic or cultural groups, and,
consequently, among their individual members, on the very basis of
membership in such a group.
16. In their Reply Applicants do not attempt to deal with Respond
ent's Submissions summarized in the preceding paragraph, or with the
factual and other material adduced in the Counter-Memorial in support
thereof. They do indeecl have a section headed "League of Nations
Period" , but the aspects referred to there fall vcry far short of establish
ing any norm of non-separation. Indeecl, their references to questions or
comrnents bv the Permanent Mandates Commission or some of its
members, in, so far as they are relevant at ail, dernonstrate that the
Commission was concerned to satisfy itself that there was no un/air
1 Lord Hailey, An African Survey (1938), p. 432, as quoted in 11,p. 436.
2 Ibid.,p. 436.
3 Ibid., p. 433.
• Vide Il, p. 436 (para10) and, e.g., III, pp. 86-89, 201-209, 218-219 and 257-266.
374-375. This feature also appears clearly from the annual reportssubmitted by
Mandatories to the Permanent Mandates Commission.
' IV, pp. 493·497- SOUTH WEST AFRICA
discrimination against Natives, but that dif/erentiation was regarded as
inevitable and desirable.
For instance, the discussion during the Third Session of the Permanent
1
Mandates Commission which is referred to in the Reply ,shows that the
members of the Commission were not opposed to the principle of the
separation between the races, but were concerned to determine whether
Respondent's particular policy was advantageous to the Native popu
lation. Applicants quote only the questions asked by members of the
Commission but not the answers given thereto, nor the opinion finally
expressed by the Commission. That the Commission was satisfied with
the replies given to the questions put by it and quoted by Applicants,
appears from the special observations made by the Commission on the
Administration of South West Africa at the end of the same session. The
Commission expressed the opinion that-
"... the soundness of the views which have prompted the Adminis
tration to adopt a system of segregation of natives in reserves will
become increasingly apparent if there is no doubt that, in the future,
the Administration will have at its disposai sufficient fertile land for
the growing needs of the native population and that the reserves
will be enlarged in proportion to the progressive increase in the
2
population ".
The same applies to other instances of discussions in the Permanent
)Iandates Commission referred to by Applicants 3• In no instance was
there any objection to or questioning of the principle of differentiation,
but measures and policies were scrutinized with a view to determining
their efiect on the interests of the Native population. Responqent may
add that the expression "discriminatory and repressive labor legislation" 3
is Applicants' own, and was not used by the Commission or any of its
members.
The general import of the minorities provisions, which are also relied
upon by Applicants 4has been dealt with above s_In particular it has
been noted that these provisions were concerned with protecting the
group identity of minorities, and that this necessarily involved a mcasure
of differentiation between the majority and minority groups. Article 6
6
of the Albanian agreement was typical of provisions made in this
regard 7.
Fîna!Iy. the Declaration of International Rights of Man of the Institut
de Droit International was, as stated by an authority quote<l by Appli
8
cants, " ... open ... to the objection that it has no juridical value ... " 8
and the same may be said of other matters referred to by Applicants ,
thus ohviating the necessity for enquiring whether they in truth involved
any norm or principle of "non-separation" as defined hy Applicants. As
has been shown, such a norm was certainlv not subscribed to, or applied,
in the mandate system. '
1 IV,p. 495.
1 P.M.C., Min., IV, p. 154. Vide Il,p. 418.
3
IV,p. 495, passage covered by footnotes 3-6.
• Ibid.,pp. 495-496.
' Vide paras. 9-10, supra.
6 IV, p. 496.
1 Vide para. 9, supra.
8 IV, p. 497. Rl!:JOI:-.:DER OF SOUTH AFR!CA
Applicants indeed do not suggest that by the end of the League of
Nations period the asserted "norm of non-discrimination or non-separa
tion" had already inhered in the Mandate.- On the contrary, they concede
that the features referred to by them were "of insi,bstantial juridical
value", and contend merely that they were "forerunners of" (or "fore
1
shadowed") the "norm of official non-discrimination" . {Italics added.}
17. The clear, and apparently admîtted, position then'is that at all
times up to the end of the League of Nations period. the Mandate did not
contain, and was not subject to, any "norm of non-discrimination or
non-separation". If the ilfandate were now to be held to be subject to
such a norm, this situation could have corne about only by the subsequent
insertion of something not originally included in it: in other words, by
some process of amendment.
The force of this consideration is rendered the more apparent by the
feature, demonstrated above, that the Mandate actually prescribed a
policy of differentiation in certain respects, and spccifically contemp!ated
2
it as desirable or at least permissible in others .In truth, therefore, the
introduction of the alleged norm of non-discrimination or non-separation
would involve not only the addition of something not initially included,
but the reversa] of principles and explicit provisions originally contained,
in the Mandate-in other words, an extremely far-reaching amendment.
18. In order to establish any amendment to the Mandate, Applicants
would have to point to some act which would satisfv the follov,ringtwo
basic requirements: •
(a) It must be an act having legal consequences for Respondent, i.e.,
altering Respondent's legal rights and/or duties. This necessariiy
involves that Respondent's consent to such act must be proved.
In the words of Judge Read:
"It is a principle of international law that the parties to a multi
lateral treaty, regardless of their number or importance, cannot
prejudice the legal rights of other States 3."
{b) It is not, however, sufficient for the act to have such legal conse
quences. It must in addition affect Respondent's obligations under
the Mandate. The basic reasons for this requirement have been
referred to above 4•This subject will be considered in more detail
at a later stage 5.
19. The material adduced by Applicants for the purpose of establishing
the existence of the alleged norm of "non-discrimination or non-separa
tion" was not avowedly directed at proving an amendme~! to the
Mandate. As noted above 6, Applicants purport to rely on an mterpre
tation" of the Mandate, and not an amendment thereof. Applicants have
consequently also failed to present any argument with a view to showing
that the requirements set out in the previous paragraph have been
satisfied. Nevertheless, inasmuch as amendment offers the only met,hod
iIV, p. 49ï·
2 Vide paras. 11-15,supra.
3 International Status of South West Africa, Advisory Opinion, l.C.J. Reports r950.
p. 128 at p. 165.
• Vide para. 3,supra.
, Vide para. 23, infra.
6 Vide para.4, supra.130 SOUTH WEST AFRIC.-1.
whereby the content of Respondent's obligation under the l\.Iandate
could conceivably have been altered or added to, Respondent will
consider in the next succeeding paragraphs whether such material could
have had any effect in that regard, deferring treatment of Applicants'
"interpretation" argument to a later stage 1.
20. It will be convenient to commence consideration of the material
adduced by Applicants by eliminating the items which are clearly irrele
vant, whether (a} because they do not purport to have legal force at al!,
or (b) because they are by their mvn terms applicable only to territories
other than South West Africa, or (c) because they are not binding on
Respondent by reason of lack of consent on its part.
One or more of these considerations apply to the following itt>ms:
(i) The Universal Declaration of Human Rights 2 (no consent by
Respondent and, in any cvent, did not crcate legal obligations);
(ii) Draft Declaration of Rights and Duties of States 2 (only a draft);
(iii) Trust Territories Agreements 3 (not applicable to South West
Africa);
(iv) Resolutions of the General Assembly 4 (did not create legal obliga
tions and for the most part not applicable to South West Africa);
(v) Resolutions of the Security Council 5 (apart from anything else,
not applicable to South West Africa);
(vi) Human Rights Covenants 6 (only drafts);
(vii) United Nations Declaration on the Elimination of all forms of
Racial Discrimination 7 (did not create legal obligations);
(viii) International Convention on the Elimination of all Forms of
Racial Discrimination 8 (only a draft);
9
(ix) International Labour Organisation Conventions (not ratified by
Respondent);
(x) Regional Treaties and Declarations 10 (not applicable to South West
Africa).
lnasmuch as all the above items are hy their very nature incapable of
affecting Respondent's rights or obligations in respect of South West
Africa, Respondent will not unnecessarily devote time or space to con
sidering whether they do indeed possess the content ascribed to them by
Applicants .
.21. After-eliminating the items setout in the.previous paragraph, .there
remain for consideration only two legal instruments, to each of which
Respondent was a party, and neither of which is in terms inapplicable to
South West Africa. These instruments are:
(i) The United Nations Charter 11and
1 Vide paras. 27-35, infra.
2 IV, p. 501.
3 Ibid.,pp. 501-502.
~ Ibid., pp. 502-503.
s lbid., pp. 503-504.
6 Ibid., pp. 504-505.
7 Ibid., pp. 505-507.
8
Ibid.,pp. 507-508.
~ Ibid.,pp. 508-509.
10Ibid., pp. 509- 51o.
u Ibid.• pp.497-50 I. REJOINDER OF SOUTH AFRICA 131
. (ii) The International Labour Organisation Constitution 1.
For convcnience, they will be dealt with separatcly.
The United Nations Charter
22. Applicants say:
"The legal obligation of )lember States not to discriminate or
distinguish on the basis of membership in a group or race (whatever
specific human right or freedom may be involved} is set out in
Article 56 of the Charter .''
Article 56 reads:
"All l\lembers pledge themselves to take joint and separate action
in co-operation with the Organisation for the achievement of the
purposes set forth in Article 55."
Article 55 sets forth the purposes to be pursued by the United Nations,
amongst which is included the promotion of:
"... universal respect for, and observance of, human rights and
fondamental freedoms for ail without distinction as to race, sex,
language, or religion''.
Respondent is as desirous as any other Member of the United Nations
to achieve the above-quoted purpose, but does not agree with the
meaning attached to the provision by Applicants. In Respondent's
submission it would be entirely anomalous to suggest that any difjeren
tiation (as distinct from un/air discrimination) between races, sexes,
language groups or religious denominations would involve conflict or
inconsistency with the said Article. Thus, on Applicants' argument, a
:Member of the United Nations would not be entitled to provide special
protection or special public conveniences for wornen, or would not be
entitled to grant separate public holidays for different religious cornmu
nities on thcir respective religious days, or to establish different public
schools for various language groups or even for the two sexes. In the
words of Sir Hersch Lauterpacht (commenting on a provision in a
proposed International Bill of the Rights of ;\fan)-
''... it must be borne in rnind tha t 'equal trea tmen tin ail respects· ...
does not imply identical treatment ... A purely mechanical absence
3
of differentiation may result in inequality and injustice ."
And reference was made above to a similar pronouncement of the
Permanent Court 4•A fortiori the concepts of "universal respect for" and
"observance of" the rights and freedorns spoken of in Article 55 of the
Charter, for everybody without exception, cannot imply a need for an
absolute, rncchanical absence of differentiation.
It is subrnitted, therefore, that the Charter did not purport to establish
any obligation not to differentiate betwcen members of various groups,
but was concerned merely to prevent oppression and unfair discrimi
nation. In so far as Applicants atternpt to establish the proposition that
any differentiation on the basis of membership in a group (irrespective of
whether such differentiation was introduced for the benefit of the group
t IV,p. 508.
2 Ibid., p. 498.
3 Lauterpacht, H .. An International Bill of the Righls of Man (1945), p. r r6.
• Vide para. ro, supra.132 SOUTH WEST AFRICA
conccrned) is contrary to the Mandate, the Charter, therefore, cannot
1
assist them .
23. But there is a further reason why Articles 55 and 56 of the Charter
cannot assist Applicants' contentions. As noted above 2,the present pro
ccedings are brought, and can only be brought, in terms of Article 7 of
the Mandate, which bestows jurisdiction only in respect of disputes
"... relating to the interpretation or application of the provisions of the
Mandate".
The consequence of this isthat it would not be competent for Applicants
to allege and attempt to establish a breach of the Charter-they would
have to go further and show that in some way the tenus of the Charter
fall within the description "the provisions of the ivlandate". There is
clearly nothing in the Charter which suggests that it purported or was
intended to amend, or incorporate something in, the Mandate. On the
contrary, the Charter was by its very nature a general instrument creating
a new international institution and imposing new obligations on its
Members. In this regard, reference may be made to Article ro3 of the
Charter, which is considered below 3.
24. In another part of the Reply 4 Applicants refer also to Article 73
of the Charter conceming non-self-governing territories. They do not,
however, suggest that the said Article contains any provision or norm
precluding differentiation on the basis of race, colour or ethnie group.
Nor could they seriously make such a suggestion, regard being had to
the contents of the Article. On the contrary, at least the possible need
for such differentiation in particular instances appears to be contemplated
in the Article itself, particularly in paragraphs (a) and (b) thereof, which
require administering authorities to observe "due respect for the culture
of the peoples concerned", and to have regard to "the particular cir
cumstances of each territory and its peoples and their varying stages of
5
advancement'' •(Italics added.) For this reason alone-and quite apart
from the questions whether Article 73 was intended to apply to mandated
territories at ail, and, if so, whether it was intended to amend any of the
provisions of the relevant mandate instruments-Applicants' arguments
regarding Article 73 need not be considered in the present context.
Further reference will be made to these arguments below, in dealing
with the confusion on Applicants' part regarding "interpretation" of
Article 2 (2)of the Mandate . 6
The Constitution of the International Labour Organisation
25. The only part of the Constitution of the LLO. which remotely
approaches relevance in the present regard, is a sentence in the Decla
ration Concerning the Aims and Purposes of the International Labour
Organisation. This sentence reads (in so far as material):
1 Indeed, vide para. 24, infra, as Art. 73 of the same Charter, which indicates a
positive contemplation of at least the possible nced for such differentiation in
particular instances.
2 Vide para. 3, supra.
3 Vide para. 32, infra.
• IV, pp. 516-518.
' This is indecd a further reason why Art. 55 of the same Charter could not have
been intended to have the rneaningcontended for by Applicants;vid"para. 22,supra.
6 Vide paras. 30-35, infra. REJOINDER OF SOUTH AFRIC:\ 133
"... ail human beings, irrespective of race, creed, or sex, have the
right to pursue bath their material well-being and their spiritual
development in conditions of ... equal opportunity ... 1".
Even by itseH, the expression "equal oppmtunity" could hardly be
read as "identical opportunity". 1t is a matter of impossibility to pro
vide anything remotely approaching identical opportunities for material
well-being and spiritual development of ail inhabitants of a State-and,
in any event, such identical opportunities would give rise to great
inequality 2•
But the Declaration itself gocs further, and shows an awareness of the
necessity for differential treatment between varions groups. Thus it
provides:
"The Conference affirms that the principles set forth in this
Declaration are fully applicable to ail peoples everywhere and that,
while the manner of their application must be determined with due
regard to the stage of social and economic development reached by each
people, their progressive application to peoples who are still depend
ent, as well as to those who have already achieved self-government,
is amatter of concern to the whole civilised world 3." (1talics added.)
In any event, even if Applicants were to be correct in their construction
of the Declaration, it is quite clear that it does not purport, and was not
intended, to effect an amendment to the Mandate.
26. For the reasons set out in the preceding paragraphs, Respondent
submits that none of the material relied upon by Applicants effected any
amendment to the terms of the Mandate. lndeed, Applicants do not rely
on any amendment, but contend that there exists a legal norm which is
to be introduced into the Mandate by a process of "interpretation".
How a provision in an instrument which, when it came into existence,
not only contemplated but also prescribed differentiation between different
racial groups, can now, without amendment, be "interpreted" as pro
hibiting ail such differentiation, is not comprehensible to Respondent.
Applicants' contention, if taken to its logical conclusion, must have
the effect that even those provisions of the Mandate which specifically
provided for differential treatment of the population groups, must now
.be regarded either as pro non scripto or as having become adapted in
such a manner that they do not involve differential treatment of any of
the population groups. Thus the prohibition against "the supply of
4
intoxicating spirits and beverages to the natives" must now e1ther be
disregarded, so that such spirits and beverages may be supplied to
Natives, or must be regarded as extcnded to all groups, so that such
spirits and beverages may not be supplied to Europeans, Natives or
Coloured persans; and how the interpreter must choose between these
two possibilities. is not explaincd. The position would be the same with
regard to the military clause in Article 4 of the Mandate in so far as it
distinguishes between the training which is permitted respectively for
Natives and non-Natives. In this regard it is, however, instructive to
note that Applicants apply their "norm of non-discrimination or non
separation" only when it suits them. Thus, for example, they interpret
1 Vide IV, p. 508.
3 Vide para.'2'2suj>Ya.
United Xations Treaty Series,Vol. 15 (1948),p. l12.
• Art. 3 of the ;\fandate for German South-West Africa.134 SOUTH WEST AFRICA
Article 4 of the l\landate as pcrmitting the training only of Native troops
1
and as prohibiting the training of non-Native troops . Respondent will
demonstrate the untenability of such an interpretation of Article 4 in a
later part of this Rejoinder. For the present Respondent is concerned
solely with demonstrating the inconsistency with which Applicants
apply their so-called norm, and the anomalies which inhere in the con
tention that such a norm forms part of the ~Iandate.
ln regard to a similar, but more limited contention, i.e., that the pro
visions of the Charter may be invoked to interpret the .Mandate, Responcl
ent said in the Counter-Memorial:
"To assert, however, that a convention concluded in 1945 can be
used as an aid to ascertain the intentions of the parties to a con
vention conduded between different states in 1920, is, in Respond
ent's submission, so obviousl\' absurd as not to warrant serious
consideration 2." •
3
Applicants contest this proposition ,and have now produced a mass
of additional material which came into existence subsequent to the grant
of the Mandate, but on which they nevertheless rely for its "interpreta
tion". ln the process they betray such confusion of thought regarding
basic concepts of law, that Respondent is compelled to devote some space
to elementary principles.
27. Respondent has indicated what it understands by the term "inter
pretation" +, and has demonstrated, with reference to authority, that
the meaning of a document remains immutable (save for possible amend
ment) from creation to extinction 5•
However, and this is where Applicants' confusion sets in, interpretation
is only one of the steps in considering the practîcal effect of a legal docu
ment. After having ascertained the meaning of a document, it is still
necessary to determine what bearing such meaning has on the facts or
circumstances to which it relates. This process is called application. And
although the meaning of a document never changes, its application to
different circumstances might give rise to widely divergent results. As an
example one might posit a commercial treaty concluded in 1800 and
granting certain rights in respect of "all British colonies and possessions''.
Although the meaning or interpretation of the treaty would not have
changed in the years between 1800 and 1964, its application to the facts
would have produced widely different results in, say, 1800, 1900 and 1960.
The distinction between interpretation and application of broadly
formulated provisions of the kind under consideration, may be further
illustrated by reference to a separate opinion of Sir Percy"Spender con
cerning certain provisions of the United Nations Charter 6•The learned
Judge said:
"A general rule is that words used in a treaty should be read as
having the meaning they bore therein when it came into existence.
But this meaning must be consistent with the purposes sought to
1 IV,pp. 553-554 and 565-567.
2
l Vide.IV,.p. 512.
• Vide para. 5, supra.
6 Vide para. 6,supra.
Certain Expenses of the United Nations (Article r7, paragraph z, of the Charter),
Advisory Opinion, l.C.J. Reports r96z, p. 151 atp. 182. REJOINDER OF SOUTH AFRICA I35
be achieved. Where, as in the case of the Charter, the purposes are
directed to saving succccding generntions in an indefinite future
from the scourgc of war, to advancing the welfare and dignity of
man, and establishing and maintaining peace undcr international
justice for ail time, the general rule above stated does not mean
that the words in the Charter can only comprehend such situations
and contingencies and manifestations of subject-matter as were with
in the minds of the framers of the Charter ... No comparable human
instrument in 1945 or today could provide against all the contin
gencies that the future should hold. All that the framers of the
Charter reasonably could do was to set forth the purposes the or
ganization set up should seek to achieve, establish the organs to
accomplish these purposes and confer upon these organs powers in
general terms. Yet these general terms, unfettered by man's in
capacity to foretell the future, may be sufficient to meet the thrusts
of a changing world.
The nature of the authority granted by the Charter to each of its organs
does not change with lime. The ambit or scope of the authority conferred
may nonetheless comprehend ever changing circumstances and con
ditions and embrace, as history unfolds itself, new problems and situa
tions which were not and could not have been envisaged when the Charter
came into being. The Charter must accordingly be interpreted, whilst
in no way deforming or dislocating its language, so that the authority
conferred upon the Organization and its various organs may attach
itself to new and unanticipated situations and events ... The question
whether an unforeseen, or extraordinary, or abnormal devetopment or
situation, or malter relating thereto, falls within the authorxty accorded
to any of the organs of the Organization finds its answer in discharging
the essential task of all interpretation-ascertaining the meaning of the
relevant Charter provision in ils context. The meaning of the text will
be illuminated by the stated pu1poses to achieve which the terms
of the Charter were drafted .' (Italics added.) ,
28. Applying these elementary principles to the Mandate, one finds
on interpretation that the Mandatory was always obliged to promote the
development of the Territory and its inhabitants 2•This obligation was
immutablyfixC'd (save for possible amendment) when Respondent assumed
the Mandate. But the nature of the obligation thus interpreted is such
that Respondent must necessarily have regard to changed or changing
circumstances in carrying out the said obligation 2•In other words, in the
application of the terms of the Mandate to the circumstances of I960, a
different practical effect may be reached than would have resulted from a
similar application in 1920. Failure to adapt to new circumstances might
result in a factual set-back or impediment of that which Respondent is
obliged to promote; and this might in a given case conceivably be so
indisputable and obvious as to give rise to an inference of an arbitrary or
mala fide attitude on the part of the Mandatory. Such a conclusion would,
however, result, not from a changed interpretation of the Mandate, but
from the fact that the Mandate, whenever interpreted, involves a duty
on the iVl.andatory's part to give consideration to ail relevant circum-'
1 Certain Expenses of the United Na/ions (Article z7, paragraphz, of the Charter),
AdvisoryOpinicm, I.C.J. Reports I96z,pp. 186-187.
2 This is self-evidenbut videauthoritiesquoted by Applicants at IV, pp. 514-516.136 SOUTH WEST AFRICA
stances when determining policy, as a necessary component of its obliga
tion to pursue the prescribed objectives in good faith. Amongst the
circumstances to be thus considered, are the general philosophical views
prevalent in the world, and their impact on the inhabitants of the Terri
tory. Respondent has demonstrated the consideration which has been
given to these factors 1, and says that it has in no way failed in its duty
in this respect. The issues in that regard, however, fall to be considered
under the second branch of the case, where Applicants allege that Re
spondent's policy is in fact a deliberately oppressive one. For present
purposes it is sufficient to emphasize that current views, standards or
nonns, whether of a moral or even of a legal nature, cannot by any process
of interpretation alter, add to, or vary Respondent's obligations under
the Mandate. For that purpose, amendment would be required.
29. Itwill be seen that a confusion between the concepts of interpreta
tion and application underlies and invalidates Applicants' whole argu
ment relating to the topic under discussion. On occasion they seem to
appreciate the distinction. Thus they say:
"The Mandate instrument sharcs, in common with all typical
charters, constitutions and basic ordinances, generality in formula
2
tion and dynamic flexibility in application ." (Italics added.)
The distinction between formulation and application in this passage
seems to Respondent to be sound, as also the statement that where
powers and fonctions are defined in general terms, the application thereof
would be characterized by "dynamic flexibility" 3•
However, in the very next sentence Applicants say:
"The obligations created by Article 22 of the Covenant and the
Mandate must, accordingJv. be construed in the Iight of current
standards, as determined by contemporary knowledge, conditions
4
and requirements ." (Italics added.)
And later they refer to the-
"... nècessity to interpret broadly-formulated, constitutional-type
obligations, on the basis of current standards, rather than on the
basis of the presumed 'intentions of the parties' at the time the obliga
tions were conferred and acceptecl 5". (ltalics added.)
The authorities relied upon by them for the proposition regarding
interpretation do not, however, go beyond showing that the application
of broadly formulated provisions to different circumstances gives rise to
different results. This is illustrated, inter alia, by the quotation from
Brown v. Board of Education in the Reply:
"We must consider public education in the light of its full devetop
ment and its present place in Amcrican life throughout the Nation.
Only in this way can it be determined if segregation in public schools
deprives these plaintiffs of the equal protection of the laws 4."
This is a self-evident proposition. But the italicized words demonstrate
1 In a part of the Counter-Memorial, viz., Il, pp. 457-488, the exact significance
of which is apparently misunderstood by Applicants-vide IV, pp. 512-515.
2 IV, pp. 515-516.
s lndeed, this propositionmigbt be quoted in support of Respondent's argument
regarding the interpretationof Article 2-vide Part III, sec. C. paras. 20-24, i1ifra.
• IV, p. 514.
s Ibid.,p. 515. REJOIXDER OF SOUTH AFRICA 137
clcarly that what may have changed, in the Court's contemplation, since
the previous ruling on the subject, wcrc circumstances concerning"public
education" in America, i.e., the subject-matter to which the constitu
tional provision in question was to be apptied, and not the content or
interpretation of the constitutional provision its_elf, requiring "equal
protection of the laws". Consequently, in accordance with the reasons
set out above, the proposition does not assist Applicants in their attempt
to alter the meaning of Article 2 of the Mandate.
30. Applicants' confusion between the concepts of interpretation,
application and amendment, is furthcr illustrated by their contention
that Article 2 of the Mandate should be interpreted in the light of Article
73 of the Charter 1• At the outset it must be noted in this regard that,
apart from its logical defects, which will be pointed out hercafter, Ap
plicants' said contention appears prima facie to represent an exercise
in utter futility, in that Applicants do not indicate in what way reference
to Article 73 assists in interpreting Article 2. or what effect reference to
Article 73 has in ascribing a meaning to Article 2. They say in this regard:
"It is not necessary, for the purposes of the presen t Proceedings.
to consider in detail the scopc of Respondent's obligations under
Article 73 of the Charter, inasmuch as Applicants' Submissions do
not allege violations by Respondent of such obligations 2."
Consequently Applicants merely associate themselves with a suggestion
by Respondent that the obligations under Article 73 ''may bein advance
of what was current thought in 1920" 3 (italics added) without making
any submissions regarding the specific respects in which, or the extent to
which, such obligations are alleged to be in advance of what was current
thought in 1920. It is to be noted, however, that in their attempt to
replace "1920 standards" with undefined "Charter (Article 73) stand-·
2
ards" , Applicants are concerned not so much with the Article as
framed, but with the Article read-
"... in the light of the frequent application and interpretation
[thereofJ by United Nations resolutions and actions since the incep
3
tion of the Organization ". (Footnotes omitted.)
In the result, the impression is gained that by a spurious attempt to
introduce unnamed standards into the Mandate "in so far as the provi
sions of Article 73 of the Charter may be in advance of what was current
thought in 1920" 2, Applicants in truth seek to cstablish some basis of
relevance in the present proceedings for United Nations resolutions and
actions regarding non-self-goveming territories, which resolutions and
actions were themselves often based on very questionable interpretations
and applications of Article 73. Applicants' argument would then amount
to a contention that questionable interpretations by some States, of a
convention concluded in 1945 among other States, must be given decisive
weight in interpreting (i.e., ascertaining the intentions of the authors of)
instruments executed in 1920 by yet a still different group of States. This
argument is even more palpably absurd than that propounded in the
Memorials with reference to the in pari materia rule "'·However, since it
1 IV, pp. 516-518.
2 Ibid., p. 517.
3 Ibid.,p. 516.
• Vide Il, p.395 and IV, p.5r2.138 SOUTH WEST AFRJCA
appears that Applicants are advancing this contention in earnest, Re
spondent will in the succeeding paragraphs analyse it in some more detail.
31. Applicants' argument regarding Article 73 may be rendered as
follows:
(a) Article 73 of the Charter embodies standards higher than those
which applied under the Mandate 1.
(b) If Article 73 is in law applicable to mandated territories, its provi
in tenns of Article 103 of the Charter, prevail over the
sions wou1d, 2
provisions of the )fandate •
(c) IfArticle 73 is not in law applicable to mandated territories, it must
nevertheless be deemed to be applicable, because:
(i) in its resolution of 18 April 1946, the League of Nations Assembly
noted that Chapter XI of the Charter (of which Article 73 forms
a part) embodied principles "corresponding to those declarcd
in Article 22 of the Covenant of the League" 2;
(ii)if Article 73 were not deemed applicable, "[a]pplication of the
standard's of 1920 to the interpretation of the Mandate, could,
in principle, result in a finding that the standards of Article 73
2
had not been m3t" . Such a result would be "anomalous and
intolerable" • It is accordingly "logically imperative" to read
the Mandate as if incorporating the standards laid down by
Article 73 4.
32. The first basis for consideration of these arguments is the assump
tion that Article 73 applies to mandated territories not placed under
trusteeship.
Article 103 of the Charter reads as follows:
"In the event of a conflict between the obligations of the members
of the United Nations under the present Charter and their obligations
under any other international agreement, their obligations under the
present Charter shaII prevail."
The effect of this Article would be that Article 73, if applicable ta
mandated territories, would prevail over any inconsistent provisions of
the Covenant, or the Mandate (that is, assuming that the Mandate is an
"international agreement"). Such inconsistent provisions of the Covenant
or the Mandate would then fall away, leaving Article 73 of full toi:ce and
effect. Article 103 would, however, not have the effect of amendmg the
Mandate by substituting the provisions of Article 73 for any inconsistent
provisions in the Mandate.
Sincc the present action is brought in tenns of the compromissorv
clause in Article 7 of the Mandate, it would accordingly not avail Applf
cants ta show that Article 73 of the Charter (which is not covered by the
compromissory clause) is applicable, and not Article 2 of the Mandate
(which, it is assumed for present purposes, is so covered).
33. It then remains to consider the arguments presented by Applicants
on the assumption that Article 73 is not applicable to mandatcd terri
tories. On this basis they rely firstly on the League resolution o[ 18
April 1946.
t IV, p.496.
2 Ibid., p. 517.
3 Ibid.,p. 5I6.
• Ibid.,p. 518. REJOl:-:DER OF SOUTH AFRICA
139
This resolution noted:
"... that Chapters XI, XII, and XIII of the Charter ... embody
principles corresponding to those declared in Article 22 of the Cove
nant of the League ... 1". (Italics added.)
The word "principles" is not synonymous with "detailed provisions" 2
and "corresponding" docs not mean "identical". The League resolution
consequently did not purport to convey that Article 2:2must be inter
preted as containing al! the provisions of Chapters XI, XII and Xlll of
the Charter, and such a suggestion would indeed have been absurd. The
resolution did not purport to "note" any more than that the basic
principles underlying the said Chapters of the Charter are similar to those
found in Article 22 of the Covenant. There is consequently also no basis
for suggesting that the resolution was intended to effect an amendment
to the ;\landate to bring it into accord with Chapters XI, XII and XIII of
the Charter, or even with the "principles" of such Chapters.
34. Applicants' next argument is that, even if Article 73 is not in law
applicable to mandates, it would nevertheless be "anomalous and intoler
able" not to interpret the Mandate as containing the samc standards as
those set out in Article 73 3• Respondent does not, however, appreciate
whv it is ''logically imperative" 3 to avoid a conclusion that two instru
ments executed a quarter of a century apart, and relating to different
types of territories, prescribe different standards. The mere fact that
Applicants consider such a result to be undesirable, would not entitle
this Court to disregard the most basic principles of law with a vicw to
remedying such a situation. ln this regard, reference may be made to the
major principle of law enunciated by Judges Spender and Fitzmaurice:
"The principle that a Court of law cannot correct the past errors
or omissions of the parties, and that it is not the province of a Court
to place some of the parties in the same position as they would have
been in if they had taken action they could have taken, but did not
take, and even deliberately avoided taking "·"
35. The above discussion regarding Article 73 is offered merely in
further demonstration of Applicants' confusion between interpretation
and application. In truth the standards set by Article 73 (i.e., as far as
its relevant paragraphs (a) and (b) are concerned) are in Respondent's
contention not substantially different from those laid clown by the Man
date, as will be evident from the qualifications inherent in them, referred
to and emphasized by Respondent in the Counter-M.emorial 5. Applicants
have not directly replied to Respondent's reference to the significance of
the qualifications and have in fact evaded this point in the manner in
6
dicated above • Respondent also contended that its policies, as ex
pounded in the Counter-Memorial, were in no way in conflict with, but
were indeed aimed at the attainment of objectives as are set out in the
relevant paragraphs (a) and (b) of Article 73, due regard being had to
' IV,p. 517.
z As Applicants appear to concedc-vide IV, p. 51S: "Even ifArticle 73 were
not applicable in ail its particularto mandated territories... "
3 Vide para. 31 (c) (ii), supt'a.
• South West Ajrica, Preliminary Objections, ]udgment, I.C.J. Reports z962,
p. 319 at p. 468.
5 Vide, e.g.,Il,p.396.
6 l'ide para. 30,supra, and sec. C, paras. ~6, 30 and 42, infra. SOUTH WEST AFRICA
1
the aforesaid qualifications , and Respondent abides by this contention. 2
Applicants have not attempted to controvert this contention per se .
This aspect of the matter is, however, concerned with the second part of
Applicants' case regarding Submissions 3 and 4, and is therefore not
further discussed here.
36. The only basis upon which interpretation of the relevant_texts could
produce a result whereby current norms govern the content of the ri.-Tan
date, would be if Article 2 was ab initio subject to some qualification
such as:
"The l\fandatory shall, when exercising its full power of adminis
tration and legislation, give effect to such standards or norms a,c:
may at the time of such exercise be generally applied by other
States."
Inasmuch as no such qualification was included in the express terms oi
the mandate instrument, Applicants would then have to contend that
it must be read into the Mandate as a necessary implication. It is, how
ever, unthinkable that the authors of the Mandate (which included several
11andatories 3) would have decided upon, and that the i\iandatories
would have consented to, the imposition of an obligation of such un
certain content, posing so many diffi.culties of application and giving rise
to the possibility of interminable dispute. Since Applicants do not rely
on such an implication, and no material has been adcluced to suggest the
existence thereof, Respondent wiil not devote any further considerntion
thereto.
37. In addition to relying on the introduction of the alleged norm into
the Mandate by a process of interpretation, Applicants suggest somewhat
tentatively that such a norrn may by itself have legal validity as "a rule
of customary international law", or as being one of "the general principles
of law recognized by civilized nations" 4.
The question whether this is so or not, really falls outE>idethe purview
of the present case, as this Court does not possess jurisdiction to deter
mine whether Respondent has contravened objective principles of inter
national law existing independently of the provisions of the Mandate 5•
In any event, however, Respondent submits that neither of the said
sources of law has given rise to any "norm of non-discrimination or non
separation" as defined by Applicants, which would entai! that any dif
ferentiation on the basis of group membership, however beneficial such
differentiation might be in intent or application, would be illegal 0• And
furthermore, even ifit might be possible to say that such a norm has
evolved over the past years in international society generally or as be
tween certain States, it would not be binding on Respondent inasmuch
as the basic principles of international law involve an effect which has
been summarized as follows:
"... if (i) at some time in the past ... any other 'dissenting' State
had in fact, under international law as it then stood, enjoyed rights
1
2 Vide Counter-M:emorial, !oc. cit., also li, pp. 459-460 (paras. 5-7).
I.e., as distincfrom raising issues regarding factual aspects of Respondent's
pol3cies. Vide sec. C, paras. 26, 30 and 42, in/ra.
Vide Part Il, Chap. lH, para. 42,supra.
• IV,pp. 510 and 519.
s Vide para. 3,supYa.
6 Vide sec. A, para, 8,supra. REJOINDER OF SOUTH AFRICA
wider than those conferred by international law in its present forrn,
and (ii)on the emergence of a new and more restrictive rule, had
openly and consistently made known its dissent, at the time when
the new rule came, or was in process of coming, into otherwise
general acceptance, then the dissenting State could daim exemption
from the rule even though it was binding on the community generally
and had become a general rule of international law 1".
This prindple was applied in the Fisheries case, where the Court said:
"In any event the ten-mile rule would appear to be inapplicable
as against Norway inasmuch as she has always opposed any attempt
to apply it to the Norwegian coast ."
It is quite clear from the record herein that Respondent has openly and
consistently rejected any suggestion that any rule of international law
prohibits the application of a policy of differentiation in South West
Africa or South Africa itself.
Conclusion
38. For the reasons set out herein, it is submitted that Applicants have
failed to establish that their alleged norm satisfies either of the two
requirements which are essential for present purposes 3 :i.e., they have
notshown-
(a) that any norm prohibiting a policy of differentiation exists in inter
national law, either generally, or as legally binding on Respondent;
or, inany event,
(b) that any such norm is embodied in Article 2 of the Mandate.
On the contrary, Respondent respectfully submits that differentiation
on the basis of ethnie group is legally permissible in terms of the Mandate,
and does not per se constitute a violation of the provisions thereof.
1
Fitzmamice, Sir Gerald, '"The Law and Procedure of the International Court of
Justice, 1951-r954: General Principles and Sources of Law", B. Y.B.l.L., Vol. XXX
(r953), pp. I-ïO at p. 25.
2 Fisheries, ]udgment. I.C.J. Reports 1951, p. 16 at p. qr. Vide also Fitzmaurice,
Sir Gerald, op. cil.p. 26.
3 Vide para. 3, supra. Section C
THE LEGALBASIS OF APPLICANTS'CHARGETHAT
RESPONDENT'SPOLICIESAND CONDUCTIN FACTFAIL TO
PROMOTEWELL-BEINGAND PROGRESS
A. Introductory
1. In section B, supra, Respondent has demonstrated, it is submitted
conclusively, that no "norm of non-discrimination or non-separation", as
formulated by Applicants, can be read into the provisions of the :Mandate
or is otherwise binding on Respondent. If, as is stated in somc parts of
the Reply, Applicants' Submissions 3 and 4 are bath based on the exist
ence of this norm 1, then the conclusion reached in the said section B
would by itsclf dispose of this part of the case. However, as has been
noted 1, it is not quite clear that Applicants' said statements are to be
taken at their face value, particularly since Applicants still repeatedly
advance the contention that Respondent's policy is directed at the
unauthorized object of oppressing the Native inhabitants of the Territory
for the benefit of the Europeans, and they enter into lengthy discussion
and present a mass of material in attempted substantiation thereof.
In the result Respondent is obliged to give consideration also to the
question whether any legal basis, other than the alleged "norm of non
discrimination or non-separation", exists for a judicial determination of
alleged breaches of Article 2, paragraph 2, of the i\1andate, and, if so,
what its nature is. The present Chapter will be devoted to this purpose.
2. In the Counter-i\iemorial, Respondent's attitude to the question
posed in the prcceding paragraph was a twofold one. In the first place,
Respondent contended that there existed no basis for a judicial determi
nation of an alleged breach of Article 2, paragraph 2, of the .Mandate,
inasmuch as the Permanent Court of International Justice was not
intended to have jurisdiction to entertain such matters, which fe\l to be
considered by the administrative supervisory organs, viz., the Council of
the League assisted by the Permanent Mandates Commission 2. If this
contention is upheld then it puts an end to Applicants' charges rcgarding
violations by Respondent of its obligations under Article 2, paragraph 2,
of the Mandate. Only if this contention is rejected will it be necessary to
give consideration to Respondent's second contention which is rcstated
as follows: Article 2, paragraph 2, read in the light of the Covenant,
required Respondent to use its "full power of administration ancl legis
lation" for the purpose of promoting to the utmost the material and
moral well-being and the social progress of the inhabitants of the Tcrri
tory. The consequence of this was, in Respondent's submission, that the
particular method to be employed towards achieving this purpose was
left to Respondent's discretion, and that legislative or administrative
action could therefore violate Article 2, paragraph 2, only if actuated by
a motive or intent other than one to achieve such purpose 3.
1 Vide sec. A, para. 9, supra.
z Vide Part II, Chap. II, para.13, Stipra.
3 Ibid.,para.~14, supra. Il, pp. 384-392. REJOIXDER OF SOUTH AFRICA 143
3. Although the arguments summarized in the preceding paragraph
were, it is submitted, advanced with clarity and precision in the Counter
i\iemorial, Applicants do not deal pertinently with them in the Reply.
Instead, Applicants commence by saying:
"As Applicants understand these arguments and their underlying
premiscs, both cxplicit and implicit, thcy may fairly be summ1rized
for clarity of reply,by the six following propositions ... ",
and they then set out certain propositions which eithcr do not reflect
arguments ever propounded by Respondent, or else deal in a disjointed
and unco-ordinated way with certain limited aspects of Respondent's
case. As in some previous parts of this Rejoinder, it will consequently be
more convenicnt to adhere to the arrangement employed in the Counter
i.\lemorial. This approach has the advantage of providing a clear demon
stration of which of Respondent's contentions arc contested by Appli
cants and, if so, on what grounds-matters which tend to become lost
in obscurity as a result of Applicants' method of replying to propositions
formulated by thcmselves rather than to Responclcnt's arguments.
It is proposed thereforc to consider the material adduced by Applicants
in two stages, dealing first with the question whether the authors of the
i.\fandate intcnded to bestow jurisdiction on the Permanent Court in
respect of allcged violations of Article 2, paragraph 2, of the i.\Iandate,
and thereafter with the Iegal basis on which such jurisdiction, if it exists,
could be exercised.
B. Were the Obligations under Article 2, Paragraph 2, Intended to Be
Justiciable?
4. At the risk of being regarded unnecessarily repetitive, but by reason
of certain apparent misapprehensions or misrepresentations on Appli
cants' part, Rcspondent wishes once more to emphasize the true nature
of its contention in the present regard. In the Counter-:111emorial,this
contention was clearly and explicitly formulated, e.g., in the following
passage:
"... attention has been drawn to the widc and general provisions of
Article 2. In this respect it has been submitted that it is foreign to the
esscntial nature and purpose of a Court of Law to enterlain matters
of a pure\y political or technical nature, such as might well arise if
the Court were required to adjudicate on disputes arising from an
alleged breach of the obligation to '... promote to the utmost the
material and moral well-being and the social progress of the inhabit
ants of the territorv .... For the reasons set out, it was submitted
that the au/hors of ihe Mandate did not intend the Court to have juris
diction to entertain such disputes, the Permanent :Mandates Com
and the Council of the League being the technical and
mission
political bodie2 spccially charged with the function of dealing with
such matters ." (ltalics added and footnotes omitted.)
And in anothcr part of the Counter-Memorial, to which rcference was
made in the above passage, Respondent said:
----- "Respondcnt is mindful of the fact that lcgal questions are oftcn
1 IV, p.4ï7.
11, PP· 384-385. SOUTH WEST AFRICA
encompassed or intertwined with political issues, and that the,jnris
diction of the Court, if otherwise established, would not for that reason
be ousted. It is, however, foreign to the essential nature and purpose
of the Court to entertain matters of a purely political character, and
itis unlikely that the authors of the Mandate intended that the Court
should perform such a function in the Mandate System-if they
intended that the Court should, one would have expected very
1
explicit language to that effect ." (Italics added and footnotes
omitted.)
However, in the six "propositions" formulated by Applicants "for
clarity of reply'', the above contention shines by its absence. The "pro
position{' which do deal with the consequences of, or inferences to be
drawn from, the nature of the obligations embodied in Article 2, para
graph 2, of the Mandate, do not cover Respondent's true contention,
as will be shown in the succeeding paragraphs.
5. The first proposition formulated by Applicants which may be
relevant for present purposes, is their Proposit10n No. 1, which attributes
to Respondent the following contention:
"The Mandate assertedly creates no legal obligations justiciable as
between Applicants and Respondent, in terms of the compromissory
clause contained in Article 7 of the Mandate 2."
Although obscurely worded, this passage apparently refers to Re
spondent's contention that this Court does not possess jurisdiction in
respect of the present proceedings -as3 distinct from the alleged violation
of Article 2, paragraph 2, only-a contention which was raised in the
Preliminary Objections, and certain aspects of which were re-argued in
the Counter-)1emorial \ Respondent's contention in this regard turned
largely on the interpretation of the compromissory clause in Article 7,
and on the question whether it had survived the dissolution of the League
of Nations and the Permanent Court 5• It is not clear whether Applicants'
Proposition No. ris intended to encompass the whole of this argument.
Their rcfercnce to the "e!fectiveness and scope of the compromissory
clause" 6,and their cross reference to IV, pages 520-546 suggest that they
do. If that is so, it is completely erroneous to represent the argument
as being that "the Mandate assertedly creates no legal obligations ii1sti
ciable as between Applicants and Rcspondent". Firstly, Respondent
never contended that any of the obligations prescribed in the Mandate
were not legal obligations 7•Secondly, Respondent did not contend that
none of the Mandate obligations was rendered justiciable between
Applicants and Respondent: the contention was confined to such obliga
tions as did not affect the interests of the Applicant States or their
nationals 8. Thirdly, Respondent's argument in question was not con
cemed only with the situation as at the creation of the l\fandate obliga-
1 11,p. 184.
, IV, p. 477·
3 Vide IV, p. 478. This is of course not the same as saying that the MandtLte
cr4ated "nn legal obligations justiciable between Applicants and Respondent".
Vide Il, Book II, Chap. V B.
' Ibid., para.t, p. 175.
6 IV, p. 478. (ltalicadded.)
1 Vide Part Il, Chap. ll,paras. 11-14, supra, and para. 6, infra.
8 Vide Il,pp. 175-193. REJOI~DER OF SOUTH AFRICA 145
tions, but· also with the question whether any jurisdiction which may
have been created, survived the events of 1945-1946. Furthermore, it is
difficult to sec what relevance these topics have to the present argument,
which is concerned with the interpretation and effect only of Article 2,
paragraph 2, of the Mandate-matters which are dealt with by Applicants
in purported reply to Propositions Nos. z and 3, as attributed by them to
Respondent 1•lt will therefore suffice to say that the questions relating to
the scope, purpose and continuing effect (if any) of the compromissory
clause have already been dealt with 2•
6. Proposition No. 1 having thus been eliminated, the rest of the
present argument will be devoted largely to contentions raised by Appli
cants in reply to Propositions Nos. 2 and 3. The first point to be noted is
that neither of these Propositions correctly reflects Respondent's con
tention now under consideration.
In Proposition No. 2 the following contention is attributed to Respond
ent:
"Article 2, paragraph 2, does not ... create or embody obligations
of a legal nature, but is asserted!y a merely political or moral
exhortation; this argument Respondent seeks to reinforce by
reference to the generality of the terms of the Article 1."
3
As has been shown ,this proposition isa complete perversion of Respond
cnt's argument. In fact, Respondent has never said, and does not now
say, that Article 2, paragraph 2, of the l\1andate did not create or embody
obligations of a legal nature 3•
The part of Applicants' Proposition No. 3 which is relevant for present
purposes 4, attributes to Respondent a contention that any legal obliga
tion embodied in Article 2, is "... of a political character which should be
le/t for detennination by a political body rather than by a Court ... " 1 .
(Italics added.) The italicized portion in this quotation does not merely
reflect an inaccurate use of words: Applicants seriously contend that an
argument in that form was propounded by Respondent. Thus they refer
to Respondent's "... proposition that the Court should leave ta a 'political
body' determination of the obligation stated in Article 2, paragraph 2,
of the l\1andate ... " 5 (italics added), to Respondent's "... contention
that the obligations of Article 2, paragraph 2, ... are not appropria te for
6
judicial decision, but should be remitted to 'political' bodies ... " (italics
added), and to its "... contention that the Court should leave to a
political body detennination of the 'social, ethnological, economic and
political considerations' underlying Article 2, paragraph 2 ... " 7
(Italics added and footnotes omitted.)
'IV, p.477·
2 Vide Part I1, Chap. IV B, supra.
3 Ibid., Chap. I1, paras. 1 r-14,supra.
• I.e., the first partthe second part concerns Respondent's alternative contention
regarding good faith as the criterion for adjudication, as is considered in paras.20
et seq., infra.
s IV, p. 485.
6
1 Ibid., p. 490.
Ibid., p. 491. SOUTH WEST AFRICA
146
It need hardly be stated that no contention to this effect was ever
advanced by Respondent i.
7. In the result, the above-mentioned Propositions "which Applicants
have sought to formulate, in aid of a clear reply to Respondent's legal
analysis of Article 2, paragraph 2" 2,do not only includc contentions in
fact not advanced by Respondent, but they leave out the submission
actually made. Thus Proposition No. 2 ascribes to Respondent an argu
ment only that the ob1igations under Article 2, paragraph 2,were not of a
legal nature, whereas Proposition No. 3 is based on the prcmise that
such obligations were justiciable. Somewhere in betwecn the two Pro
positions Applicants seem to have mislaid Respondcnt's truc contention,
viz., that although the obligations under the Article were of a legal nature,
the Court was not intended to possess jurisdiction in regard to alleged
breachesthereof. ·
This failure even to mention Respondent's actual contention is rcflected
in the positive averments made by Applicants in answeï to the above
Propositions. Thus in answer to Proposition No. 2 they seek to show-
"[t]hat the Mandates, including the Mandate for South West Africa,
were conceived and executed as Iegally binding instruments-as a
whole and in each of their parts ... 3".
This is, of course, undisputed 4.
As regards Proposition No. 3, thcir argument is directed at demon-
strating that-
"... a court .•. ventures onto [economic, political or sociological]
terrains whenever the judicial duty is engaged to adjudicate upon
legal rights and interests of litigants with standing to invoke the
competence of the Court 2",
and that "Courts ... do not shun the judicial duty in the face of technical,
5
political or other complexities'' •
Once more, this may be conceded and is not in issue 6; but it a:,;sumes
what has to be established, viz., that the authors of the Mandate intended
to provide, and consequently did provide, for "competence of the Court"
or a "judicial duty" in regard to alleged violations of Article 2, paragraph
2, of the 1Iandate. No argument is specifically directed by Applicants to
this, the vital aspect of the present enquiry. However, some of the
arguments used by them in respect of Propositions Nos.. 2 and 3 m~y
nevertheless be relevant also to the rcal question at issue, and wdl
accordingly be dealt with on that basis.
8. Whether the Court possessed jurisdiction in respect of alleged
breaches of Article 2, paragraph 2,of the Mandate, depcnds on the correct
intcrpretation of the Mandate, and thus ultimately on the intent~ons of
its authors 7 •This intention is to be determined in the light of c1rcum
stances existing, and conceptions prevalent, as at the time of creation of
' For the contention actually advanced by Respondent, vide para. 4, supra.
2 IV, p. 491.
3 Ibid.,p. 480.
• Vide Part Il, Chap. Il.para. 11, supra.
5 Ibid., p. 492.
6 Vide second passage from Counter-!11emorial, quoted in para. 4, supra.
1 Vide sec.B, para. 5, supra. REJOINDER OF SOUTH AFRICA 147
the ;',,fandate 1.For the reasons summarized above 2, Respondent sub
mitted in its Counter-Memorial that the authors of the Mandate did not
intcnd to bestow such jurisdiction on the Permanent Court. By reason
of the nature of the argument presented in the Reply 3,Applicants do not
devote any consideration to the intentions of the authors of the Mandate,
but set themselves the more restricted target of showing that in practice
courts (including international courts) are on occasion required to apply
broadly fonnulated provisions as welt as provisions requiring an exami
nation of technical and political matters. This was of course never
disputed by Respondent~Respondent is well aware that in the course
of their normal duties courts are on occasion called upon to enquire into
matters which have political or technical aspects. \Vhat Respondent did
contend was that it could never have been the intention of the authors of
the î\Iandate to vest the Court with jurisdiction relative to matters of a
purely political nature arising under Article 2, paragraph 2, of the Man
date, particularly in view of the existence of supervision by the Council
and the Permanent Mandates Commission.
Examples of instruments which granted (or were held to have granted)
juris<liction in such matters, could consequently be of relevance only to
the extent to which they might bear on the intentions of the authors of
the illandate. Applying this test, the examples quoted by Applicants may
be graded into the following three categories, on the basis of the degree of
thcir relevance to the issues in dispute:
(a) the provisions of the various mandates;
(b) other instruments prior to or roughly contemporaneous with the
:nandates, and dealing with a more or less analogous subject-matter;
(c) instruments concluded a considerable period after the ~andate, or
which for other reasons cannot have any bearing on the intentions
of the authors of the Mandate.
These various categories will be dcalt with in the next succeeding
paragraphs.
9. As regards category (a), Applicants rely on four cases relating to
mandates 4. It may be convenîent to preface consideration of these cases
by briefly stating the sense in which they may be relevant to the present
issue. Applicants rely on them to establish the proposition, noted above 5 ,
that the mandates "were conceived and executed as legally binding
instruments-as a whole and in each of their parts" 6•This is, however,
7
not disputed by Respondent ,and the present treatment will accordingly
be devoted to ascertaining whether they may also be relevant to what
Respondent submits is the true issue between the parties, viz., whether
it was the intention of the anthors of the l\fandate that the Permanent
' Vide sec. B, para. G, supra.
i Vide para. 4, supra.
3 Vide paras. 6 and 7, supra.
• Vide IV, pp. 480-481. Thesc cases are: jerusC1lem-Jafja District Governor and
Anothn v. Su!eiman Muna and Others, t926 A.C. 321; A ttorney-General v. Abraham
A ltsh1der as quoted in Z,.-IcNair,A.D. and Lauterpacht, H. (Eds.), A nnual Digest of
Public Intenwtional Law Cases, I927-r928 (1931), pp. 55-56; Winter v. Minister of
Defence and Others, r940 A.D. 194 and 1\lavrommatis Palestine Concessions, Judg,
ment No. 2, r924, P.C.!.],, Series A, No. 2.
5 Vide para. 7, supra.
6 IV, p. 480.
7 Vide para. 6, supra. SOUTH WEST .-\FRICA
Court should adjudicate on alleged violations of Article 2 of the Mandate
for South \Vest Africa 1•As will be shown, none of the cases cited provides
direct authority on this point.
Only the Mavrommatis case dealt with the jurisdiction ofthe Permanent
Court, but there the dispute was concemed with certain specific provisions
of Article II of the Palestine Mandate 2, which provisions are not analo
gous, and are indeed not alleged to be analogous 3, to the broadly stated
objective embodied in Article 2, paragraph 2, of the Mandate for South
West Africa.
The other three cases were tried before municipal courts. and cdnse
quently do not deal with the jurisdiction exercisable by the Permanent
Court. Their authority on the point at issue could therefore at most be
of a relative nature; in other words, they could be relevant only to the
extent that they might contain views on the question whether alleged
violations of a provision as contained in Article 2, paragraph 2, of the
Mandate were intended to be justiciable in any court of Jaw at all, and
if so, on what basis. However, neither of the two Palestine cases 4 can be
of assistance in this regard, inasmuch as the provisions dealt with in them
were, as in the Mavrommatis case, not analogous to Article 2, paragraph
2, of the Mandate.
Altshuler's case applied Article r5 of the Palestine Mandate, which
provided that "... no discrimination of any kind shall be made between
the inhabitants of Palestine on the ground of race, religion or language" 5•
Murra's case was concerned with Article 2 of the Palestine Mandate.
which prescribed that "... the Mandatory [shall be) responsible for
'safeguarding the civil and religious rights of all the inhabitants of Pales
tine, irrespective of race and religion' " 6• lnasmuch as the Ordinance
then in dispute did not discriminate in Cavour of persons of any one
religion or race. it was held to be intra vires 7•As has been noted 8, the
Court in Murra's case expressly disavowed any general power to pro
nounce upon the merits of the legislative and administrative acts of the
Mandatory Administration. or to test them against its view as to "the
requirements of natural justice".
It will be apparent, therefore, that neither of the above two cases can
be of any authority for present purposes. The only remaining case, i.e.,
Winter v. Minister of De/ence, on the other hand, did give attention
specifically to Article 2, paragraph 2, of the Mandate for South West
1 Conscquently Respondent will not deal spccifically with the passage quoted
frorn \Vright, Q., Mandates under the Leaguc of Nations (1930), at IV, p. 480 which
does not appear to have relevancc to any actual issue between the Parties.
2 ,lfavrommatis Palestiiie Concessions, Judgment No. 2, 1924, P.C.!.].. Series A,
No. 2, pp. 17-19.
'IV,p.481. .
• Jerusalem-Jaffa District Governor a;id Another ,.. Suleiman 1Uurra and Others,
1926 A.C. 321 and A ttorney-General ,·. Abraham A llshulu as quoted in :\lc:\"air, A.D.
and Lauterpacht, H. (Eds.), A nnuat Digest of Public Jntemational Law Cases,
1957-1928 (1931 ). pp . .55-5C..
McNair, A.D. and Lauterpacht, H. (Eds.), Annual Digest of Public International
Law Cases, 1927-1928 (1931), p. .56.
6 Jerusalem,Ja{ja District Governor and Another v. Suleiman 1\lurra and Others,
1926 A.C. 321 at p. 327.
7 Ibid., p. 328.
8 II, p. 184. REJOINDER OF SOUTH AFRICA 1 49
Africa. It will consequently be dealt with in some detail in the next para
graph.
m. In M'ïnter's case, the question at issue was whether certain war
time emergency regulations were invalid as being contrary to the terms
of the :\Iandate for South West Africa. The South African Appellate
Division held that they were not contrary to such terms, and that-
"[t]he question whether the Courts in S.W.A. would have jurisdiction
to declare ultra vires any legislation in conflict with the provisions
of the Mandate does not there/ore arise in the present case ". (Italics
added.)
lt is to be noted in passing that Winter's case consequently provides
no authority for Applicants' proposition that-
"Courts in the Mandated and Mandatory areas have frequently held
that legislation within the Mandated Territories must be consistent
with the obligations of the Mandate charters. The theme runs
throughout these cases that the Mandate charter is the basic or
dinance for the Mandated Territory ... ~".
However, the important aspect for present purposes is the grounds
upon which the Court held that the emergency regulations were not
contrary to the Mandate. In this regard the Court said, referring to the
consideration given in a previous case 3 to the nature and effect of the
Mandate:
"The conclusions arrived at are that full power of administration and
legislation is vested in the mandatory, that the plenary authority to make
laws and en/orce them covers the whole sphere of government and that in
taking such measures as are calculated to maintain public order the
mandatory acts as any other sovereign authority would act in like cir
cumstances. lt is truc that this power of administration and legisla
tion is given subject to the terms of the Mandate, which in Articles 3,
4 and 5 sets forth certain prohibitions and safeguards to be observed
by the mandatory, but none of these prohibitions or safeguards are
relevant to the present inquiry. The appellant maintains, howevcr,
that the provisions of the Proclamation are in conflict with the pro·
vision in Article 2 of the Mandate that the mandatory shall promote
to the utmost the material and moral well-being and the social
progress of the inhabitants of the territory. As I have pointed out
abo-..,ethis Co11rthas laid down that, in taking measiires to maintai,.
public order, the mandatory acts with fidl sovereign authority. The
Proclamation in question is such a measure, issued by the legislativc
authority duly constituted by the mandatory, and in its preamble
it recites as one of the reasons for its issue that, under the circum
stances therein set out, the ordinary law of the land is inadequate
to enable the Government to fulfil its duty in safeguarding the wel
fare of the inhabitants and in cnsuring the security of the Statt.
That being so, it cannot in my opinion be said that it is in conflict
with the duty to promote the well-being of the inhabitants of tht
territory "." (Italics added.)
1 Winter v. Minister of De/ence and Others, 1940 A.D. 19at p. 198.
2 IV, p. 480.
3 H.ex. v. Christian1924 A..D. 101.
• ll'inler v. Jllinister of Defence and Others, 1940 A..D. 194 at pp. 197-198. SOUTH WEST AFRICA
On the strength of the above decision, Applicants say:
"Thus, the Court had no difficulty in deciding whether or not
legislation was consistent with the broadly formulated obligations
of Article 2. paragraph 2, of the Mandate 1."
lnasmuch as the Court held that the Mandatory possessed "full
sovercign authority" in the respect in question, it was indeed not difficult
to find that such authority was not exceeded. ln keeping with this ap
proach, the Court's reference in the above passage to one of the recitals
in the Preamble of the Proclamation under which the regulations were
promulgated, is instructive. The recital was to the effect that "... the
ordinary law of the land [was} inadequate to enable the Government to
fulfil itsut y in safeguarding the welfare of the inhabitants ... "Although
the Court referred to this reason given by the law-giver for the issue of
the Proclamation, it did not conduct any enquiry of its own into the
question of the soundness or justifiability thereof~quite evidently on
the basis that the function to do so was entrusted not to the Court but
to the Mandatory exercising the "sovereign authority" in question.
II. The second category of instruments referred to by Applicants are
those which were concluded prior to or roughly contemporaneously with
the Mandate, and may conceivably have exercised some influence on the
intentions of its authors, or may throw some light on the meaning of its
provisions. The only international instruments mentioned by Applicants
which could be placed in this category, are the minority provisions, and
the Constitution of the International Labour Organisation 2• These
instruments were dealt with by Respondent in the Counter-i\Iemorial 3,
and, for reasons there set out, it was submitted that an examination of
the relevant provisions strengthened the conclusion that the authors of
the Mandate could not have intended to grant justiciable legal rights or
interests to individual Members of the League, relative to the obligation
imposed upon the Mandatory by Article 2, paragraph 2 (save possibly in
so far as their material interests could be affected by a breach thereof),
and consequently (save in the respect stated) did not intend the Court to
possess jurisdiction in respect of alleged breaches thereof. Applicants
have not sought to controvert Respondent's argument in this regard 4.
Applicants in the Reply also refer to the testing power exercised by the
Supreme Court of the United States of America in determining the legality
or otherwise of measures alleged to contravene the provisions of the
Constitution 5•There is, however, no reason to think that the authors of
the mandate system intended to bestow a similar power on the Per
manent Court. On the contrary, the circumstances referred to in the
extracts from the works of Sir Hersch Lauterpacht which are quoted
1 IV,p.481.
2
3 Ibid.,p. 482.
1 II, pp. 187-189.
Save to a limited extcnt in a differcntcontext-vide IV, p. 546 and sec l'art
II, Chap. IV B, para. 10, supra. For purposes of the present discussion Applicants
rcly on thesc instrnments only as authority for the proposition that they contain
"generally formulated obligationsor sets of obligationswhich providc for, or have
actually been the subject of judicial interpretation" (IV, p. 482), as to which
proposition,vide para. 8,supra.
~ IV, pp. 483, 487. REJOINDER OF SOUTH AFRICA 151
belo\v 1,would render such an intention most unlikelv. and would at least
seem to exclude the possibility that such a power would have been granted
without making express provision therefor, and without any specific
references thereto in the preliminary discussions.
12. The last category of instruments referred to by Applicants are those
whkh cannot have any bearing on the intentions of the authors of the
Mandate inasmuch as they are remotc from the Mandate in point of time
or subject-matter. This category includes most of Applicants' examples 2•
Sorne of these examples may show that courts are sometimcs called upon
to exercise functions corresponding in some respects with those contended
by Applicants to have vested in the Permanent Court in respect of man
dates; but they almost invariably also reveal important aspects of
difference, and in any event they do not show that the grant of such
fonctions is so common as to be presumed even where there exist strong
contra-indications.
In the case of virtually ail the examples quoted by Applicants, it is to
be noted that specific criteria are prescribed for the exercise of the Court's
jurisdiction, though in some instances of a wide nature. Thus, in the case
of the Customs RégimebetweenGermany and Austria 3 the Court decided
that the customs régimethen under consideration was inconsistent with
an obligation expressed as follows:
"... [Austria] shall not violate hcr economic indepcndence by
granting to any State a special régime or exclusive advantages cal
culated to threaten this independence 4 ".
The Court's Opinion was not based, as asserted by Applicants, on "an
5
assessment of future political contingencies" ,but purely on the contents
of the régimecreated by the Austro-German Protocol of 19 March 1931 6•
ln the European Convention for the Protection of Human Rights and
Fundamental Freedoms 7, the rights and freedoms in question are not
defined simpliciter with reference to such broad formulations as "right to
life", "right to liberty and security of persans", etc., as suggested by
Applicants 8. The Convention contains numerous detailed provisions,
some positively prescribing what is to be regarded as included in the
concepts concerned, others negatively stipulating exclusions, exceptions
and qualifications, and yet others coml;iining the positive and negative
aspects. The total result is that in each instance, to a greater or lesser
extent, the content and limits of the obligation undertaken are defined
with reasonable exactness Q. lndeed, a recent commentator states that
the rights protected by the Convention" ... were rights which States were
1 Vide paras. r4-17, itijra.
2 Vide, e.g., IV, pp. 482-483, 485-487.
3 Customs Régime between Germany and A ustria, Advisory Opinion, 1931, P.C.I.J.,
Series A /B, No. 41, p. 37.
• Ibid.,p. 43. .
' IV, p.486.
6 Customs Régime between German y and A us/ria, Advisory Opinion, 1931, P.C.I.J .,
Series A/B, Xo. 41, p. 37 at pp. 49-52.
7 Referred to in IV, pp. 482-483 and 486.
8 Ibid., p. 483.
9 Vide Convention, Article 2 (right to life); Article 5 (right to liberty and security
of person); Article 8 (right to respect for famîly life); Article 9 (right to freedom of
thought, conscience and religion); set out in Weil, G. L., The European Convention 011
Human Rights: Background, Development and Prospects (1963), pp. 229-232. SOUTH WEST Al'RICA
1
willing to cnforce because of their precise definition" • (Footnote
omitted.) Applicants' statement that these rights-
"... include such broadly formulated rights as the right to life, the
right to liberty and security of persons, the right to respect for
family life, the right to freedom of thought, conscience and religion,
and man y others Z",
is consequently misleading, to say the least.
Furthermore, it is to be noted that the Convention created a unique
and elaborate system of enforcement requiring prior exhaustion of
domestic remedies, and involving a number of organs, viz., the European
Commission of Human Rights, the Committee of Ministers, and the
specially created European Court of Human Rights • It is also to be
noted that the rote played by the Courtis limited and circumscribed by a
number of conditions which include the requirement that "[t]he Court
may only deal with a case after the Commission has acknowledged the
failure of efforts for a friendlv settlement ... " \
An examination of the involved system created by the Convention,
the closely related States which are parties thereto, and the history of its
drafting 5, cannot but bring home to one how extremely far-fetched
Applicants' contention is that a much more extensive and much less
well-defined system of "judicial supervision" was created in the atmos
phere prevailing in 1920, without even any discussion or debate on the
subject 6•
7
The case of the Diversion of the Water /rom the Meuse involved the
interpretation and application of a treaty between the Netherlands and
Belgium, which, therefore, prescribed the criteria for determining, and
adjudicating upon, the legal rights and obligations of the parties. Inas
much as the subject-matter was a technical one, the Court naturally re
quired assistance from the realm of the natural sciences with a view to a
proper understanding and application of the prescribed criteria; but that
does not mean that natural sciences by themselves supplied the criteria,
as would seem to be suggested by Applicants' statement that "[t]he
International Court has similarly applied concepts derived from the
natural sciences ... " s_
Applicants say, with reference to the concepts of abus de droit, bonnes
moeurs and ordre public in French Law, that-
"[j]udicial process in civil law systems similarlv draws upon humane,
moral and political standards as sources of la\v, and does so particu
Iarly where Iegal rights or duties are not explicitly defined 9".
1 Weil, G. L., op. cil.p. r94.
z IV, p. 483.
3 Weil, G. L., op. cil., pp. 81-166.
• Article 47 of the Convention (Weil, G. L., op. cit.p. 156). Regardingenforcement
generally. vide also pp. 153·162.
5 On all these tapies, vide \Veil, G. L., op. cil., passim.
6 ln this connection it is rele,·antto note that, according to Applicants, ''...
:'.llandates were regarded, first and foremost, as what would be described, in the
universally accepted current terminology, as 'hum an rights documents' ". IV,
p. 794.
DiveYsioii of Water /rom the Meuse, Judgment, r937, P.C.!.}., Series A /B,
lV'o. 70.Vide IV, p. 486.
8 Vide IV, p. 48(,.
9 Ibid.,p. 487. REJOIXDER OF SQ{.)TH AFRICA 153
It is true that many municipal systems require judges to apply con
cepts such as those mentioned above; but such concepts, whether found
in common Jaw or in customary law, or whether formally embodied in a
code, nonnally possess well-recognized contents and spheres of applica·
tion in the legal system concerned. Although a judge might in a particular
situation, depending on the nature of the case before him and the degree
of development of the doctrine to be applied, have to exercise a value
judgment regarding humane or moral considerations (but seldom
political ones), he would in the context of municipal law (otherwise than
in international law) be influenced and guided by the factors rcferred to
by Sir Hersch Lauterpacht in a passage quoted below 1,as well as nor
mally being subject to appeal. The existence in privatc law systems of
wide principles of an equitable nature but of a recognized content, there
fore provides no reason for supposing that the authors of the Mandate
would have intended to bestow on the Permanent Court. an international
tribunal, jurisdiction to apply a formula which does not involve only
matters of morals or ethics (on which judges of different nationalities may
well hold different views) but technical and political aspects of good
government, which normally fall completely outside the purview of
judicial determination.
Respondent does not wish to multiply examples, since none of the
instances referred to by Applicants and now under consideration could
bear directly upon the intentions of the authors of the Mandate (which
isthe material issue for present purposes) 2,and none of them is so closely
analogous to the Mandate as to rcnder the interpretation contended for
by Applicants other than extremely improbable and unlikely to have
been intended by the said authors. In Respondent's submission the
examples on the whole tend to confinn the extreme improbability of an
intention to require a court of law to cxercise a task of judicial review in
respect of so wide and essentially political a function as the government
of a territory,with no more precise formulation or criteria than the broad
and general one, inherent in ail enlightened systems, that the powers
of legislation and government are to be exercised with a view to pro
moting to the utmost the well-being and progress of the inhabitants.
13. After quoting the examples considered in the previous paragraphs,
Applicants say in regard to Respondent's argument:
"The ... fallacy is that, for reasons unexplained, Respondent ap
pears to assume that it is not as difficult for a political body to deal
with a generally stated obligation, or with one based upon economic,
social or political considerations, as it (sic) for a Court. Human ex
perience. both in respect of national and international parliamentary
bodies, belies such an assurnption 3."
Respondent was under the impression that it had provided its reasons
for this"assumption". They are, firstly that a technical body, such as the
Permanent Mandates Commission, possessed the expert knowledge and
experience to collaborate in giving effect to provisions such as those in the
Mandate which are now under consideration, whereas a court consists of
people versed in the law, who may not necessarily possess any expert
1 Vide the second passage quoted in para.14, infra.
2 Vide para. 8, supra.
3 IV,p.491. SOUTH WEST AFRICA
154
knowledge of ethnology, sociology, economics, administration, etc. 1
Secondly, the Permanent Mandates Commission and the Council were
more pliable in their procedure and fonctions than a court, and could
therefore be of much g2eater assistance in the pursuance of the objectives
of the sacred trust •The Commission or the Council could express opin
ions on a wide variety of practical matters, whereas a court would be
limited to adjudicating alleged breaches of the Mandate. A judgment of
the Court would be binding on the parties, whereas practices recommended
by the Commission or the Council could be applied, and if unsuccessful,
modified or abandoned.
14. In regard to the suggestcd fonctions of the Permanent Court in
respect of mandates, it is instructive to refer to some of the works of Sir
Hersch Lauterpacht. In two of his works 3he considered the possibilities
and problems involved in international protection of certain basic human
rights. Sorne of ius observations illustrate the reasons why an inter
national court is in many ways an unsuitable body to review the cxercise
of administrative and legislativc powers by organs or officiais of a State,.
and why it is most unlikely that the authors of the Mandate intended the
Permanent Court to perform such a function with respect to mandatory
administration.
In discussing the enforcement of, and guarantees for, an International
Bill of the Rights of Man, the learned author states:
"To the unsophisticated it would appear ... that these imply the
setting up of an international machinery of judicial review, through
an appropriate tribunal, having jurisdiction to nullify executive
action, decisions of courts, and the legislation of States as does, for
instance, the Supreme Court of the United States. lt is proper to
refer to that court by way of example. For it is a court which, more
widely than any tribunal in the world, has been called upon to
protcct the rights of the individual as guaranteed by the Constitu
tion. Yet the very mention of the Supreme Court of the United
States as an organ acting in that capacity reveals instantaneously
the extreme complexity of the problem involved. For although no
court has performed this task with greater authority, none has in
curred more intense criticism on that account. No tribunal of similar
standing has drawn upon itself to a comparable extent the charge
that it4 activity has tended to produce a government of judges, not
of law ."
After mentioning some criticisms of the United States Supreme Court
which have been voiced in the past, Judge Lauterpacht continues:
"These criticisms and difficulties with which that august tribunal
of the United States has had to contend are almost trifling when
compared with the situations with which an international tribunal,
endowed with similar powers, would be confronted. The powers of
any court, national or international, are, in theory, rigidly circum
scribed by the duty to apply existing law. But that law is indefinite
and elastic in proportion to the generality of its content-such as is
1 Vide II, para. 16, p. 183.
2 Ibid., and vide also ibid., p. 389.
3 Lauterpacht, H., An International Bill of the Rights of Man (1945) and Inter
national Law and Human Rights (1950).
• Lauterpacht, H., .4n InternationalBill of the Rights oj Man (1945), p12. REJOI:--DER OF SOUTH AFRICA
155
implicit in the guarantee of the inherent rights of man against the
State. In relation to such matters it is of special significance that
the judicial duty of applying the law must be fulfilled by human
beings with their own philosophies and prcjudices. There is no means
of excluding the operation of that human clement. Within the same
national group there exist restraints upon the unavoidable power
of judges: these are the community of national tradition, the over
whelming sentiment (from which judges are not immune) of national
solidarity and of the higher national interest, the corrective and
deterrent influence of public opinion, and, in case of a clear abuse
of judicial discretion, the relatively speedy operation of political
checks and remedies. None of these safeguards exist, to any com
parable extent, in the international sphere. Ail these difficulties
reveal the implications of the proposai to confer such powers, in
relation to the very basis of the national füe of sovereign and in
dependent States, upon a tribunal of foreign judges 1."
15. In a later part of his book, the learned author advances a further
reason why international judicial review would probably not be accept
able to many States:
"The latter [i.e., judicial review within the State] has been sub
jected to widespread and emphatic criticism in the United States,
the principal country which has adopted judicial review, and else
where as constituting a denial of the sovereignty of the legislature
and of the people. Can it be expected that countries in which opinion
issharply divided as to the merits of review of their legislation by
their own tribunals will acquiesce in such review by an international
tribunal in matters touching practically ail manifestations of their
national life? Can it be expected that countries which have no judi
cial review within their borders and in which legal opinion and legal
tradition have resisted it vigorously and successfully, will entrust it
to an international tribunal? This 1snot a matter of the desirability
or otherwisc of surrender of sovereignty on a large and unprecedented
scale. Itis a question of the inherent merits of the system of judicial
review both in the national and in the international sphere 2."
(Footnote omitted.)
In regard to the point made in the last passage, it is interesting to note
the legal position in some of the States which were prominent in the crea
tion of the mandate system. The Belgian Constitution of 1921 and the
Italian Constitution of 1848 (still in force at the time of the Peace Con
ference) specifically excluded the interpretation of laws-and a fortiori
any declaration of their invalidity-from the purview of the judiciary 3•
And, in the words of the same leamed author: "Judicial. review of legisla
tion is contrary to the constitutional doctrine of France and, above all,
of Great Britain, where the supremacy of Parliament is absolute 4."
16. Judge Lauterpacht points out that some powers of the nature
referred to in the preceding paragraph have occasionally been exercised
by international and quasi-international tribunals, and be refers, inter
1 Lauterpacht, H., An International Bill of the Righls oJt1ait (1945), pp. 12-13.
2 Ibid., pp. 174-175.
3 Ibid., p. 187.
• Ibid., pp.187-188. SOUTH WEST AF"RICA
alia, to an Advisory Opinion relating to the Constitution of the Free
City of Danzig 1.The learned author then continues:
"However, it must be borne in mind that, normally, the Con
stitution of Danzig was placed under the guarantee, not of the Court,
but of the Council of the League, a flexible political organ. Neither
is it without importance that the State in question was a small
semi-independent community set up to meet a complex political
situation. The position is different when it is proposed to confer
jurisdiction of that nature upon an international court with regard
to Great Powers ... 1''
And after referring to some further instances, he concludes: "But there
is little persuasive power in these examples 2."
17. The reference in the passage, cited in the preceding paragraph, to
"a flexible political organ" becomes clearer when regard is had to a
quotation from the author's later work on this subject. in which he says:
"A court must, as a rule, confine itself to the ascertainment of the
legality or otherwise of the action complained of. Tertium non datur.
It cannot propose a course of action which would render a formai
finding unnecessary. This can properly be done by an organ which,
although not disregarding the legal aspects of the complaint and
although empowered to pronounce on both facts and law and to
make a binding recommendation, can avail itself of the more elastic
procedure of conciliation and attempts at a compromise ... 3"
And he concludes:
"Finally, the creation of a non-judicial organ is necessitated by the
fact that social and economic rights ... are not such as to lend them
selves to enforcement by judicial process. At the same time they
cannot be permitted to remain a mere declaration of principle.
For that reason they seem to be the proper subject matter for a
general guarantee and supervision by a body of the kind here con
templated operating through a procedure more elastic and informai
than is permissible in the case of a court 3."
18. Respondent has quoted at some length from the works of Sir
Hersch Lauterpacht, because of the similarity between the problems
with which he was dealing, and those that would have confronted the
authors of the mandate system had they contemplated the introduction
of a system of judicial review 4. In this respect the changes in popular
attitudes towards such matters must also be kept in mind. It seems that
in more recent times the concept of international judicial review of inter
nai policies is not generally regarded as being quite as startling as for
merly. It is interesting to note in this regard that between 1945 and 1950
Judge Lauterpacht's own views regarding the merit and practicability
of international judicial review, softened somewhat 5.
In the circumstances existing at the time of the foundation of the
mandate system, it seems unthinkable that the authors of the system
1 Lauterpacht, H., An International Bill of the Rights of Man (r945), p. 13.
2 Ibid.p. 14.
3 Lauterpacht, H., International Law and Human Rights (r950), p. 377.
• As noted, Applicants refer to the Mandate as a "human rights document"
lV,5P· 494.
Lauterpacht, H., International Law and Human Rights (1950), p. 383. REJOINDER OF SOUTH AFRICA 157
would have been prepared to allow the Permanent Court to deliver
judgment on issues such as those arising from alleged contraventions
of Article 2,paragraph 2, of the Mandate. It must not be forgotten that
the authors of the system included the prospective l\fandatories, and
that some of them even had difficulty about accepting supervision by the
Council of the League, which was a flexible political body on which
they were strongly represented and in which the principle of unanimity
so firmly insisted upon at the time-applied. Having regard to the difficul
ties and disadvantages inherent in judicial review, which seemed so
decisive to Judge Lauterpacht in 1945 and even in 1950, and further to
the fact that the Court could arrive at its decisions by a bare majority,
submission to such review must in 1920 have represented to the States
concerned an alanning and unprecedented surrender of their rights of
administration and Iegislation. Consequently one cannot imagine that
they would have accepted it in 1920, not only without objection, but
even without discussion.
19. For the reasons set out above, Respondent's submission that no
jurisdiction was intended to be bestowed on the Permanent Court to
adjudge alleged infringements by the Mandatory of Article 2, paragraph
2, of the Mandate, is not affected by anything saicl in the Reply, which,
in fact, does not deal therewith directly at al!.
C. On what Legal Basis Could a Court Determine Alleged Violations of
Article 2, Paragraph 2,of the Mandate?
20. Respondent's alternative argument, which would require con
sideration only on the basis that the Court does possess jurisdiction to
adjudge alleged infringements of Article 2, paragraph 2, is founded on
1
the follov.ing simple propositions :
(a) Respondent was granted "full power of legislation and adminis
tration". Such grant necessarily entailed that Respondent was
required and entitled to use its discretion as to the need for and
the manner of the exercise of its powers.
(b) It is of the essence of a discretionary power that an act purported
to be in exercise thereof is not illegal unless it is contrary to some
legal provision regulating such exercise. or exceeds the limits
expressly or by implication placed upon the power. No regulatory
provisions were imposed in respect of Respondent's powers under
the Mandate 2,thus leaving only the question as to the nature of
the limitation imposed by Article 2, paragraph 2.
(c) The only limitation placed by Article 2, paragraph 2, on the dis
cretionary power vcstcd in Respondent was that such power should
be exercised for the purpose of promoting to the utmost the well
being and progress of the inhabitants of the Territory.
(d) Consequently the Court can determine whether a legislative or
administrative ad or policy constitutes an infringement of Article
2, paragraph 2, only by examining whether or not the exercise of
discretion involved in such act or policy, was directed at the pur
pose of promoting to the utmost the well-being and progress of the
1
2 II,pp. 384-392.
For present purposes the limitationsexpressed in Articles 3, 4 and 5 of the Man.
date for German South-WestAfrica are not relevanand are thereforenot mentjoned. SOUTH WEST AFRICA
inhabitants. Such an examination would, in the circumstances,
involve an enquiry as to the good or bad faith of the l\fandatory.
(e) The conclusion set out in subparagraph (d) is strengthened by the
consideration that, whenever there is scope for honest difference of
opinion (as thcre often must be) on the question whether a particular
legislative or administrative measure or policy does or does not, or
wilt or will not, in /act promote well-being and progress to the utmost,
there are no legal norms-as distinct from political or social views
or theories-which a Court can apply for giving preference to
any of the conflicting opinions to the exclusion of the others.
Consequcntly, the only legally prescribed basis upon which the Court
can determine whether the Article has been violated, is to enquire
whether such measure or policy was intended to promote well-being
and progress tothe utmost 1.
21. The starting point of Respondent's above argument is the demon
stration that its powers in terms of Article :2of the Mandate were of a
discretionarv nature. This was established in the Counter-Memorial by
interpretation of the mandate documents, and w:ith reference to strong
2
authority • To the authorities thcrc cited may be added the following
statemcnt by Bentwich:
"No attempt is made in the Mandate documents or by the l\fan
dates Commission to lay down any particular system of government
applicable in these territories. The Mandatory in this respect has
a free hand, and may introduce such measures of autonomy as he
thinks fit.The guiding principle is that the Government must have
in view the interests of the native inhabitants. Great variety in the
system of administration, in fact, exists, even within a single country
under mandate, and some of the mandated territories have indeed
been divided by the Mandatory for legislative and administrative
purposes 3." (Italics added.)
Given the premise that Respondcnt's power of administration and
legislation in terms of Article 2 of the Mandate was of a discretionary
nature, the rest of Respondent's argument follows purely as a matter of
logic. Thus, as Respondent pointed out in the Counter-Memorial, it is
logically inherent in ail cases where courts have to decide on the legality
or otherwise of the exercise of a di,;cretionary power, that the court is
not entitled to substitute its own discretion for that of the authority
in which the discretion has been confided 4. As authority, Respondent
referred to an English work, which dealt with the attitude consistently
adopted by British courts . However, the principle, being one of logic,
is universally applicable. Thus one finds the identical concept expressed
1 It is conceivable that a court could, exceptionallycorne to a factual conclusion
that a particular measure or policy is so manifestly detrimental to well-being, or
not conducive to progress. as to leave no room for honest difference of opinion that
it does not and will not promote well-being and progress, either to the utmost or
at ail. This would, however, amount exactly to a finding, by inference, that the
measure or policy could not bona fide have been intended to bring about such pro
mntion, to the utmost or at all. Vide paras. 27 and 39, infra.
2 Vide II,pp. 387-389.
3 Rentwich, N., The Mandates System (1930), p. 98.
• H, p. 392.
5 De Smith, S. A., Judicial Review of AdministratîuAction (1959), p. 167. REJOI~DER OF SOUTH AFRICA 1 59
in continental systems. In a recent cdition of an authoritative French
work it is said:
"... au cas de pouvoir discrétionnaire le choix fait par l'administra
teur de la mesure prise, c'est-a-dire l'objet de l'acte ne pourra pas
êtreillégal (à condition bien entendu que la mesure prîse ne fût pas
en elle-mêmeinterdite par la loi); le contrôle du juge ne pourra pas,
de ce point de vue, s'exercer, sinon le juge se substituerait à l'ad
ministrateur pour apprécier l'opportunité de la mesure, appréciation
1
que la loi avait précisément entendu laisser a l'administrateur ".
Similar principles are applicable in Germany 2, ltaly, and other conti
nental systems 4.
22. H it is not the function of a court to express an opinion on the
merits of a particular discretionary decision, nor to enforcc such opinion
on the authority exercising the discretion, what basis for interference then
exists? Logicdicta tes that a court can do no more than enforce cornpliance
by such authority with the provisions governing the exercise of the
discretionary power. This may take a number of different forms, but
essentially it amounts to this, namely that the court may enjoin action
wh:ch is required by the provisions relating to the discretionary power,
or that it may prohibit or annul action which is contrary to or in excess
of the provisions relating to the discrctionary power. As a matter of logic,
no other action by a court would follow from being required, in the
ordinary course of its judicial duties, to pronounce upon the legality or
otherwise of the exercise of a discretionary power. It is true that municipal
courts sometimes exercise more extensive powers of review, and may in
pursuance thereof apply other criteria, such as for example unreason
ableness; but that is so by virtue of a specific grant of such powers, which
may be exercised only in the particular instances in respect of which
the said powers were granted and in accordance with the provisions
of the grant. Since no such criterion has, however, been laid down with
respect to possible review of Respondent's powers under Article 2 of the
Mandate, such departures from the ordinary rule may be left out of
account for present purposes.
23. In the present proceedings, Applicants ask for orders declaring
that certain conduct or policies are in violation of Article 2 of the 1'1an-
1 De Laubadère, A., Traité Elémentaire de Droit Administratif (r963). p. 2r4. The
following is a free translationof the quoted passage:
" ... in the case of discretionary power, the administratm\; choice regarding
the measure to be adopted, that is to say, the content of the act, cannot be
illegal(on condition, it should be understood, that the measure adopted is not
in itself prohibitedby law); judicial contrai cannot be exercised from this point
of view without the judge substituting himself for the administrator in de
termining the expediency of the measure, a deternlination which the law meant
to leave precisely to the administrator."
Vide also Venezia, J., Le Pouvoir Disr.rétionnaire (r959), p. 137.
2 Forsthoff, E., Lehrbuch des Verwaltungsrechts fr961), Vol. 1,p. 84.
Galeotti,S., The j11dicial Control ofPublic A uihorities in England and in [taly
(1954), pp. ro2-r6i.
• For a convenient comparison of the laws of France, Belgium, Luxembourg, the
Netherlands, Italy and Gerrnanyin respect of détournement de pouvoir, vide Lagrange,
M., "Chrnnique Européenne: Cam de Justice de 1a 'Communauté Eurnpéenne du
charbon et de l'acier",Revue du Droit public et de JaSciencePolitique en France et à
l'Etranger, No. 3 (juillet-septembre 1955), pp. 570-631 at pp. 583-593.160 SOUTH WEST AFRICA
date, and should therefore cease. It follows from the logical principles
inherent in the nature of discretionary powers, that the Court can accede
to this request only if it be shown that Respondent has, in engaging upon
such conduct or adopting such policies, acted contrary to, or has exceeded,
the provisions of, or relating to, the discretionary power. Respondent is
not limited in the exercise of its discretion by any requirements of fonn
or procedure, nor are there any subject-matters which are heyond its
competence 1.Once it is conceded that Respondent's acts were, as far as
form and procedure were concerned, valid, and that they related to
subjects falling within its competence, what other basis for possible
illegality remains? All that remain are the provisions of Article 2, para
graph 2, of the Mandate. Respondent has submitted that Article 2,
paragraph 2, from its very nature, and its inter-relationship with Arti
cle 2, paragraph 1, does not contain an exact formulation of an objective
standard to be complied with by the Mandatory, but a broad expression
of the purpose to be pursued by it 2•This submission was based on an
interpretation of the relevant texts, as well as on sound authority 3.
It will be apparent that the provisions of Article 2, paragraph 2, in
prescribing a purpose to be pursued, do not thercby neutralize or elimi
nate the discretionary element in Respondent's powers of government.
The question of method to achieve such a broad purpose as to "promote
to the utmost the material and moral well-being and social progress"
of the inhabitants of mandated territories, is from its verv nature one
on which informed and honest opinion could differ. The Mandate could
have prescribed a method or methods, but did not. Similarly it could
have prescribed precise and ·readily applicable norms or standards for
measuring whether the Mandatory was complying with its duties, but
again it did not 4.The only reasonable construction therefore is that the
Mandatory, to which full powers of government were granted, should in
its discretion determine questions of method-the contemplation being,
of course, that it would be aided and guided, inter alia, by the prescribed
snpervisory organs.
It follows necessarily that Respondent's administrative and legislative
acts can be declared illegal only if such acts were not directed at the
purpose prescribed in Article 2, paragraph 2, of the Mandate, viz., to
"promote to the utmost the material and moral well-being and social
progress of the inhabitants of the territory". In the words of the Chief
Justice of Australia:
"If a power is conferred in terms which require it to be used only
for a particular purpose, then the use of that power for any other
purpose cannot be justified. \Vhen a legislative power is defined by
reference to purpose, legislation not directed to that purpose will
be invalid ... 5"
1
Apart again, from the limitations, not relevant for present purposes, in Articles
3· 5 of the Mandate for German South-,Vcst Africa.
1 Il,pp. 385-389.
3 Ibid.; videalso Part II,Cha p. II.para. 11,supra (references to The Mandates
System-Origin-Principles-Application (r945)); and to the Hymans Report,
L.of N., O.]., J920 (Ko. 6), pp. 334-341, and the reference to Bentwich in para. 2r,
supra.
• Save again for Articles 3-5 of the l\fandate for German South·"'est Africa.
5 A r/hur Yates and Company Proprietary Limited v.The Vegetab{eSuds Committee
and Others, 1945-1946, 72 C.L.R. 37 at pp. 67-68. REJOINDER OF SOUTH. AFR!CA r6r
Since this principle follows as a matter of logic from the nature of
discretionary powers limited by reference to purpose, it is not present
only in common law systems, but is also found in civil law systems.
Indeed, it is basic to the whole concept of détournementde pouvoir, which
plays such a large role in administrative law on the continent of Europe 1.
24- The only possible test to be applied by this Court is, accordingly,
whether Respondent has, or has not, exercised its discretion for the
purposc of promoting the interests of the inhabitants of the Territory.
This is equivalent to saying that the test is whether Respondent has
acted in good or bad faith-i.e., in the circumstances of a case like the
present, where there is no realistic scope for a genuine misunderstanding
on Respondent's part of the nature and extent of the power conferred
and of the purpose for which it is to be exercised. ·
Thus, for instance, an eminent English judge said:
"When, however, it is said that the court must not interfere with
the exercise of that discretion by the statutory body which has the
power vested in it unless the statutory body is using the power
vested in it otherwise than in good faith, I think that means, other
wise than for the purpose for which those powers are vested in it ."
And a leamed British Law Lord expressed himself as follows:
''I take it to be clear that there is a condition implied in this as
well as in other instruments which create powers, namely, that the
powers shall be used bona fi.de for the purposes for which they are
conferred 3."
25. Although Applicants purport to present argument in reply to
Respondent's proposition that "... compliance with [Article 2] could be
judged by the Court only upon the basis of Respondent's good or bad
faith" 4, they do not deal specifically with the above argument, nor do
they indicate clearly on which points they join issue with Respondent.
Save for their attempt to introduce "norms and standards" into the
Mandate 5, they do not even try to meet Respondent's clemonstration
that its powers under Article 2 were of a dîscretionary nature, but appear
to content themselves with comments such as the following, viz.,
"... there is at best a tenuous distinction between a contention
that the administration of the Mandate is 'left to the discretion of
the :\fandatory', free of international supervision and accountability
and a contention that the Mandate created a relationship between
Respondent and the Territory 'close to annexation' 6". (Italics
added and footnotes omitted.)
Respondent does not appreciate the relevance of this consideration,
and particularly not of the italicized words. Respondent's view that the
Mandate created a situation which, in the dav-to-dav administration of
the Territory, was not far removed from annexation, was obvi.ously
1 Vide Lagrange, ubi supra.
2 Vaughan Williams, L.J. in Rex v. Brighton Corporation; Ex parle Shoosmith,
1907, Vol. XCVI, L.T.R. 762 at p. 763.
3 Lord Lindley in General A ssembly of Free Church of Scot/and and 0/hers v.
Lord Overlotm and Others, 1904 A.C. 515 at p. 695.
4 IV, p. 477.
5 As to which, videparas. 26, 29-38, infra.
6 IV, p. 256. A similar statement appears at p. .:54.162 SOUTH WEST .-\FRIC\
based on its interpretation of the extent of the l\landatory's powers of
administration and legislation 1•That was, however, the position which
cxisted irom the beginning, also during the life-time of the League. The
interpretation of Article 2 can hardly be different now that international
supervision and accountability have fallen away. It is consequently
assumed that Applicants merely wish to point to the conscquences of the
lapse of supervision by the League if Respondent's snbmission regarding
its discretionary powers were to be accepted. However, this Court cannot
alter such consequences by giving to Article 2 a construction different
from that which it would have had prior to the dissolution of the League.
Without pin-pointing (and possibly even without appreciating) the
nature of their problem, AppJicants nevertheless experience grave
difficulty in formulating an argument which can plaus1bly be said to
cope with the consequences of the discretionary element inherent in
Article 2 of the Mandate. ln the succeeding paragraphs Respondent will
show how they have grappled with this problem from the commencement
of the prescnt proceedings, only to be forced on each occasion to a con
clusion which is in substance the same as that reached by Respondent.
26. In their Memorials Applicants, at the outset of their treatment of
alleged violations of Article 2 of the Mandate, confessed that-
..... differences of opinion could arise as to close or doubtful issues
concerning the application of the terms of Article 22 of the Connant
2
and Article 2 of the Mandate ";
but they contended that-
"[i]n the present case, however, the issues of fact and law, and of the
application of law to fact, do not involve conjecture. The violation
of the duty to promote 'material and moral well-being and social
progress' is beyond argument 2".
How did they seck, in thcir Memorials, to get out of the conjectural
sphere, where "differences of opinion could arise"?
In the first place. they immediately proceeded to say that "fa]ny
doubt ... is resolved in the light of currently accepted standards as
reflected in Chapters XL XII and XIII of the Charter of the United
Nations" 2•
ln these provisions of the Charter, Applicants sought to find certain
"clear and meaningful norms marking the duties of the Mandatory" 3.
which thev formulated and listed in the Memorials 4•These "norms" did
not, however, assist Applicants in their attempt to remove this case from
the discretionary or conjectural sphere. As demonstrated by Respondent,
the "norms" 5 amounted to no more than matters to which it could (with
some qualifications) be said that the Mandatory should have regard as
ultimate aims in exercising its discretionary fonction undcr Article 2 of
the Mandate 6• They did not indicate methods to be applied by the Manda
tory in realizing the aims, and consequently did not provide any objective
1 Vide Part Il. Chap. II. para. 5,supra.
2 1, p.104.
3 Ibid., p107.
• Ibid., pp.107-108.
5 Even if they could be read into the :Mandate, which Respondent disputed
vide para. 42, infra.
6 Vide Il, pp. 397-398. REJOINDER OF SOUTH AFRICA
criterion for assessing the legality of Respondent's policies and practices.
Consequently, since Respondent could in dealing with the facts, demon
strate that its policies were directed at pursuing such aims, these "clear
and meaningful norms" brought Applicants no nearer to the result of
"beyond argument".
27. But a second method was employed by Applicants in the l\Iemorials
in an attempt to escape the conjectural sphere, where "differences of
opinion could arise", and thus to bring them to the point of "beyond
argument". Their contention was that Respondent "... has not only
failed to promote 'to the utmost' ... "but" ... has failed to promote ...
in any significant degreewhatever" . (ltalics added.)
This was also rendered as "... has not even made any substantial
effort to do so" 2, or'' ... has made no notable effort to do so" 3.On the
contrary, said Applicants, Respondent's "... efforts ... have in fact
been directed to the opposite end''\ in that it has deliberately and
systematically oppressed the Natives for the benefit of the Europeans 5.
By these means, Applicants reached their conclusion that there was a
"polar disparity" between Respondent's duties under Article 2 of the
Mandate and its conduct in the administration thereof 6, as opposed to
"close or doubtful issues" 7which might otherwise have arisen.
It will be patent that ail this amounts exactly to allegations of bad
faith in the sense under discussion. Failure to rnake "any substantial
effort" or "notable effort" to achieve the prcscribed purpose, and in fact
directing "efforts ... to the opposite end", can only mean that there has
been no bona fide exercise of the discretionary fonction, but inaction and
action in an unauthorized sphere, with an unauthorized purposein mind,
known to be such and therefore ma/a fide.
28. In the result, Applicants' attitude in the Memorials regarding the
discretionary element in Article 2, did not appear to differ substantially
from that adopted by Respondent. Their "clear and rneaningful norms"
related merely to the purpose to be pursued by Respondcnt, and did not
prescribe any objective mies regarding methods to be adopted in that
regard. As regards the methods employed by Respondent, Applicants'
allegations amounted to a charge of bad faith in the sense aforestated.
And they made no suggestion whatever as to any basis for j~ridical
determination of the "close or doubtful issues" which could arise 1f they
should fait to establish the charge of bad faith. This then was the position
as it appeared from the Memorials, and in the Counter-Memorial Respond
ent answered Applicants' charges on that basis.
8
29. In the Reply, as has been seen ,Applicants commence their tre~t
ment of this subject by denying that the dispute between the Parties
"hinges on the issue of Respondent's 'good or bad faith', rather than·upon
an objectiveevaluation of its conduct" 9• And they state that "Respond-
1
I, pp. 108 and 162.
2 Ibid., p.130.
1 Ibid.,p. 143.
• Ibid.,p. 108.
' Vide Il, pp. 392-394.
• I, p. r66.
7 Ibid., p.104.
8 Vide sec. A, paras. :.:-4, supra.
• IV, p. 257. (ltalicsadded.) SOUTH WEST AFRICA
ent's policy and practice of apartheid /ails to promote the well-being and
social progress of the inhabitants of the Territory" 1•
Their problem, however, remains, namely how to establish by means of
an "objective evaluation" that a particular policy or practice does not
promote well-being and progress to the utmost-a matter which is
essentially one of opinion and evaluation incapable of objective proof:
and it is perhaps symptomatîc thereof that, apparently in order to avoid
"close or doubtful issues" and the problems inherent therein, their
proposition as above-cited is directed not at failure to promote "to the
utmost", but, so it seems, at failure to promote at all 2_ As will be shown
their basic approach to this problem remains the same as in the Memorials.
Thus Applicants in the Reply, too, in the first place, attempt to find
some criterion which could, by objective application to Respondent's
policies, provide a conclusion of violation of the Article in question. In
this regard they say that Respondent's policy-
"... violates Respondent's obligations, as stated in Article 22 of the
Covenant of the League of Nations and in Article 2, paragraph 2, of
the i\Iandate, as measured by the relevant and generally accepted legal
norms and standards described in the M emorials and in this Reply 3"
(italics added);
and that certain (factual) "assumptions" underlying Respondent's policy
are, inter alia,
"... violative of norms, as accepted by international custom and
as reflected in the general principles of law universally recognized by
civilized nations 4". (Footnote omitted.)
They refer to their analysis in the Reply of "... the nonnative and
objective legal standards governing the interpretation and application
of Article 2, paragraph 2. of the Mandate ... " 5.and they contest the
contention which they attribute to Respondent as their Proposition
No. 4, that "... there exist ... no legal norms or standards for judging
the actions which Applicants contend to be in violation [of Article 2 of the
Mandate]" 6•
30. Applicants' attempt ta find some objective legal norm or standard
by which to measure Respondent's policy, is, as has been seen, nothing
new. As regards the contents and sources of the suggested norms, however
the Reply seeks to make out an entirely new case. lt will be recalled that
in the i\lemorials Applicants relied upon a series of "clear and meaningful
norms" which they sought to derivc from certain provisions of the United
7
Nations Charter • Respondent's demonstration that these so-called
norms, even if they existed, did not materially affect the discretionary
nature of Respondent's powers 7, seems to have sounded their death
knell. No attempt is made in the Reply to refute Respondent's argument
in this regard. No further reliance is placed on Article 76 of the Charter,
1
IV, p. 277. {Ita!ics added save for the word "~partheid".}
2 Vide para. 27, supra, and para. 39, illfra.
3 IV, p.519.
• Ibid.,p. 27 1.
' Ibid., p. 26t.
6 Ibid., p. 477.
7 Vide para. 26, supra. REJOINDER OF SOUTH AFRICA
which was one of the sources of these "clear and meaningful norms" 1.
And in regard to the other Article relied upon, viz., Article 73, Applicants
say:
"Itisnotnecessary, for the purposesofthepresent Proceedings, to
consider in detail the scope of Respondent's obligations under
Article 73 of the Charter, inasmuch as Applicants' Submissions do
2
do not allege violations by Respondent of such obligations .''
Reference will be made below to the role now alleged to be played by this
Article 3• Where Applicants in their Reply still refer to their "clear and
meaningful norms", they do so only by way of formai reaffirmation 4•For
all practical purposes, these "norms" may consequently now be dis
regarded.
31. In their Reply Applicants now introduce a new norm, namely their
so-called "norm of non-discrimination or non-separation". This suggested
norm, unlike those relied upon in the Memorials, would, if it existed,
provide an objective criterion for measuring Respondent's policies.
However, for the reason stated above 5, Respondent submits that the
"norm of non-discrimination or non-separation" does not exist, certainly
not as a part of the Mandate.
32. The question then arises whether the "norm of non-discrimination
or non-separation" represents Applicants' only attempt at introducing a
fresh objective norm or standard in their Reply. It is remarkably difficult
to answer this question. Reference has been made to Applicants' pur
ported reliance on the exi!'"tenceof (in the plural) "legal norms and stand
ards", or ''normative and objective legal standards", which are allegedly
set out in the Reply 6,In various parts of the Reply there are further
suggestions that therc exist, apart from or in addition to the alleged
"norm of non-discrimination or non-separation", standards which can
be applied by a court in determining whether or not particular policies
"promote to the utmost". Applicants say, for instance, that, "in dealing
with po\itical, economic or humanitarian issues",
"... courts-both international and national~customarily apply
knowledge extracted from experience, from social, physical and
political sciences, and from all other sources from which man derives
guidance in the conduct of his life and relationships with others 7'';
that courts "... draw upon humane, moral and political standards in
8
deriving the sources of law" ;and that-
"[j)udicial process ... draws upon humane, moral and political
standards as sources of law, and does so particularly where legal
8
rights or duties are not explicitly defined ".
It is to be noted that the above contentions are advanced by Applicants
in purported answer to Proposition No. 3 as formulated by them, which
1
Vide I,p. 107. Art. 76 (c) is referreto at IV, p.501, but purely with reference
to the contents o{ trust territmîes agreements.
2 IV, p. 517.
3 Vide para. 35, infra.
• Vide, e.g., IV, pp. 404 and 519.
·' Vide Part III, sec. B,supra.
6 Vide para. 29, supra.
7 IV, p. 485.
8 Ibid., p. 487.166 SOUTH WEST AFRICA
includes Respondent's argument that "compliance with [Article z] could
be judged by the Court only upon the basis of Respondent's good or bad
faith" 1_
Furthermore, in seeking to show that "Respondent's policy and prac
tice of apartheid faits to promote the well-being and social progress of the
inhabitants of the Terri tory", AppJicants rely, inter alia, on the following
"relevant evidence", viz., "[j]udgments of qualified persans", "[o]fficial
views of Govemments" and "[o]verwhelming weight of contemporary
2
authority in the political and social sciences" •
ln a particular sphere, i.e., regarding security of the persan, rights of
residence and freedom of movement, Applicants contend that findings
and conclusions of the Committee on South West Africa and of the I.L.0.
Ad Hoc Committee on Forced Labour" ... confirma generally accepted
current international norm or standard, according to which Respondent's
obligations should be measured ... " 3_
To summarize, it would appear that Applicants are relying, in addition
to the "norm of non-discrimination or non-separation", also on further
undefined "norms and standards".
33. Like the "norm of non-discrimination or non-separation", the
above-mentioned undefined "norms and standards" are said to have
arisen subsequently to the creation of the Mandate. Thus Applicants say:
"The obligations created by Article 22 of the Covenant and the
Mandate must, accordingly, be construed in the light of current
standards, as deterrnined by contemporary knowledge, conditions
and requirements 4";
they refer to the" ... practical necessity and wisdom of applying current
standards in i5terpreting obligations, such as those embodied in the
Mandate ... " ;and they say that-
"[t]he relevance of the evolving practice and views of States, growth
of experience and increasing knowledge in the political and social
sciences, to the determination of obligations bearing the nature and
purpose of the Mandate in general, and Article 2, paragraph 2,
thereof in particular ... is of the very essence of the obligation
itseJf6".
34. In considering the relevance or significance to be attached to the
undefined "norms and standards", Respondent is at the outset faced with
the problem that their alleged juridical nature, like their alleged content,
is not specifically examined or dealt with in the Reply. In the absence of
any specific contentions on Applicants' part, Respondent therefore has
no option but to examine this matter purely on principle in the light of
the broad purpose for which Applicants rely on the undefined "norms and
standards".
ln order to have any relevance at all to Appticants' case, these "norms
and standards" must in some way define, explain or give ëontent to
Respondent's obligations under Article 2, paragraph 2, of the Mandate.
It would appear, however, that the expression ''norms and standards" in
1 IV,p. 477.
z lbid.,p. 277.
3 Ibid., p. 475. Vide also pp. 413-414 and 417-418.
• Ibid.,p. 514.
5 Ibid., p. 513.
6 Ibid .p. 512. REJOINDER OF SOUTH AFRICA
this context embraces two essentially different concepts. In the first
place, the expression "norms and standards" may be used to signify
legal rules which in objective terms define Respondent's obligations under
the Mandate. For convenience Respondent will refer to such "norms and
standards" as "legal norms", or just "norms". The specific provisions of
Articles 3 to 5 of the Mandate would then comprise legal norms in this
sense. lt is apparently in this sense also that Applicants use the expression
"norm of non-discrimination or non-separation". And it is only a legal
norm in this sense that could provide a criterion which could, by objective
application to Respondent's policies, determine whether or nota violation
of Article 2, paragraph 2, has been committed.
However, the expression "norms and standards" may be used also to
connote an entirely different concept. lt may refer only to practices,
policies or theories of government applied by States, or advanced or
propagated by politicians, experts, authorities, scientists, moralists, etc.
For convenience, and in order to distinguish this concept from that
expresscd by the term legal norm, Respondent will refer to such practices,
1
policies or theories as ''standards'' .
lt is apparently in this sense that Applicants refer to "the most minimal
standards universally accepted {except by Respondent) as governing the
relations between a State and its subjects" 2, and to "the generall_r
accepted political and moral standards of the international community" .
35. It will be apparent that it is in their legal effect rather than their
possible content that legal norms differ from standards. By definition,
standards are not legal rules objectively enforceable against Respondent,
inasmuch as the acceptance of particulai- standards even by a large
number of scientists, politicians, authorities or States, cannot, perse and
in the absence of consent on Respondent's part, render such standards
legally binding upon Respondent. Since the present discussion concems
contentions advanced by Applicants in an attempt at finding objective
criteria for evaluating Respondent's policies, it follows that standards do
not call for consideration here; these will, however, be dealt with later ~
At present, it is only as regards possible objective legal norms that Ap
plicants' expression "norms and standards" calls for comment.
Before seeking to apply any such norm, Applicants would of course
have to establish that it is of a legal nature. In addition, however, no
such norm can be invoked in these pr5ceedings unless it formed a part of
the provisions of the Mandate • Since Applicants' undefmed "norms",
like their alleged "norm of non-discrimination or non-sefaration", clearly
and admittedly were not included in the provisions o the Mandate as
originally framed, they could subsequently have inhered therein only
by virtue of some process of amendment of the Mandate. For the reasons
already given, it is submitted that no such process of amendment occurred
in respect of the "norm of non-discrimination or non-separation".
1The result is that Respondent has separated the concepts comprehended in the
expression "norms and standards'' and called them "norms" and "standards"
respectively. Respondent must not, however, be understood as suggesting that
Applicants have in any way clearly distinguished either between the terms or be
tween the concepts expressed by them.
2 IV, p. 512.
3 Ibid.,p. 271.
• Vide para. 39, illfra.
~ Vide sec. B, para. 3, supM.168 SOUTH WEST AFRICA
The samc considerations apply a /orticri to Applicants' undefined
"norms". ln the first place, there is the very important circumstance that
thev are undefined. One cannot conccive of an amendment of the :Mandate
consisting of the introduction of "norms", the content of which is not
stated. Secondly, Applicants have not produced any evidence that
Respondent has consented to the introduction of undefmed "norms" into
the Mandate. Their only attempt in this direction consists of a contention
that certain unformulated "standards" (apparently not used in the re
stricted sense applied to this expression by Respondent) which may have
been laid down by Article 73 of the United Nations Charter, "in so far as
the provisions of Article 73 ... may be in advance of what was current
thought in 1920" 1. should be read into the Mandate 2•This contention
has already been dealt with 3,and for the reasons there set forth Respond
ent submits that it iswithout substance.
Thirdly, the "evidence" adduced by Applicants, consisting largely of
the views of "qualified persons", "governments", and "contemporary
authority in the political and social sciences" 4, does not even purport to
establish the existence of any "norms" (or, for that matter, "standards").
This evidence frequently consists merely of condemnation of Respond
ent's policies, or certain aspects thereof (including aspects not applied in
South West Africa) no matter on what grounds-the grounds being very
often mere wrong appreciation of the facts, as will be shown.
36. It may be convenient to refer at this stage to a further alleged
source of "norms", namely the Permanent Mandates Commission. Appli
cants say that, as a consequence of the Commission's fonctions of super
vision in respect of Mandatoiy administration,
"... there evolved perennially what may be described as a 'concrete
content' of Mandates, the substance and form of which are embodied
in the Commission's minutes 5".
This "concrete content" was allegedly reflected in pronouncements of
general principles, but was more frequently, according to Applicants,
" ... developed through continuous application of general criteria to
concrete factual situations" 5•
ln this manner, it is contended, the Commission-
"... developed and interpreted legal principles, based upon the
Mandate instrument and the Covenant, and applied such legal
principles to specific situations 6",
and developed-
"... a body of practice and doctrine which furnish the basis, inter
alia, for judicial determination concerning the scope and nature
of Respondent's legal obligations under the terms of the Mandate
for South West Africa 6".
Quite clearly the Permanent Mandates Commission ncver performed a
fonction of the sort contended for by Applicants in the above passages.
Applicants seek to justify their contention by repeatedly asserting that
1 IV,p. 517.
2 Ibid.,pp. 516-518.
3 Vide sec.B, paras. 30-35, supra.
• Vidr para. 32, supra.
5 IV, p.251.
6 Ibid., p. 253. REJOINDER OF SOUTH AFRICA
the Commission was a "quasi-judicial body" 1, which, in a sense, it of
course was. However, in order to justify their contention that the Com
mission gave a "concrete content" to mandates, Applicants would have
to go further, and show not only that the Commission was a quasi-judicial
body, but also that it was a legislative or quasi-legislative body-at least
in the sense that, with prior consent of the interested parties, including
the ;\Iandatories, it could alter or amend the contents of the mandates.
This Applicants have not sought to do.
ln fact, the task of the Commission was, as Applicants point out 2,a
twofold one of "supervision and co-operation". The nature of the two
aspects of the task was summed up and contrasted by Quincy Wright as
follows:
"In supervising the mandates the Commission has felt obliged to
limit its criticism by law. It does not censure the mandatory unless
the latter's orders or their application are in definite conflict with
the mandate or other authoritative text, but if such a conflict is
reported by the Commission and the report is adopted by the Coun
cilthe mandatory is bound to recognize it. lt becomes an author
itative interpretation oi the 1atter's obligations ...
ln co-operating with the mandatories, however, though the
League's powers are more limited, the scope of its suggestions is
infinitely wider. It has not considered itself limited by authoritative
documents but has formulated standards of good administration
from the widest sources, and suggested whatever practical steps it
deems expedient to give them effect. Such suggestions, however,
even when indorsed by the Council, never have more than the
character of advice. The mandatorv is free to differ from them,
though if based on an adequate understanding of the situation he
will do well to consider them 3."
The former task (supervising of Mandates) was a quasi-judicial one,
whereas the latter (co-operation with the Mandatories) was not. A recom
mendation made by the Commission in performing its task of supervision
may, if adopted by the Council (and perhaps even if not), be regarded as
an authoritative interpretation or application of the provisions of the
Mandate. As such it may have had precedential value in later proceedings
before the organs of the League or even the Court, but it would of course
not be binding on any of them. In practice such interpretations normally
related to the specific dutics incumbent upon the Mandatories under the
various mandates. The Commission did not attempt to give a specific
content to the general provisions such as Article 2, paragraph 2, of t~e
Mandate for South West Africa-indeed, they expressly recognized thetr
inability in this regard, acknowledging that widely different policies could
be encompassed by the terms of the Article 4.
In regard to the Mandatories' duties under Article 2, paragraph 2,
of the Mandate for South West Africa and similar provisions in other
mandates the Commission was normally called upon only to give practical
1
2 IV, pp. 247,248,249,251 and 253.
ibid .. p250.
J Wright, Q.,Mandates under the League oj Nations (1930), p. 197.
• Vide authoritiesquoted in Il, pp. 387-388 and particularlythe statement by
1\l. Orts read in the contexof the debate as a whole (P.M.C., Min., IX. p. 134).
Vide also the referencto Bentwich, para. 21.supra.170 SOUTH WEST AFRICA
advice pursuant to its functions of co-operating with the Mandatories.
Such practical advice, although of great weight as the expression of
opinion of an expert and eminent body, was clcarly not binding on the
Mandatory to whom it was addressed, and a fortioridid not lay down legal
rules to be applied in future by al! Mandatories. At most it set forth
"standards" (in the sense used by Respondent) to which the Mandatories
may have been obliged to have regard in accordance with the principles
1
considered below •
lt will be apparent, therefore, that neither of the two functions per
formed by the Permanent Mandates Commission served to give a "con
crete content" to the provisions of the Mandate, and in particular not to
Article 2,paragraph 2, thereof.
Applicants suggest, to the contrary, that every comment of the Com
missiqn must be taken as the application of a rule of law (apparently
created ad hoc by the Commission itself).
Thus they say: "The Commission_ .. considered itself a quasi-judicial,
non-political body, the fonction of which was to apply standards of a
legal nature to specific policies and acts" 2, and "The Commission, as a
quasi-judicial body, gave expression to objectively dctermined con
clusions of a IegaI nature ... " 3•
It is true that the Commission did apply the express provisions of the
Mandate (which may perhaps be described as embodying "standards of
a legal nature") to specific policies and acts. lt is wrong, however, to
suggest that this was the only function of the Commission, to the ex
clusion ofits task of co-operation with the Mandatories. 1t is consequently
equally wrong to suggest that every utterance of the Commission amoun
ted to an expression of an "objectively determined conclusion of a Jegal
nature". And finally, as noted above, it is wrong to suggest that anything
done by the Commission served to give the mandates a "concrete con
tent" which they had not possessed before.
37. It··follows from the above considerations that the "eyidence"
tendered by Applicants cannot serve to establish an amendment to the
)1andate consisting of the introduction therein of objective "norms"
governing the exercise of Respondent's powcrs. The true relevance (if
any) of such "evidence", andof Applicants' suggestionsregarding "stand
ards" in that regard, will be considered below 1.
38. For the reasons aforestated, any attempt in the Reply to establish
the existence of undcfined "norms" governing Respondent's duties under
the Mandate, must be held to have failed. Since, in Rcspondent's sub
mission, the "clear and meaningful norms" originally raised in the
Memorials, and the "norm of non-discrimination or non-separation' ·
newly raised in the Reply, also do not assist Applicants to overcome their
problem arising from the discretionary nature of Respondent's powers \
the question remains whether any further method of escaping the dis
cretionary sphere is essayed in the Reply.
The answer is that Applicants abide bv their allegations which, on
analysis, amount to a charge of bad faith. ·Thus although they prefer to
1 Vide para. 39, infra.
1 IV, p. 249.
3 Ibid., p. 253.
• For the reasons dealt with in sec. B and para.2(\supra. REJOINDER OF SOUTH AFRICA
171
say that they arrive at a result of "fails to promote" by a process of
"objective evaluation", and although they disdain "good or bad faith"
as basis of their case, their c1arge in truth still rests on this basis, as has
been demonstrated above .
In regard to this aspect of their case Applicants say that questions of
intention or bad faith may be decided by inference from other facts 2•
This may be conceded. However, ail the rules for reasoning by inference
would then apply, and particularly the two quoted in the Counter
Memorial, viz.,
"1. The inference sought to be drawn·must be consistent with ail
the proved facts. If it is not, the inference cannot be drawn.
2. The proved facts should be such that they exclude every reason
able inference from them save the one sought to be drawn. If they
do not exclude other reasonable inferences, then there must be a
doubt whether the inference sought to be drawn is correct 3."
Applicants' attempt to restrict the facts to be considered by the
Court 4, obviously conflicts with these principles, and must therefore be
rejected.
39. It is only on the above basis-i.e., of enquiring into good or bad
faith by a process of inference-that the unformulated modern "stand
ards" 5,and the "evidence" relied upon as establishing their existence,
including in such "evidence" the views of political and scientific author
ities, could be relevant. So for instance, if the evidence in this respect
should establish that Respondent's policies are so unreasonable, in
humane or unscientific, or fail so lamentably to measure up to universally
accepted standards, that no governmental authority honestly applying
its mind to the problems of the Territory could corne to the conclusion
that thev are the most suitable method for "promoting to the utmost",
then an ·inference of mala fides in the sense under discussion might be
justified. But anything falling short thereof would not be sufficient. In
considering the type of enquiry that would be necessary to establish bad
faith in an analogous situation (the nature of which appears from the
passage quoted), Sir Hersch Lauterpacht said:
"Any attempt to embark upon the examination of the question
whether a Government bas acted in bad faith in determining that a
matter is essentially within its domestic jurisdiction may involve
an exacting enquiry into the merits of the dispute-an enquiry so
exacting that it could daim to determine, with fuJJassurance, that
the jnridical view advanced bv a Government is so demonstrably and
palpably wrong and so arbitrary as to amount to an assertion made
in bad faith. Only an enquiry into the merits can determine that
although an assertion made by the defendant Government is not legally
well-founded it is nevertheless reasonable; or that although it is not
reasonable, ît is not wholly arbitrary 6." (Italics added.)
t Vide sec. A, paras. 4-6,supra.
2 IV, p. 257 and sec. A. paras. 4 and 6, supra.
3 Rex,·. Blom, 1939 A.D. r88 at pp. 202-203 as quoted in II, p. 145. Vide also
Cutain Expenses of the U niled Nations (Article I7, paragraph 2,of the Charter),
Aduisory Opinion, T.C.J. RepOYtS 1962, p. 151 at p.191 per Sir Percy Spender.
• Vide sec. A, para. 25,supra.
6 As distinct from "norms"-vide para. 34, supra.
CertaillNorwegian Loans, judgment, l.C.j. Reports 1957, p. 9, at p. 54·172 SOUTH WEST AFRICA
It would consequently not assist Applicants to demonstrate merely that
some modern commenta tors in the fields of science and politics differ from
Respondent on the question of the best method for promoting well-being
and progress, evcn if the adverse views should be voiced by large majori
ties in political bodies and should be extreme and vehement in their con
tent. The crucial question remains-is there scope for honest ditference of
opinion,)
Applicants seem to show an awareness of the nature of the onus rcsting
on them when they contend:
"... a policy so extreme in its discriminatory and repressive char
acter as apartheid, must be found to violate even the most minimal
standards universally accepted . .. as governing the relations betwcen
a State and its subjects 1". (Italics added, save for the word "apart
heid".)
If "apartheid'' or separate development were in truth the policy of delibe
rate oppression alleged by Applicants, it seems to Respondent that this
statement would, as a vague generality, be true 2••But it serves at the
same time to emphasize the necessity for Applicants to prove as a fact
the deliberate oppression alleged by them. For this purpose "evidence"
in the form of views expressed by political bodies and other commenta tors
who have never properly investigated the specifically relevant facts,
cannot be of real assistance to Applicants' cause. They can hardly serve
to refute Respondent's demonstration, in the Counter-Memorial and
herein, based on careful exposition and analysis of all the specifically
relevant facts, that its policies are in truth aimed at promotion to the
utmost of the well-being and progress of all the, inhabitants of South
\Vest Africa, and that oppression is as contrary to Respondent's own stand
ards as to those of any other govemment. ln so far as the "evidence"
tendered by Applicants is directed at showing that premises from which
Respondent proceeds, or methods employed by it, are fallacious, wrong,
or contrary to "the overwhe1ming weight of authority" 3, Respondent
submits that the treatment of the facts in the Counter-:!llemorial and
further herein, amply demonstrates that there is considerable room for,
and de facto existence of, serious and extensive difference of opinion on
the merits of the various political, social, economic and other theories
so categorically propounded by Applicants. Indeed, despite their above
quoted contention, Applicants do not seriously try to establish that any
of these various theories is in truth "universally accepted". Con
sequently the evidence concerned, in Respondent's submission. wholly
fails to establish a violation of the discretionary obligation imposed by
Article 2, paragraph 2, of the .Mandate.
40. Before proceeding to a systematic consideration of Applicants'
factual averments in support of their charge as analysed above, there
remain two of the Propositions formulated by Applicants which have
not been dealt with specifically by Respondent. Thev will be considered
in the next succeeding paragraphs. ·
41. Proposition No. 5 reads:
1 IV, pp. 51 r-512.
2 Taking due account of the fact that standardsuniversally "accepted" are not
necessarilyapplied.
3 Vide, e.g., IVpp.271 and 302-3r2. REJOINDER OF SOUTH AFRICA
173
"If any [legal] norms or standards [for judging the action which
Applicants contend to be in violation of Article z] were applicable,
they would, Respondent implies, be those governing1as of the time
the l\fandate was entrusted to Respondent ."
This proposition does not accurately reflect Respondent's argument.
Respondent certainly suggested that the Mandate falls to be interpreted
in the light of circumstances existing as at the time of its creation-a
suggestion which, it is submitted, is of indubitable validity 2•If Proposi
tion No. 5 seeks to convey no more than the said suggestion, it will
suffice to say that Respondent has already dealt with Applicants' argu
3
ment in reply to such proposition •If it does seek to convey something
more, then it goes beyond what was argued in the Counter-Memorial.
ln particular, Respondent does not concede the possibility that Jegal
norms may exist (or may have existed) which would enable a court to
passa judgment on whether a particular policy does or does not "promote
to the utmost" in terms of the l\fandate. An enquiry as to the point of
time at which any such norm must have existed in order to be applicable,
is consequently of a purely hypothetical nature, and no such enquiry was
undertaken in the Counter-Memoria\. The "standards" now sought to be
relied upon by Applicants, in the sense as Respondent above understands
thern 4,would naturally corne into consideration as they exist at the time
of their application-provided that the application is confi.ned to the
limits and purposes above indicated 5,and is not sought to be extended
to "interpretation" of, and giving a "content" to, provisions of instru
ments entered into some 40 years earlier.
42. Proposition No. 6 reads:
"Even if current standards existed and were deemed applicable,
Respondent's policy with respect to the inhabitants of the Territory
6
is asserted to be in compliance with them ."
Respondent did not make a general assertion of the nature set out in
this proposition. Both the Memorials and the Counter-Memorial were,
in regard to the matter under discussion, only concerned with the question
whether certain specific provisions of the United Nations Char7er could
be invoked to interpret the Mandate. Applicants said yes : Respondent
no 8•The matter of "current standards" (as distinct from specific pro
visions of the Charter) had not yet arisen: that was only raised in the
Reply. Consequently Respondent was not called upon to, and did not,
formula te an attitude on the hypotheses that "current standards existed
and were deemed applicable". ln any event such formulation could not
be made purely on principle: Respondent would fi.rst have to know what
the specific content is of any alleged standard relied upon by Applicants
before making any submission on whether its policy· is in compliancc
therewith or not.
With reference to the specific provisions of the Charter relied upon in
1 Vide, e.g., IV, pp. 477-478.
z Vidi, sec.B, para. 6, supra.
J Ibid., paras. 26•36, supra.
• Vide para. 34,supra.
5 Vide para. 39,supra.
• IV, p. 478.
7 I, pp. 104-roS.
" II, p. 395. 174 SOUTH WEST AFRICA
the :.'lfemorials ,espondent contended tha t its policies had "in fact been
designed to give effect to the principles underlying" such pro,·isions 2•
Applièants have not attempted specifically to controvert this contention.
Instead, their argwnent in reply to Proposition No. 6 as formulated by
them, amounts to a contention that Respondent's policy is contrary to
the alleged ''norm of non-discrimination or non-separa tion'' as defined by
Applicants 3 ,and that it violates their undefined "norms and standards'' 3.
As regards the first-mentioned norm, Respondent has never contested
that, if it should exist, Respondent's policies would be contrary thercto 4.
As regards the undefined "norms and standards", it is impossible for
Respondent to deal with any of them individually, for the very reason
that they are undefined and unformulated. Respondent can only say in
general, for the reasons indicated above 5. that in its submission Ap
plicants have not established the existence of any norms or standards
which are in truth universally accepted and with which Respondent's
policies, as they actually exist, are in conflict.
In this regard it may further be recalled that in the Counter-?.lemorial
Respondent did state the following:
"It is ... not true, as is often represented, that in its moral out
look and idealistic objectives the policy of separate development
runs counter to modern conceptions of human rights, dignities and
freedoms, irrespective of race, colour or creed. On the contrary,
these very conceptions underlie the policy, and its objectives are
to achieve an end result obviating all domination of groups by one
another 6."
Respondent abides by this statement, which falls to be considered in
regard to the factual aspects dealt with hereinafter. The only purpose of
referring to it now, is to stress once more the distinction between, on
the one hand, the conceptions themselves as matters of gcneral principle
or idealistic objective, and, on the other hand, methods designed to
realize them in practice in given situations. lndeed the whole paragraph
in the Counter-Memorial of which the above statement forms a part, is
devoted to drawing this distinction 7.In so far as some recent formulations
in resolutions of political bodies, or even in international agreements,.
prospective or real, may be read as seeking to lay down that methods
found appropriate in some countries are to be applied universally and
under all circumstances, including those pertaining to South West Africa
and South Africa, Respondent has made no secret of its disagreement
with such notions, or·of the fact that its policies do not comply therewith.
ln truth, however, as will later be demonstrated, most formulations
contain explicit or implicit qualifications which, in their underlying ratio,
find common ground with the approach inherent in Respondent's policies.
1Arts. 73 (a) and (b), 76 (b) and (c), of the Charter of the United ê\'ations.
2Il, p. 397.
3IV, pp. 518-519.
• Vide sec. A, paras. 8 and 9, supYa.
5 Vide para. 39, supra.
6 Il, p.467.
' Vide particularly the very next sentence at p. 467. Section D
INTRODUCTION TO THE TREATMENT OF THE FACTUAL
ASPECTS OF APPLICANTS' CHARGE
r. In the preceding sections Respondent analysed and dealt with the
Jegal basis of Applicants' charges relating to alleged violations of Article 2,
paragraph 2, of the Mandate. As was seen 1Applicants' case now em
braces two aspects. In the first place, they rely on an alleged "norm of
non-discrimination or non-separation". The issue in regard to this alleged
norm is a purely legal one, i.e., whether the "norm" exists or not. If it
possesses the content ascribed to it by Applicants, and if it can be
regarded as embodied in the Mandate, Respondent's admitted policies of
differentiation would be in contravention thereof, leaving no further
dispute between the Parties as regards Applicants' Submissions Nos. 3
and 4 2•In regard to this aspect of Applicants' case, Respondent conse
quently confines itself to the contention, developed in section B above,
that no "norm of non-discrimination or non-separation" as defined by
Applicants is embodied :n the Mandate, or is otherwise bincling on
Respondent.
2. Applicants, however, in addition to relying ori the alleged norm of
"non-discrimination or non-separation", still make the allcgation that
Respondent's policies in fact fail to promote well-being and progress, and
present a mass of material in attempted substantiation thereof. The
Jegal basis of this allegation was considered in section C above, and the
factual aspects thercof sti!l require consideration. The present section
serves as an introduction to Respondent's treatment of the said factual
aspects, which will be dealt with in more detail in the succeeding sections
of this Part of the Rejoinder. However, before proceeding to a discussion
thereof, Respondent wishcs to draw attention in the following paragraphs
to some matters of a general nature concerning this part of the case.
3. Applicants' expositions in the Reply of the facts relied upon by them
contain a great deal of repetition. To some extent this is unavoidable.
Thus. they present their case on the facts by dealing first with the general
principles of Respondent's policy and thereafter with specific measures
applied in implementation thereof. The same course was adopted in the
Counter-Memorial. This method of treatment necessari\y invo\ves a
measure of repetition as between the general part and the parts dealing
with the various aspects of implementation. A further source of repetition
arises from Applicants' allegations regarding the existence of a "norm of
non-discrimination or non-separation". This "norm" is repeatedly
mentioned by Applicants. specifically or by reference, in their treatment
of the general principles as well as in the different sections of the Reply
dealing with the varions specific aspects of government.
Repetition is also caused by the manner in which the Reply has been
drafted, and in particular by the incorporation thercin, by reference, of
' Vide sec. A, para. w, supra.
t Ibid., paras. 7-8, supra.176 SOUTH WEST AFRICA
various reports, articles, comments, etc. This often results in the same
JX>intbeing dealt with at various places and from various angles (some
times inconsistent ones).
Respondent's endeavour will be to avoid, as far as practicable, any
corresponding repetition, and to deal comprehensively only once with
each point raised by Applicants, even if it appears more than once in the
Reply. However, some repetition in the Rejoinder will be inevitable,
both as a result of the form taken by the Reply, and by reason of the
general arrangement of material, which arrangement will follow that
employed in the Counter-Memorial to which reference is made abovc.
4. Tt is also to be noted that Applicants in the Reply to a large extent
change the ground of their complaints. Respondent has already drawn
attention to the fact that, for instance, the "norm of non-discrimination
or non-separation", on which Applicants now rely so heavily, is an
innovation in the Reply 1•Further specific instances of the introduction
of new complaints will be pointed out as and when they are encountered
in Respondent's treatment of the facts. Although Respondent submits
that it is not obliged in law to dcal with charges thus raised for the first
time in the Reply, it will, however, in view of the importance of this case,
and the demonstrable untenability of Applicants' charges, including those
newly introduced, not adopt a technical attitude of refusing to deal with
such charges. Nevertheless, Respondent wishes to point out that its
treatment of such charges canin the nature of things not be as complete
or comprehensive as it would have been had they been raised properly
and timeously, and Respondent respectfully asks the Court to bcar this
circumstance in mind.
5. One further instance of a shifting of ground by Applicants is
cvidenced by the attitude adopted in th~ Reply towards the Colo2red and
Baster groups. This matter has been dealt with above , and for the
reasons there set out Respondent will, in the following discussion of the
facts, refrain from presentîng a systematic or compJete survey in regard
to such groups. References to them will accordingly be only for the
purpose of explanation or example, or to answer some specific point or
allegation made by Applicants.
6. In the course of Respondent's treatment of the facts, reference will
again, as in the Counter-Memorial, be made to practices, policies and
events in other countries, including the Applicant States and South
Africa. Respondent has already 3 dealt with the attitude which Applicants
adopt in the Reply in regard to these matters. Briefly, Applicants seem
to accept that reference to circumstances in South Africa is permissible
for purposes of expianation or illustration, or to answer some specific
point raised by Applicants. On this aspect the Parties may consequently
be taken to be ad idem, and further references to South Africa in the
following sections will be on the same limited basis as heretofore 4.
As regards events in other countries, however, Applicants contend that
any reference to such events is irrelevant in the present proceedings. For
1 Vide sec.A, para.8, supra.
2 Ibid., paras.r1-15,supra.
3 Ibid., paras.21-24,supra.
• ibid., para. 24supra. REJOINDER OF SOUTH AFRICA 177
the reasons set out elsewherc in this Rejoinder 1, Respondent submits
that Applicants' contention in this regard is untenable. Further reference
will consequently be made below to laws, policies, measures and circum
stances in other countries. As before, this will be clone only by way of
example, comparison or illustration-to show the similarity of problems
found elsewhere in the world, and to compare the various methods
designed to solve them, or to show the contrast between conditions in
South \\lest Africa and other terri tories, necessitating. differences of
approach in the framing of policies of legislation and administration, or
to render possible a measure of comparison of standards of achieYement in
2
comparable circumstances •
7. Reference was made above 3 to Respondent's intention to deal
separately in this Rejoinder with the general principles of its policies, and
the detailed application thereof in the spheres to which Applicants'
complaints relate. In pursuance of such intention, the next section hereof
(section E) will be devoted to the general principles of policy. The
specific aspects of implementation will be dealt with as follows:
Section F: Govemment and Citizenship.
Section G: Education.
Section H: The Economie Aspect.
Section I: Security of the Person, Rights of Residence and Freedom
of Movement.
1 Sec. A. paras.21-23, supra.
2 Ibid., para.2r, supra.
3 Vide para. 3, supra. Section E
CHAPTER I
ANALYSIS OF THE ISSUES
r. In accordance with the scheme explained above 1, the present
section relates to the broad principles of Respondent's policies, as
distinct from the application thereof in particular spheres, which is dealt
with in sections F to lbelow. The separate treatment of, on the one hand,
the principles of policy and, on the other, the application thereof, arises
from the following circumstances.
As has been seen, the case sought to be made against Respondent in
the Memorials in regard to the alleged breach of Article 2 of the Mandate
was one of bad faith in the exercise of its powers in terms of the said
Article, in the sense that it had assertedly pursued actions ostensibly
within its powers for a purpose not authorized thereby. Since bad faith
is by Hs very nature a fact of which no direct evidence can·normally be
produced, and the proof of which t'nust therefore almost necessarily be a
matter of inference from the circumstances, Respondent's case in the
Counter-Memorial was directed at establishing not only that the formula
of policy by Respondent's political leaders belied any suggestion
tions
of bad faith, but also that there was no justification for an inference such
as was sought to be drawn by Applicants. The method employed to this
end by Respondent was broadly the following. In the first place, Respond
ent furnished general ethnological and historical information regarding
the Territory and its peoples so as to provide a setting and context for
determination of the issues raised by Applicants 2• In Book IV of the
Counter-11emorial Respondent set forth the broad lines of its policy,
with its historical development and future aims. and placed it in its global
perspective by referring also to policies and developments in other
States in Africa and throughout the world. This then paved the way for a
consideration of Applicants' specific points of complaint. In regard to
these, Respondent's first task was to set the record straight by pointing
out, and correcting, instances of incomplete or inaccurate presentation of
the facts by Applicants. For the rest, Respondent filled in the picture by
providing information omitted by Applicants. In the result, Respondent
submitted that. when regard was had to the complete and correct set of
facts, against the background of the history and ethnology of the Terri
tory, and in the light of the general principles of policy formulated by
Respondent. no inference of bad faith on Respondent's part could be
drawn, but that, on thecontrary, the Court should conclude that Respond
ent had not in any way departed from the aîm of promoting to the
utmost the material and moral well-being and social progress of al! the
inhabitants of South West Africa.
\Vhereas Applicants did not in the Memorials deal separately with the
general principles of Respondent's policy, on the one hand 3, and the
2 Sec. D, supra.
3 Counter-Memorial, Book III (Il).
Save for some broad genernlizations at I, pp108•109 and 161-162. REJOINDER OF SOUTH AFRICA 179
methods of their application in particular spheres, on the other, they now
in the Reply follow Respondent's lead by devoting a separate section to
"Respondent's policy with respect to the inhabitants of the Territory" 1•
Indeed, the said section of the Reply forms the very core of Applicants'
case on the facts as it now stands. The nature of their case is dealt with in
the next paragraph.
2. In the Reply, as has been seen 2 ,Applicants deny that their dispute
with Respondent "... hinges on the issue of Respondent 's 'good or bad
faith' " 3, and they insist that their case rests on "an objective evalua
tion of [Respondent's] conduct" 3•
In order to substantiate this contention, Applicants now introduce
their alleged "norm of non-discrimination or non-separation". For the
reasons advanced above 4, Respondent submits that no such norm can be
read into the Mandate, or is otherwise binding on Respondent.
Howe\·er, in addition to, or apart from. relying on the "norm of non
discrimination or non-separation", Applicants still make the factual
allegation that °'Respondent's policy and practice of apartheid fails [sic]
to promote the well-being and social progress of the inhabitants of the
Territory" 5. In so doing, they appear to rely, inter alia, on certain un
formulated "norms and standards" 6•Respondcnt has demonstrated that
the case sought to be built by Applicants on this factual basis, in truth
still involves a charge of bad faith, although Applicants seek to avoid this
7
label . Indeed, Applicants themselves summarize the factual allegation
which they seek to prove as follows:
"As will be shown, Respondent's policy and practice with respect
to each of these aspects of life, is [sic] directed toward the primary
end of assuring an adequate 'Native· labour supply in the Territory,
particularly in its 'White' Police Zone (comprising more than seventy
percent of the Territory) subject always to the condition that, in the
words of Respondent's Prime Minister, 'There is no place for him
[i.e.,'the Bantu'] in the European community above the level of
certain forms of labour' 8."
Furthermore, after setting forth the general purport of their allegations
regarding specific aspects of Respondent's policy, viz., those relating to
education, the economic aspect, political rights, and rights of security,
residence and movement 9, Applicants say:
"In sum, under apartheid, the accident of birth imposes a manda
tory life sentence to discrimination, repression and humiliation. It ~s,
accordingly, in violation of Respondent's obligation, as stated m
Article 2, paragraph 2 of the Mandate, to promote to the utmost the
well-being and social progress of the inhabitants 10."
It is clear, therefore, that Applicants have in no way abjured their
1 IV, pp. 26o·36 r.
2 Vide sec. A, paras. 2-6 and sec. C, para. 29, supra.
3 IV, p. 257.
• Sec. B, supra.
6 IV, p. 277.
7 Vide $eC. C, para. 32, supra.
Vide sec. A, paras. 2- 10and sec. C, paras 32-39, supra.
8 IV, p. 2i2.
• Ibid., pp. 272-274.
10Ibid., p. 274.180 SOUTH WEST AFRICA
charges of deliherately oppressive conduct and bad faith on Respondent's
part.
3. The purpose of the present section is consequently to refutc Appli
cants' factual allegations, which, on analysis, amount to a charge of bad
faith, in sofar as such allegationsrelateto the broad principles of Respond
ent's policy of separate development. To establish a case in this regard,
Applicants rely on:
(a) inferences from facts, the decisive aspects of which are said by them
to be undisputed 1;
(b) "Relevant evidence" falling under the following heads:
(i) "judgments of qualified persons with first-hand knowlcdge of
South Africa and South West Africa" 2;
(ii)"official views of governments in ail parts of the world, ex
pressed, inter alia, through the United Nations as well as
through findings and resolutions of the United Nations itself" 3;
(iii) "overwhelming weight of contemporary authority in the
political and social sciences" 4 ;
(iv) "history and character of the system of 'homelands' or 'terri-
torial apartheid' " 5. ,
It is also particularly through the first three of the above classes of
"evidence" that Applicants seek to establish the existence of the un
defined "norms and standards", which constitute the first link in their
contention that Respondent must be held to be guilty of a breach of the
Mandate by reason of alleged violation of the "most minimal standards
universally acceptcd" 6• As noted above 7, this contention is but a
particular method whereby Applicants attempt to establish a case on the
hasis of a charge of bad faith on Respondent's part-the basis to which
Applicants. despite their every endeavour, remain confined.
4- ln the next succeeding chapters Respondent will deal with the
material referred to in the previous paragraph, and will demonstrate that
nothing contained in the Reply in any way casts doubt on the validity of
the contentions advanced in the Counter-Memorial. In this regard, much
the same method will be employed asin the Counter-Memorial: Respond
ent will correct the errors and supply the deficiencies in Applicants'
exposition, and will place the facts thus corrected in their proper per
spective and context. For this purpose, Respondent will consider the
allegations of fact referred to in paragraph 3 (a), supra, in conjunction
with the allegations and contentions regarding the system of homelands 8•
Respondent's exposition will show that although certain decisive facts
are indeed, as alleged by Applicants, "common cause", others are decid
edly not. In addition, Respondent will demonstrate that many decisive
facts and contentions are not effectively controverted, or even disputed,
by Applicants. In the result, Respondent will, it is submitted, refute Ap
plicants' contention of bad faith on Respondent's part.
1 IV, pp. 262-277.
2
3 Ibid.,pp. 277-293 and 593-599.
Ibid.,pp. 222-230, 277, 293-302, 502-503.
5 lbid., pp. 277, 302-312 and 600-6o2.
ibid.,pp. 277 and 312-326.
6 IV, p. 512.
1 Vide Part III, sec. C,para. 39, supra.
8 Referred to in para. 3 (b) (iv), supra. REJOIXDER OF SOUTH AFRICA 181
5. The treatment of the three other aspects of evidence, consisting of
judgments or views of various types of persons or bodies, will be ap
propriate to the nature of their relevance. In this regard it has been
shown 1that such views or judgments could be of assistance to Applicants
only ifthey should establish that Respondent's policies are so unreason
able, inhumane or unscientific, or fail so lamentably to measure up to
universally accepted standards, that no governmental authority honestly
applying its mind to the problems of the Territory could corne to the
conclusion that the policies are the most suitable method for "promoting
to the utmost". This amounts to saying that Applicants bear the anus of
establishing not only that sorne authorities are critical of Respondent's
policies, but that condemnation of such policies is so universal as to leave
no room for honest and informed differences of opinion regarding their
demerits. In the appropriate chapters, Respondent will demonstrate
that Applicants have signally failed to discharge this onus. This will be
done by showing not only that there in fact exist wide differences of
opinion as to the validity of the various theories on which Applicants rely
in their attempt to discredit Respondent's policies, but also that many
of the authonties quoted by them do not themselves even support
Applicants' contentions.
6. The arrangement of Respondent's argument which has been adum
brated in the preceding paragraph, will take much the same formas that
employed in the Counter-Memorial. The next chapter (Chapter II} will
be devoted to the origins and early development of Respondent's policies.
Chapter III will dcal with relevant indications afforded by developments
in other terri tories and States. The said chapter will serve, inter alia, to
shmv that the political theories propounded by Applicants have corne
nowhere near to being so successful in practice that Respondent could be
accused of bad faith, or even unreasonableness, in disputing their
soundness or universal applicability. In Chapter IV, Respondent will
briefly sketch the post-war adjustments to its policies, and will deal in
more detail in Chapter V with the isolated points raised in this connection
by Applicants in the Reply. This leaves as a final tapie the views and
theories of various persans and bodies 2, which will be discussed in
Chapters VI to XI hereof.
1 Sec. C, para. 39supra.
• Vide para. J (b) (i)-(iii), supra. CHAPTER Il
RESPONDENT'SPOLICIES:
ORIGINSAND EARLY DEVELOPMENT
1. lt is self-evident that no system of government can be properly
evaluated without regard being had to the setting within and the back
ground against which it operates. Since Applicants did not in their
Memorials furnish the necessary information in this regard, Respondent
remcdied the omission by providing a brief exposition of the Territory's
geography and history, and the ethnie charactcristics of its population 1•
ln the Reply, Applicants make hardly any reference to this e~position.
The history and ethnology· of the Territory, Applicants say, "may be
taken as substantially accurate for the present purpose" 2• The only
reservation made by them with regard to history 3 does not relate to
South West Africa, but to South Africa itself, and will be dealt with
elsewhere in this Rejoinder \ As regards ethnology, Applicants go further
and make the following concession, viz.: "lt is indisputable that in the
Territory there do exist groups differing in language, custom and econo
2
my" • This is followed by an argument concerning alleged "fostering"
of such differences 2• This argument will receive attention at an appro
priate juncture 5-at present Respondent points out merely that the
background information furnished in the Counter-i\femorial stands un
contested.
2. In the Counter-:Memorial Respondent also contended that, to a large
extent, the objective facts of the situation in South West Africa in 1920
6
dictated the policies initially applied in the Territory • Thus the two
basic features in Respondent's policy in the early stages, viz., develop
ment of the Territory primarily by mcans of European initiative, and
differentiation between the various population groups in the Territory,
were, as bas been shown 6, almost inevitable results of the circumstances
in the Territory rather than a positive application of some philosophy of
govemmenL Also on this aspect Applicants have failed to join issue with
Respondent.
3. Many of the circumstances which shaped Respondent's policies in
South West Africa also obtained in other parts of Africa, and, as Re
spondent demonstrated 7, such circumstances called forth policies and
practices which showed a great deal of correspondence with those applied
by Respondent. Once again, Applicants do not dispute the facts-indeed,
they concede, arguendo, the accuracy thereof 8,save for alleging that the
"interpretation given by Respondent to the policy of 'indirect rule' " is
8
"fallacious" • Applicants do not, however, state or explain where the
1
2 Vide II, Counter-Memoria/, Book Hl.
IV, p. 26r.
3 As set out in footnote 6 at IV, p. 261.
• Vide Chap. V and Annex A, i11fra.
' Vide Chap. V, paras. 85-101, infra.
6 Vide II, pp. 404-410.
7 Il,pp. 430-440.
B IV, p. 444. REJOINDER OF SOUTH AFRICA 183
fallacy in Respondent's interpretation is alleged to lie. In these circum
stances Respondent submits that the whole of its exposition of policies
applied in other States in Africa, including its "interpretation" of "indi
rect rule", must be held to be uncontroverted.
4. Applicants do say, howcver, that "Respondent's references to poli
cies alleged to have been followed in other areas have no relevance to
the issues in these Proceedings" 1. The reasons advanced by them for
this contention, viz., that in none of the areas in question did the govern
ing Power apply the policy of apartheid, and that none of the areas is
1
at present administered under Mandate , have already been analysed
and shown to be untenable 2• ln the course of furnishing their said
reasons. however, Applicants say:
''... in none of the areas in question did the governing Power apply
the policy of apartheid, on the basis of which the status, rights,
duties, opportunities and burdens of the population were ... system
atically allotted on the basis of race, color or tribe 1".
It is incomprehensible that Applicants can, without any attempt at
substantiation, make a statement like this in the face of Respondent's
3
clear demonstration in the Counter-Memorial that systematic differen
tiation was in fact applied throughout Africa prior to the Second World
War, and, indeed, for some time thereafter.
5. Respondent has shown 4 that not only the authors of the Mandate,
but also the Permanent Mandates Commission, regarded a policy of
differentiation as desirable or at least inevitable. In this regard, also,
Applicants fail to refute Respondent's contention 5.
6. In the result, nothing advanced by Applicants in the least affects
Respondent's demonstration that its policies-and, in particular, the
differentiation involved in them as between various ethnie groups or
peoples living in South West Africa, including the White group which
had in part become settled there prior to Respondent's régime, and had
in part been encouraged to settle there afterwards. as a necessary means
for developing the Territory-grew naturally from the circumstances
encountered by Respondent on assumption of the Mandate, and that the
broad trends of such policies were during the whole period of the League's
existence in entire accord with the conceptions of the times, including the
views and practices of the League supervisory organs and of ).fandatory
and Colonial adminîstrations in other parts of Africa.
Indeed, the whole trend of Applicants' Reply is an implied admission
of the correctness of Respondent's attitude. This appears not only from
their failure to deal with the material adduced by Respondent, to which
reference is made above, but more particularly from their basic legal
submissions. As has been seen, Applicants do not rely on the strict terms
of the Mandate, or the intentions of its authors, or its interpretation and
applicationduringthe lifetime of the League of Nations. On the contrary,
Applicants present a case based upon "current standards, as determined
' IV, p.444·
2 Vide sec. A, paras. 21-23, supra.
3 Vide 11, pp. 431-437, vide also sec. B, paras. 13 an1.1supra.
• Vide sec. B, paras. 11-12,supra.
5 lbid., para. 16, supra. SOUTH WEST AFRICA
by contemporary knowledge, conditions and requirements" 1, or on an
"interpretation" of the Mandate-
"... on the basis of current standards, rather than on the basis of
the presumed 'intentions of the parties' at the time the obligations
were conferred and accepted i".
Respondent has already dem3nstrated the untenability in law of
Applicants' said contentions •At present Respondent merely points out
that Applicants' preoccupation with "current standards" clearly implies
a recognition on their part not only that earlier standards differed from
the alleged "standards" now invoked by them, but also that Respondent
has in fact complied with such earlier standards. For the reasons set out
above, the latter statement is, indeed, incontestable.
7. It follows from the above that the problems which have resulted in
the present proceedings, arise essentiallyfrom the need to adapt to changes
of circumstances which have occurred since the Second World War,
and from different desires, ideas and views as to the manner in which
such adaptations are to be made. The changes in question involve not
only the abilities, needs and aspirations of the population of South West
Africa, but also widely held conceptions regarding the proper aims and
methods of government. The crucial issue in these proceedings relates
to the question whether adaptations of policies in the light of changed
circumstances should consist of ignoring the actually existing diversity
and differences among the various population groups, abandoning dif
ferentiation, and attempting to create an integrated population in which
a majority vote is to decide the future destiny of all concerned, or of
continuing to recognize such diversity and differences, and to provide
for the separate development of the peoples concemed towards eventual
self-determination by each of them, accompanied by such mutual co
operation as they themselves may decide upon. This issue, in its various
aspects, will be considered in the remaining chapters of this section of the
Rejoinder-on the basis, of course, of the question whether Respondent
ismotivated by bad faith in preferring the course of separate development
to that of attempted integration.
1 IV,p. 514.
l Ibid., p5r5.
3 Vide sec. Band sec. C, para. 35,supra. CHAPTER Ill
RESPONDENT'S POLICIES:
COMPARISON WITH OTHER COUNTRIES AND TERRITORIES
I. In the previous chapter Respondent pointed out that the problems
which have resulted in the present procecdings arise from different desires,
ideas and views as to the manner in which adjustments to policies in
South West Africa are to be made in the light of post-war developments.
In this connection Applicants' attitude with regard to political rights is
that-
''... relevant and generally accepted norms by which the obligations
stated in Article 2, paragraph 2, of the Mandate should be measured,
have been established by the United Nations. These include the in
stitution of universal adult suffrage and the promotion of participation
on the part of alt qualified individuals in all levels of government and
administration within the framewor·k of a single territorial unit 1".
(ltalics added.)
This af pears to be no more than a specific application of the allegect
"norm o non-discrimination or non-separation" which Applicants ha\'e
now introduced 2• Respondent has given its reasons for submitting that
no such norm can be read into the Mandate or is otherwise binding on
Respondent 3•However, in so far as Applicants advance an independent
argument in an attempt to establish the specific "norms" mentioned in
the above quotation, Respondent will deal with it in the present Chapter.
2. Whilst admitting that the Mandate cannot in law be construed as
if it were a trusteeship agreement, and that the Territory is not subject
to the jurisdiction of the Trusteeship Council 1,Applicants nevertheless
say:
"The practice of the Trusteeship Council, approved by the Gen
eral Assembly, is adduced asevidencein support of the proposition:
that there exist established principles and processes pertaining to
problems and objectives analogous in all respects to those involved
in Article 2, paragraph 2, of the Mandate; that such principles and
processes are generally accepted by .States comprising the Trustee
ship Council and members of the organized internat10nal commu
nity; that these established principles and processes constitute norms
by which the obligations stated in Article 2, paragraph 2, of the
Mandate, and Article 22 of the Covenant of the League of Nations,
4
should be measured ... "
lt is accordingly on the practice of the Trusteeship Council, approved
by the General Assembly, that Applicants rely for proof of their alleged
"norms" by which Respondent's obligations should assertedly be
iIV, p. 44r.
2 Vide sec. A, paras.2-10.
3 Vide sec. B, suprn.
+ IV, PP· 441-442. 186 SOUTH WEST AFRICA
measured. Information regarding such practice is set out in Annex 7
to the Repiy 1 in three sections relating respectively to-
(a) establishment of universal adult suffrage 2 ;
(b) treatment of a territory as an integrated unit 3 ;and
(c) encouragement of meaningful Native participation in government
and administration 4.
3. It will be apparent, however, that the material set out in Annex 7
of the Reply could not possibly establish the existence of a "norm" in
the sense in which Respondent used the term, i.e., as denoting a legal rule
which in objective terms defines Respondent's obligations under the
Mandate 5•The legal basis of the activities of the Trusteeship Council is
provided by Article 76 of the Charter and relevant trusteeship agree
ments. The function of the Council is to apply the provisions of these
documents, and to co-operate in carrying them out. The Trusteeship
Council is not empowered to amend, modify or amplify them. A fortiori
a pronouncement of the Council in respect of one trust territory does not
have any legally binding force on the Administering Authority in respect
of any other territory. These considerations have even greater strength
when applied to the present circumstances-nothing gives the Trusteeship
Council power to amend, modify or amplify the provisions of the Afan
date, which fall outside its province altogether. It follows therefore that
Applicants' attempt to distil from pronouncements or practice of the
Trusteeship Council legal norms binding on Respondent in these pro
ceedings, must be held to have failed 6•
4. At the most, therefore, the pronouncement of the Trusteeship Coun
cil may be regarded as standards as defined by Respondent, i.e., practices,
policies or theories of government which are not per se legally binding
on Respondent 7•As has been seen, such standards can be of relevance
only as material from which an inference of bad faith on Respondent's
part may be drawn 8•The first step in such an enquiry would of course be
to determine whether or not Respondent's policies in fact comply with the
standards pronounced by the Trusteeship Council. In this regard Respond
ent will show that the "norms" relied upon by Applicants for the most
part do not consist of objective criteria against which Respondenfs poli
cies could be measured, but, on the contrary, only constitute obiectives
to be pursued. Inasmuch as Respondent is for the most part in full agree
ment with these objectives. and has always attempted to attain them, its
conduct has not been in conflict with such "norms".
ln so far as the Trusteeship Council has however, in somc instances,
recommended methods to be employed in attaining the said objectives,
or the tempo at which development should take place, it is important to
bear in mmd that such recommendations related to specific trust terri
tories. If they are to play any role atallin the determination of Respond
ent's good or bad faith, it would at least be necessary to establish
1 IV, pp. 451-457.
2 Ibid.,pp. 451-452.
5 Ibid.,pp. 452-455.
• Ibid.,pp. 455-457.
5 Sec. C, para. 34, supra.
6 Vide sec.B, para. 3, supra.
7 Sec. C,paras. 34-35.
• Ibid., para. 39, supra. REJQI:-;'.DEOF SOUTH AFRICA 187
that the circumstances are such that Respondcnt should, in the exercise
ofits discretion, have had regard to such recommendations. This implies,
firstly,hat the relevant circumstances in South West Africa must for all
practical purposes be identical with, or closely analogous to, those in the
trust territorv to which the recommendations rclated. As will be seen,
Applicants make no scrious attempt to provide this ncccssary link between
·the recommendations on which they rely, and the circumstances in South
West Africa.
Even assuming, however, that a reasonable observer may feel that cir
cumstances arc sufficiently analogous to render such recommendations
applicable also to South West Africa, the further question would arise
whether a failure by Respondent to have regard to the recommendations
could give rise to an inference of bad faith, or, to put the question in
another fonn, whether such failure would be inexplicable save upon an
assumption of an improper motive. 1\fany factors are involved jn this
enquiry, inter alia. the question to what extent the recommendation con
cemed reflects an opinion held by ail thinking people. But, for present
purposes, Respondcnt would wish to cmphasize one factor in particular,
viz ,the extent to which application of the recommendation in question
did in facthave beneficial results. Clearly no inference of bad faith can be
drawn against Respondent for not following recommendations which
had disastrous, or even doubtful, results in the territories in which they
were applied. For the purposes of this aspect reference will be made not
only to trusteeship territories,but also to other formerly dependent
territories to which Applicants' suggested "norms" have been applied in
recent years.
In the succeeding paragraphs Respondent deals with the contents of
Annex 7 to the Reply. but will, for convenience. not follow the sequence
of Applicants' treatment. Respondent will first deal with the subject
matter referred to in paragraph 2 ( c) above, then with that mentioned
in paragraph 2 (a), and finally with that stated in paragraph 2 (b}.
A. Encouragement of Meaningful Native Participation in Govemment and
Administration
5. Applicants state that-
"[t]he Trusteeship Council has constantly urged greater participation
of indigenous inhabitants in the government and administration of
the Territory in which they live 1".
Respondent is in full agreement with the objective of promoting partici
pation in government and administration on the part of indigenous in
habitants. However, the particular method by whJCh,and the tempo at
which, this objective can best be promoted must o[ necessity depend
on, and be adapted to, the specific circumstances obtaining in the terri
tory. It seems, however. as if Applicants wish to stress the "importance
of training" and "opportunities for experience" 1.Applicants further
associate themselves with arguments that "qualifications and experience"
should not be a "prerequisite to public office", and that the administering
authority-
"... should not be too reluctant to take a certain amount of risk in
tIV, p. 455.188 SOUTH WEST AFRICA
placing [members of the indigenous population] in positions where
they can obtain the necessary experience 1". (ltalics added.)
lt is at once apparent that no objective standard emerges from the above
quotations, and they hardly advance Applicants' case in any other way.
Respondent fully agrees that training and opportunities for experience
should be promoted as far as practicable in the specific circumstances of
the Territory, and has indicated the progress made in this2regard in the
past, and that expected to be made in the future •
6. Applicants set out 1particulars of a variety of steps taken in various
territories in order to promote participation in government and adminis
tration by the indigenous inhabitants. These particulars fumish no evi
dence of the recognition, or application, of any objective standards, but
merely of particular practical steps taken to improve the condition of the
indigenous inhabitants of the terri tories concerned. Respondent does not
propose dealing with any of these steps: the fact that they were considered
advisable in the circumstances obtaining in the said territories is of no
relevance to the issues in the present case. No attempt has been made
by Applicants to show that conditions and problems in such territories
were, or are, in so far as they may be relevant to the particular steps,
closely analogous to those in South West Africa.
Applicants, however, do attempt to create the impression that "indige
nization" of the administration of trust territories has proved an unmixed
blessing in ail cases-even on a basis "reject(ing] the question-begging
argument that experience is a prcrequisite to public office" -and 3 has
contributed materially to the achievement of independence in such terri
tories. Respondent demonstrated in the Counter-11emorial, inter alia,
with reference to United Nation's sources, that Africanization of the
pubJic service, ie., the replacement of European and Indian personnel
by Africans, bas resulted in a reduced standard of efficiency throughout
Africa 4•Apart from quoting authorities with a more general application,
Respondent also referred specifically, amongst others, to the former
trust territory of Tanganyika as an cxample of a State where Africaniza
tion affected the standard of the civil service 5.
Another case in point is the former Cameroon Republi6, a State held
up by Applicants as an example to Respondent •Victor T. Le Vine com
ments in respect of this Statc that-
"... the government has recruited a large number of individuals who
seem i11prepared for their tasks and more concerned with the status
of their positions than the performance of their duties.
It is therefore not surprising that many Camerounians have been
keenly disappointed in the performance of their officiais. If Presi
dent Ahidjo is to be believed, the East Cameroun civil service can
be charged with nearly the entire catalogue of bureaucratie short
comings. In March 1962, he excoriated East Cameroun officialdom
in a well-publicized memorandum, parts of which deserve to be
quoted at length:
iIV, p. 456.
2 Vide III, Counter-Memorial, Book V, sec. E; vide also sec. F, infra.
3 IV, p. 455·
• 11,pp. 455-456 and lll,pp. 158-163.
5 Il,p. 455.
6 IV, p. 456. REJOINDER OF SOUTH AFRICA 189
A marked laxity among nearly the quasi totality of the civil servants
is becoming more and more apparent ... In the majority of the ad
ministrative offices, even up to the central services and the different
ministries, there reigns such carelessness and such anarchy that even
the least informed and least aware are alarmed and sorelv troubled
over the future of our civil service . . . ·
... among these failings are intemperance, dishonesty, and Jack of
courtesy; poorly donc work, lateness and absenteeism, lack of dis
cipline and insubordination ... inflated remunerations, and the
simultaneous holding of several jobs ... Furthermore, civil servants
should refrain from overt criticism of and insults to the Government
or its policies 1".
Attention is also invited to a view expressed by Mr. Patrick Wall, a
British Member of Parliament, United Nations representative and com
mentator on African affairs, who wrote:
"It is becoming increasingly clear that though the white man can
work in independent Africa he cannot have his home there as he
finds the new standards of justice, education, and agricultural
development intolerable 2."
7. To sum up: Respondent is in full agreement with the objective
advocated by Applicants, viz., the promotion of participation in the
government and administration of the Territory by members of the
Native population. Applicants have not, however, it is submitted, estab
lished any objectively applicable criterion as to tempo or method of
promoting such participation. In so far as they rely on examples of other
States, they do not establish that circumstances in such States are analo
gons to those in South West Africa, or that the methods employed there
did in fact promote well-being and progress. In the result, it is submitted
that Applicants' whole argument is entirely unfounded.
B. Establishment o{ Universal Suffrage
8. Applicants state that the "introduction of methods of suffrage
leading eventually to elections by universal adult suffrage" is a "clear
standard from which substantial deviation is illegal under the practice
3
of the United Nations" ,and continue:
"The Trusteeship Council bas consistently recommended 'such
democratic refonns as will eventually give the indigenous inhabitants
of the Trust Territory the right of suffrage and an increasing degree
of participation in the executive, legislative and judicial organs of
government ' 3."
In this instance also, no objective legal "norm" is proved by Applicants
in this respect. In fact, Applicants do not even attempt to give any de
finition of what is meant bv words such as "introduction of methods of
suffrage", "democratic reforms" and "the right of suffrage". They state
4
that "[t]he principle of universality of suffrage has never been in doubt'' ,
1 Carter, G. M. (Ed.), Five African States: Responses t~ Diversity (1963'.
pp. 338-339.
2 Vide Chap. VII, para. 8, in/ra.
3 IV, p. 451.
• Ibid .p. 452.190 SOUTH WEST AFRIC.-\
but adduce no argument, based on Jegal grounds, or even state what
exact meaning they ascribe to this "principle". Do Applicants suggest
that the grant of male adult suffrage is prohibited, in terms of the. Man
date, because women are excluded? Or do Applicants contend that the
grant of rights of suffrage, based on merit qualifications of individuals, is
prohibited in terms of the Mandate, because such rights are not "uni
versal"? And what signifi.cance do Applicants attach to the appreciation
by the Trusteeship Council of "the difficulty of introducing at once a
modern system of suffrage" 1? lt is not surprising that Applicants, in
these circumstances, are apparent!y embarrassed by the "norm" which
they contend for, since they immediately qualify their "clear standard"
by submitting that "substantial deviation" therefrom is "illegal under
the practice of the United Nations" 1, thereby implying that lesser
deviations, of an uncircumscribed nature, are not prohibited.
9. The remainder of Applicants' discussion of this topic contains
particulars of the extension of rights of suffrage in various territories.
The practicability and advisability of such steps in the said territories
have not been correlated in any way to circumstances obtaining in South
West Africa, and are therefore of doubtful relevance. Applicants have
made no attempt to show that the conditions and problems in such terri
tories are, in so far as is relevant to the particular steps taken, the same
as, or analogous to, those in South West Africa.
Applicants do, however, advance the contention that-
"[a]chievement of independence of ail the Trust Territories in Africa
by 1962 demonstrates the peaceful transition from the status of
administered territory to one of democratic majority rule with full
franchise by adult indigenous inhabitants 2",
suggesting that no serious problems, closely related to the exercise and
substance of the rights of suffrage granted, have arisen in such territories.
It is surprising that any person professing to be informed about events
in Africa can make such a suggestion. In the Counter-Memorial Respond
ent had occasion to discuss the tendency throughout Africa to adopt
one-party systems of government 3. In the course of this discussion Re
spondent mentioned a suggested definition of African democracy which
read "one man, one vote, once" 3•Both the tendency and the definition
have in the meanwhile become commonplaces among commentators on
African affairs. The methods emploved in eliminating opposition parties,
have been described as follows: -
"A majority party that is the legal successor to a departing
colonial régimeinherits, or by default acquires, almost unparalleled
power and freedom of action once it becomes the government of
the day ... When the power of deprivation of services and patronage
is insufficient to persuade opposition elements to cease activity
and to join the governing party in a vast parti unifié, or unitcd
front, then the more classical forms of persuasion or neutralization
imprisonment of opposition leaders, harassment by contrived al
legations, censorship, and curtailment of political liberties-can be.
iIV,p.451.
2 Ibid., p. 452.
3 Il,p. 455. REJOINDER OF SOUTH AFRICA 191
and in several instances have been, employed .... Endowed with
such comparativelv unfettered power, the leaders of dominant parties
have moved progressively toward the one-party system, in response
to a variety of factors and pressures 1.''
Other commentators explained the tendency towards one-party States
as follows:
"The governing party in many sovcreign underdeveloped States,
and those intellectuals who make it up or are as,;ociated with it,
tend to believe that those who are in opposition are separated /rom
them by fundamental and irreconcilable di[ferences. (ltalics added.)
They feel that they are the State and the nation, and that those
who do not go along with them are not just political rivais but total
enemies 2."
And-
"The dilemma of responsible African leaders is how to keep their
following without making promises they know cannot be kept. They
may find there is only one solution-to scrap most of the democratic
machinery by which they have won freedom from colonial rule,
and set up one-party dictator[i]al rule, with no quarter for political
rivais. This has already happened in more than one of the new
States. The end of colonial rule has brought about the end of persona!
and political freedom for the tribesmen, who may find themselves
worse off than bcfore 3." (Italics added.)
In the Annexes to this Chapter Respondent gives a brief exposition
of the recent political bistory of various States in Africa. This exposition
contains a number of illustrative examples of the reasons for creating
one-party States, and the methods applied to that end. In this regard
attention is invited to the following random examples, viz., Ghana 4,
Zanzibar 5, Kenya 6 and Algeria 7•
10. However, the apparently irresistible spread of one-party States
in Africa is not the only fact which refutes Applicants' contentions. It
passes all understanding how Applicants can say that, in the case of ail
the trust territories in Africa, the "transition from the status of ad
ministered territory to one of democratic majority rulc with full franchise
by adult indigenous inhabitants" 8was a "peaceful" one.
The whole world is aware of the bloodshed and chaos which accom
panied the independence of the Trust Territory of Ruanda-Urundi
(now Rwanda and Burundi). As is shown below ~ the number of refugees
from Rwanda had, according to the latest Amrnal Report of the United
Nations High Com,nissioner for Refugees, by March 1964, reached a total
of 153,000. Tens of thousands of persons, mainly Tutsi, were slaughtered
1 Goldschmidt, W. (Ed.), The United States and Africa (r963), p. 64.
2 Shils. E., "The Intellectualsin the PoliticalDevelopment of the ~èw States",
Wo3ld Politics(Apr. 1960), pp. 353-354.
McA!lister, B., "Tribal Challenge in the New Africa", AfYican World \Sep.
1963),p. 6.
• Vide Annex IV,in/ra.
' Vide Annex XI, infra.
6 Vide Annex V, infra.
7 Vide Annex 1, infra.
8 IV,p. 452.
9 Vide Annex VII. para. 7, infra.192 SOUTH WEST AFRICA
during the period of Rwanda's transition to independence 1. The former
French Cameroon, another trust territory, was in the grip of what has
been described as "latent or active terrorism" 2 for some years before,
2
during and after its transition to independence in 1960, and peace has
not yet been restored. The Trust Territory of Tanganyika was peaceful
for three years after independence, which was granted in 1961. In 1964,
however, there was a serious mutiny of Tanganyikan soldiers which
could only be quelled with the assistance of foreign troops 3• Togo, an
other former Trust Territory, became an independent republic in 1960
and a one-party State in 196! 4. In 1963 its president was assassinated
and the government overthrown 4. In April 1963, a plot to overthrow
the new government was discovered 4.
The above States, quoted as examples by Respondent, are ail former
trust territories, to which Applicants' exposition specifically refers.
In addition there are of course, a number of other States-not previously
trust territories-where the transition from dependent territory to in
dependent sovereignty was accompanied with as much or more blood
shed. In this regard thoughts turn involuntarily to States such as Al
geria 5,the Congo 6 and the Sudan 7• These instances should suffice to
demonstrate that the introduction of universal adult suffrage, which
Applicants seek to impose on South West Africa, bas not been such an
unqualified success in Africa that Respondent could be accused of bad
faith or even unreasonableness if it resists undue expedition in this
regard.
11. Respondent emphasizes and reiterates its attitude, expressed in
the Counter-Memorial 8,that it is in no way opposed to rights of suffrage
for all or any of the peoples of South West Africa in appropriate cir
cumstances, provided that the introduction of such rights is carefully
adapted to the circumstances of all the peoples concerned. Respondent
is convinced that, when regard is had to the present stage of development
of the indigenous population groups in South West Africa, it would be
unwise entirely to discard their traditional political systems. On the
contrary, Respondent is of opinion that future development in their case
will be most beneficial if it is based on the roots of their own traditional
systems 9.This principle was applied with great success in South Africa,
where tribal systems of government are being adapted by an evolutionary
system of development to present-day needs, inter alia, by the intro
duction. initiallv on a fairlv restricted basis, of an elective element 10.The
same m'ethod of introdudng suffrage rights has also been proposed by
the Odendaal Commission for the indigenous groups of South West
Africa in their future development 1• For reasons which are known,
' Vide Annex VII, infra.
2 Vide Annex Il, para. 1, in/ra.
1 Vide Annex IX, para. 1, in/ra.
• Vide Annex X, infra.
~ Vide Annex IX, infra.
• Vide Annex Ill, infra.
' Vide Annex VIII, infra.
8 II, p. 398 (para. 27).
9 Ibid.p. 477.
10
11Ibid., pp. 478-483.
Vide R.P. 12/64, pp. 81-107; e.g. rOvamboland, p. 83 (paras. 301 and 307). REJOINDER OF SOUTH AFRICA
Respondent, while indicating its agreement in broad principle, has not
yet taken any decisions on the recommendations of the Odendaal Com
mission in this regard 1.
C. The Treatment of a Territory as an Integrated Unit
12. As was seen, Respondent is in general agreement with the two
propositions considered above, viz., that it would be sound policy to
increase progressively the rights of suffrage of the Native peoples of
South West Africa, and that Native participation in government and
administration should be encouraged 2• The differences between Ap
plicants and Respondent in those respects relate more to matters of
emphasis and tempo than of principle. Respondent's attitude is that
it would be calamitous to lower the standards of government and ad
ministration by a too precipitate advance in either of the mcntioned
spheres. Applicants, on the other hand, seem to adopt the attitude either
that there is no substantial risk of such lowering, or else that high stand
ards of government and administration aie luxuries which should not
stand in the way of advancement of Native interests or aspirations in
these spheres.
However, as regards Applicants' suggested norm or standard which is
said to impose an obligation on Respondent to treat the Territory as a
single integrated unit with one centralized government, the issue be
tween the Parties is more basic, and involves the very existence of the
rule on which Applicants seek to rely. ·
13. Applicants contend that there exists a legal "norm" which in all
cases, and in al\ drcumstances, obliges administering authorities of
trust territories (and, by a process of extension, also Respondent in its
capacity as administering Power in respect of South West Africa) to
develop a "sense of territorial unity or national consciousness" 3and to
institute a "unified political structure for each territory in which ail in
habitants would have equal rights in the government and before the
law" i. They contend further that the "requirement" of the Trusteeship
Council is "a totally integrated political unit for each Territory" 4.
As noted above 5 the Trusteeship Council possesses no power to lay
down legally binding norms, and its pronouncements could at most con
stitute material from which an inference of bad faith on Respondent's
part may be drawn. The first step in an enquiry as to whether such an
inference would be justifi.ed, would be to ascertain the content and effect
of the pronouncements relied upon as laying down methods to be em
ployed if! the administration of dependent territories. Even in this re
gard it is clear that Applicants have seriously misrepresented the position.
It is true that in general the Trusteeship Council has advocated the
development of a "territorial consciousness" among the inhabitants of
trust territories. This attitude was never, however, divorced from the
circumstances of the particular territories, and in some cases trust
' Vide IV, pp. 198 and 213.
2Althuugh Respondent of course denies that such principlesamount to lega.l
norms !Jy which its obligationsshould be measured-vide para. 1,rnpra.
l lV, p, 452.
• Ibid., p. 453.
' Vide paras. 3-4,supra.1 94 SOUTH WEST AFRIC,\
territories were eventually, with the approval of the United Nations,
separated into different components, or amalgamated with neighbouring
territories. In this regard Respondent has referred to the Trust Territory
of Ruanda-Urundi, which was divided into two separate States, viz.,
Rwanda and Burundi 1; British Cameroons, the northern part of which
joined the Federation _of Nigeria and the southern part of which entered
2
into a political association with the Republic of Cameroon , and the
Trust Territory of British Togoland, which was integrated with Ghana 3.
14. It is obvious, therefore, that United Nations organs have not
attempted to formulate any universally applicable principle of preserva
tion of "territorial integrity" 4. or of development of "territorial con
sciousness" 4, as alleged by Applicants. Consequently it does not avait
Applicants to quote certain specific cases where the Trusteeship Council
did make recommendations to such effect unless Applicants go further
and demonstrate that the territories to which the recommendations
related are, in ail relevant respects, closely analogons to South West
Africa. This they signally fail to do-in fact, they make no serious at
tempt to do so.
15. But Respondent goes further. ln so far as Applicants' suggested
"norm" has been applied in African territories where conditions are
analogous to those in South West Africa, particularly as regards ethnie
diversity, the results have often been calamitous. As has beefl shown,
the forced preservation of "territorial integrity" has frequently resulted
in bloodshed, disorder and chaos 5. Further examples are given in the
Annexes to this Chapter. The reasons for these manifestations may be
found in the generally observable fact that there are peoples and groups
(nations or embryo nations) which are for ail practical purposes not assimi
lable, the one by the other, because of unwillingness to becomeassimilated.
The same psychological, emotional or cultural attributes which pre\"ent
assimilation, frequently result in a situation in which the groups con
cerned cannot govern one country jointly in a manner which is fair and
acceptable to both or ail of them-the underlying reason being not that one
i'ssuperior and the other(s) inferior, but simpty that the di{lerences between
them are too great.
16. Events throughout world history have provided many examples
of the truth of the above propositions, and have shown that they apply
not only across colour and racial lines but also within them, e.g., as
between White and White, Oriental and Oriental, and African Native
and African Native.
Sorne instances which occurred outside Africa mav be mentioned
briefly. The partition between India and Pakistan is today almost an
cient history, and nobody would suggest that the inhabitants of these
two States could have governed the whole area "as an integrated unit" 6•
It is worth recalling, however, that such an attempt was indeed made at
the time, but that such serious difficultics, including rioting ,vith wide
spread Joss of life, were encountered, that the final decision fell on par-
1 Vide II,p.452.
2
3 /bid.,pp. 452-4 53.
Ibid.,p. 453.
5 IV, p. 453.
6 Il,pp. 450-45 l ·
IV, p. 452. REJOrnDER OF SOUTH AFRICA 195
tition as the only practicable solution 1•Another instance of inassimilabil
ity of two·Asian groups inter se rnay be found in the presence of a million
Tamils of Indian extraction in Ceylon, which situation has given rise
to well-nigh insoluble conflicts. According to recent reports, an agree
ment has now been concluded between India and Ceylon which makes
provision for the drastic remedy of large-scale repatriation of the Tamils,
2
the overwhelming majority of whom were born in Ceylan •
The situation between the Greek and Turkish communities in Cyprus
is so well-known as to require Iittle comment, but for the sake of con
venience Respondent annexes hereto a brief account of the inter-group
relations on that island 3• As at prescnt no mutually acceptable solution
for their problems appears in sight-whether one will eventually emerge,
onlv time can tell.
Even in the United States of America, wbere it would seem from the
outside that possible integration between White and Negro is favoured
by circurnstances to a much greater extent than in most other countries,
extremely serions difficulties are cncountered in ail spheres of the applica
tion of a polic,y of compulsory integration, as is shown elsewhere in this
Rejoinder 4, and the questions whether such policy will in fact lead to
eventual harmonious relations, and if so, over what period of time and
at what cost, seem to remain as open as ever 5•Not much general publicity
has been given to the situation in British Guiana, in respect of which
the following has been said:
"A racial division of the worst kind has taken hold in British
Guiana. East Indians, the predominant race, and Negroes, who are
smaller in numbers but physically superior, have allowed themselves
to be drawn into a conflict which many appear unable to under
stand ."
And-
"[t]here is yet another 'solution'-partition. lt is a measure which
horrifies most Guianese but one which is nevertheless coming to the
minds of many as the apparent racial impasse looms larger every
day. Any way out of the morass of racial hatred and political
7
bitterness must be considered ."
17. The difficulties attendant upon the presence of widely different
groups, in appreciable numbers, in one integrated political entity-of
which the above were some random examples-arise from human be
haviour which manifests itself generally, and they are accordingly not
restricted in their application to certain times or places. This may be
further illustrated by the fact that man y States throughout the world have
given recognition to the existence of such problems, and to the need
for taking realistic account of them in the formulation of government
policies, by devising their immigration laws in such a way as to preserve
their national homogeneity and to prevent the immigration of inassi
milable elements. Thus the "White Australia Policy" in the field of
1 Vide Annex XIII, infra.
2 Ne1u Ziircher Zeilung (evening edition), 3 Nov. 1964.
3 Vide Annex XIV, infra.
• Vide Chap. XI, infra.
1 Ibid. (Vide Conclusion,para. 47.)
b Taylor, F., "Race :\ladness in the Sugar Belt"', Daily Telegraph,2 June r964.
7 Taylor, op. cit. 196 SOUTH WEST AFRICA
immigration severely restricts the immigration of non-Whites. The
purpose of this policy has been officially stated to be-
"... to main tain homogeneity of Australian people in order to avoid
insoluble problems which arise from inability of Europeans and non·
Europeans in any one country to merge successfully into a single
harmonious community. In such an attitude there is not the slightest
suggestion that Europeans are the superior race 1."
A similar policy applies in New Zealand, where, in 1960, the then
Prime Minister expressed himself as follows with respect to uncontrolled
admission of non-Whites into New Zealand: "If we did decide to do that,
I believe we would lose our standards and our right to this country within
a generation" 2•
In Great Britain legislation was passed in 1962 to control the influx
of immigrants, particularly from the newer Commonwealth countries \
At the time the British Government Information Office in Johannesburg
issued a comment on the measure which contained the following passages:
"... in spite of the strong racial tolerance that is the trait of Britain,
strains could easily develop into clashes between immigrants and
the local population ...
Taking everything into consideration it became obvious to Her
Majesty's Government that some form of control was essential, both
to reducethe risk of a social and economic strain inherent in the existence
of unassimilated communities and to provide itself with powers to
regulate the flow of immigrant labour as future economic conditions
might require *." (Italics added.)
As is noted below 5, immigration which has in fact taken place, prior
to or despite this statute, has indeed led to the creation in Great Britain
of unassimilated communities, and to attendant social and economic
strain, which is beginning to make itself felt also in the political sphere.
Also in Canada there exists a provision entitling the Government to
prohibit or limit in number for a stated period or permanently the landing
in Canada of immigrants belonging to any nationality or race for a
number of reasons, including, inter alia; "because such immigrants are
deemed undesirable owing to their peculiar customs, habits, modes of
life and methods of holding property, and because of their probable
inability to become readily assimilated" 6•
The above examples (which are, needless to say, not offered in any
sense of criticism of the policies concerned) ail serve to establish the
existence of the observable fact referred to above 7. However, the present
proceedings are more particularly concerned with conditions and policies
in Africa, and in the succeeding paragraphs the emphasis will fall on
events, policies and occurrences in that continent.
~· 18. The existence of differences in Africa of the type discussed in the
1 The Times, rS Apr. 1962.
2 Rand Daily Mail, 25 Aug. 1960.
3 Vide Annex XV, infra.
' Vide Annex XV, para. 5, infra.
6 Vide Annex XV.
The Immigration Act, 1910 (9-io Edward VII, Chap. 27) as amended in 1919
{9710 George V, Chap. 25), sec. 38 (c). ·
Vide para. 15, supra. REJOIXDER OF SOUTH AFRlCA 197
1
previous paragraph was ernphasized in the Counter-:Memorial . Whilst
not meeting Respondent's exposition of facts, Applicants primarily
content themselves with relying on the "norms" said to have been estab
lished by organs of the United Nations 2• Furthermore, they describe
as being contrary to the "overwhelming weight of authority in the politi
cal and social sciences" 3, Respondent's contention that there are group
reactions which "exist as facts, independently of any governmental
policy" 4•Elsewhere Applicants particularly indicate that they offer this
discussion in response to Respondent's attempt "to justify its policy
on the basis of comparisons with human behaviour at all times and in
5
ail places" •
Applicants' answer to Respondent is consequently purely theoretical
they do not venture to join issue on the actual results of the policy propa
gated by them as it affects real people in a real world, but pin their faith
on theories propounded by politicians and academicians (which, as will
6
be shown, do not even assist them) .For the rest they contend that Re
spondent's references to events in other parts of Africa are not relevant
a contention which has been demonstrated to be clearly untenable 7•
lndeed, by resorting to such an obviously unfounded contention, Appli
cants indicatc the extent of their embarrassment over the intractability
of facts which obstinately refuse to fall into the places pre-determined
for them by Applicants and majorities in the United Nations. Respondent
is unable to oblige Applicants by disregarding unpleasant realties and re
stricting reference in this case to attitudes expressed by academicians and
United Nations representatives: its responsibilities dcmand that it pay
attention also to the results of the theories propounded by the said
persons, and that it be guided, inter alia, by deductions drawn from such
results. To this end, a short discussion of African realities will be pre
sented in the next succeeding paragraphs. This discussion is offered in
8
the same spirit as in the Counter-Memorial , i.e., not of criticizing or
finding fault with the govemments of African tcrritories or policies
adopted by former colonial or administrative Powers in situations of
great complexity, but of Jcarning objectively from the facts-including
manifested reactions and tendencies-with a view to better consideration
and evaluation of Respondent's own policies.
19. The primary political reality in Africa has bcen expressed as
follows:
''... differences based on tribal characteristics are not as amenable
to modification as the relatively compressed demographic differcnces
which serve as indications of power in our own society.
I wish we had a good answer to this, but I think that this is the
9
crux of the problem confronting the African leader ."
1
li,pp. 450-455.
Vide para. 2, supra.
IV, pp. 273 and 305.
5 Ibid., pp. 302-303.
Ibid.,p. 305.
6 Vide Chaps. Vl-Xl, infrn.
1 Vide ~cc. A, paras. 21-23, supra.
" Vide Il, pp. 383 (para. 5) and 449-450 (paras. 35 and 36).
9 A~hford, D. E., "The Last Revolution: Community and c'iation in Africa", The
A nnals of the American Academy of Political and Social Science, Vol. 354 (July 1964),
p. 45· SOUTH WEST AFRICA
This confirms another general statement of the same purport quoted in
the Counter-Memorial 1to which attention is invited.
Where deep-seated tribal, racial or ethnie differences have been ignored
in African States, the result has frequently been bloodshed and chaos.
In so saying, Respondent must not be understood as suggesting that
every difference between groups must necessarily be an impediment
to political integration. Each case must be determined on its own merits.
It sometimes occurs that differences which appear to an outsider as
unsubstantial or even insignificant, nevertheless result in complete un
assimilability, whereas apparently major differences may, by the pressure
of drcumstances. not constitute an insurmountab]e obstacle in the way of
integration. As a rule of general probability, however, experience has
shown that major ethnie differences need much more delicate handling
than the crude principle of one man one vote in an integrated society
which is proposed by Applicants. Examples where this approach has
failed disastrously may be founµ in the Annexes to this Chapter. Thus
there is the case of Rwanda, the very existence of which, as noted above 2,
reflects a departure from the "norm" which Applicants seek to distil
from United Nations practice. It is clear, moreover, that the division
between Rwanda and Burundi was not a drastic enough remedy for the
ills of Ruanda-Urundi-within Rwanda itself the differences and antago
nisms between the Hutu and the Tutsi were too severe to be contained
within one State. In that case efforts at integration resulted in the virtual
extermination or expulsion of the Tutsi 3 •Despite these well-known facts,
Applicants refer with approval to recommendations regarding "sweeping
although graduai change in local government without reference to the
wishes of the inhabitants" of Ruanda-Urundi, and to "the importance
4
attached by the Council to a uni/ied political structure" for the same
territory. The impression is created that Applicants are completely
unaware that the results of Trusteeship Council policy in Rwanda can be
measured in tens of thousands of deaths and hundreds of thousands of
refugees.
Another cxample is the Congo (Leopoldville). A short resumé of the
events in that unhappy State is given below 5.For present purposes it is
sufficient, firstly, to quote the following words of the Secretary-General
of the United Nations:
"The current difficulties in that country reflect conflicts of an
internal political nature with their main origins found in the absence
of a genuine and sufficiently widespread sense of national identity
among the various ethnie groups composing the population of the
Congo 6."
Secondly, it may be noted that, in the midst of a spate of newspaper
reporting from the Congo on the recent bloodshed and atrocities in that
territory, the following appeared: "The consensus here appears to be
l li, p. 450 (para. 37).
i Vide para. 13, supra.
3 Vide Annex VII, infra.
• IV,p. 453. (Italics added.)
6 Annex III, infra.
Ibid., para4, infra. REJOl~DER OF SOUTH AFRICA 199
that partition of the Congo is inevitable, and the only hope of solving the
crisis, the New York Times reports" 1.
In the Sudan, attempts at creating an integrated State between Arabs
and Ncgrocs have lcd to massacres and flight, as is demonstrated below 2•
Here the death toll runs into thousands and the number oLrefugces into
tens of thousands 2.A recent news report on a demonstration at Khar
toum by 5,000 Africans, which erupted into violence, stated, inter alia:
"At first held in check by the organisers ... the crowd chanted
slogans, calling for the separation of the Sudan's southern provinces
from the rest of the Arab-dominated country 3."
The same two groups, Arabs and Negroes, clashed in Zanzibar where it
was the Arabs who bore the brunt of violence and were forced to flee \
20. Respondent does not wish to suggest that ethnie differences in
Africa have necessarily led to bloodshed. In certain States some success
seems to have been achieved in containing the disruptive forces inherent
in ethnie differentiation. Respondent wishes to emphasize, however, that
the problem of ethnie diversity is something which has to be squarely
faced-it will not disappear conveniently once the formula of one man
one vote in an integrated society is applied. It is significant, therefore,
that in African nations with wide ethnie differences among the popula
tion, the greatest degree of stability has been attained where the system
of government takes account of such differences. It will be seen that in
Nigeria, for instance, a solution was sought by way of a relatively loose
federation 5. Although this did not eliminate group frictions 5, it at least
seems to have controlled them to some extent. It is instructive that a new
fourth region known as the Mid-West state, has recently been created
with the support of ail political parties in Nigeria in an attempt at
relieving some of the strains still caused by ethnie diversity 6•Whether
Nigeria has found the complete solution for its problems, only time will
tell. Sorne observers have suggested that a further partitioning of the
country would be necessary 7•
21. Another State with ethnie problems is Ghana. In that country the
problem was brought within manageable proportions by the establish
ment of a very strong dictatorial type of government. lt may be noted
in passing that one of the reasons for the creation of dictatorial single
party systems of government in a number of African territories may well
be the necessity of curbing inter-group frictions. Thus it has been said:
"... perhaps the majority of cases of successful regional integration,
ifhardly ideal models for Africa, have been based around the subju·
gation of the surrounding areas by force, or the domination of them by
other means 8" (italics added),
and-
1 The Star, 30 Nov. r964.
2 Vide Annex VIII, infra.
3 Tht Pretoria News, 7 Dec. r964.
• Vide Annex XI, infYa.
5 Vide Annex VI, infra.
6 Ibid., para. 5.
1 Ibid., para. 6.
8 Ki!son, M. L., "Authoritarian and Single-Party Tendencies in African Politics",
World Politics (Jan. 1963), p. 273.200 SOUTH WEST AFRICA
both Ghana and Guinea have experienced significant tribal
centered political conflict; and since it is a major source of political
instability in societies in process of forming coherent nation-state
communities, some of the single-party tendencies in the two countries
1
may be attributable to an attempt to overcome this conflict ".
Reference may also be made to the following prophetic utterance. made
as long ago as 1955:
"The Europeanized Gold Coast is not in any true sense building
up democracy, and it will not remain a political unit, despite the
ability and magnetism of Mr. Nkrumah, its pseudo-Parliamentary
Premier, because tribal Ashanti chiefs will not allow a Europeanized
coastal upstart to lord it over them ... Such States have no lwpe
of survival in Africa ttnless held together by ruthless despotisms 2."
(Italics added.)
It seems clear that Kenya's development into a one-party State, which
is sketched below 3, was also influenced to some extent bv the ethnie
diversity of its population. "
22. A particular manifestation of ethnie conflict occurs where a sub
stantial portion of the population is of European origin. In the Counter
Memorial ~ Respondent demonstrated that, despite attempts in the past,
it has never been possible to establish in an integrated political entity a
basis of real and successful co-operation between a settled White com
munity and African Native populations. References were there made
to the Central African Federation 5• Kenya 6, and the former Belgian
Congo 6 •Since the filing of the Counter-Memorial the facts in respect of
these three territories have become even starker. As regards both the
Federation and Kenya which are dealt with briefly below 7, the words of
Elspeth Huxley are particuiarly apposite, viz.:
"A!as, multiracialism is dead beyond hope of revival and there
can be no sharing of power, only seizure of it. If the whites relinquish
their grip then the black majority will take it, as in Kenya-and as
blacks; African racialists, not as so-cal!ed 'civilized men' measuring
up to some common non-racial standard politically expressed in a
qualified franchise 8."
The expulsion of Europeans from Algeria is also a well-known facet of
9
modern history, and is dealt with below • Apart from instances where
Europeans were forced out of newly independent States by reason of
violence and disorder, thP.general lowering of standards and development
of black despotisms, to which reference was made above 10, have induced
many White people to depart.
23. Respondent commenced this discussion by quoting as an example
1 Kilson, M. L., "Authoritarian and Single-PartyTendencies in African Politics",
World Po!itics(Jan. lg/53),p. 275.
2 Lord Altrincham, Kenya's opportunity (r955),p. 59.
' Vide Annex V, infra.
• Il, pp. 454 and 468-471.
5
6 Ibid., pp. 454 and 469-470.
1 Ibid.,pp. 454 and 469.
Vide as regards Kenya, Annex V, infra, as regards the Federation, Annex XII.
8 The Times, 24 Sep. 1963.
9 Vide Annex I, infra.
10 Vide para. 6, supYa. REJOIXDER OF SOUTH AFRICA 20I
a State referred to by Applicants as one in which the policies of the Trus
teeship Council were applied, viz., Rwanda 1. The two other examples
referred to by Applicants also constitute a poor advertisement for such
a policy. They are the former French Cameroons 2 and Tanganyika 3.
Reference has been made to the "latent or active terrorism" suffered by
the French Cameroons 4. The recent history. of Tanganyika, as dealt
with below 5,also does not inspire a great deal of confidence in the merits
of Applicants' suggested "norms". As will be seen, this country attained
independence in 196r, became a one-party State in 1963, and suffered a
serious mutiny in r964, which could only be quelled with the assistance
of foreign troops. Political repression is rife 5• Thereafter it formed a
political association with Zanzibar, adopting the name Tanzania. Ac
cording ta a recent report by Associated Press, the general attitude of
the Native inhabitants of Tanganyika is one of opposition to the resident
6
Europeans • The report continues:
"... with Africanisation proceeding, the position of Whites has
become steadily more insecure ... Many Britons drive to work in the
morning and wonder if they will have been replaced by an African
by 4.30 p.m. n"
It would seem that the "peaceful and harmonious atmosphere of good
will" 7 which so impressed the 1960 Visiting Mission was not strong
enough to survive the application of the "nonn" which Applicants are
now wishing to impose on South West Africa.
24. To sum up, Respondent disputes that the Trusteeship Council
has laid down any generally applicable rule that trusteeship territories
should be administered as single integrated units with single centralized
govemments. Furthermore, events in Africa, including former trust
territories and elsewhere, have conclusively established that the indis
criminate application of such a rule, particularly where there exists an
ethnically differentiated population, is likely to have calamitous results,
whether by reason of rebellion or disorder, or through the imposition
of control by authoritarian means or even from both. Consequently
Respondent contends that Applicants have signally failed to establish
any basis for contending even that an integrated administration with
universal franchise would be a desirable form of government in South
West Africa. A fortiori of course, there can be no suggestion of any bad
faith on Respondent's part in resisting Applicants' daims to impose
such a system.
' Vide para.. 19, supra.
2 Reforred to at IV,p. 454.
3 IV, pp. 452, 453 and 454,
• Vide para. 10, supra. and Annex II, infra.
' Vide Annex IX, infra.
6 Rand Daily Mail, 14 Dec. 1964.
7 IV, p. 454. Annexes to Chapter III
Annex I
ALGERIA
Before independence was conferred on Algeria in 1962, there were
approxima tely I million Europeans living in the country; they consti
tuted roughly 10percent. of the total population 1•The history of violence
and bloodshed in Algeria, which marked the struggle between the French
forces, the White settlers and the Algerian nationalists in the years before
independence, is well known. In the eight years from 1954 to 1961,
according to one report, some 2,348 Europeans and 15,674 Moslems were
killed in the fighting, while 23,405 French soldiers died in Algeria during
the same period 2• lmmediately after Algeria became independent there
was a massive exodus of the White population-about 800,000 Europeans
fled from the country 3•During 1963 still more Whites left the country 4 •
The departure of the Europeans, together with their capital, technical
know-how and purchasing power, has had a markedly adverse effect
on Algeria's economy 5• In October 1963 it was reported that the Presi
dent had announced the confiscation of about 2% million acres of land
still remaining in French ownership 6•Shortly before, the friction between
rural Moslem groups which had already been apparent on the eve of
independence 7, flared up in the form of a revolt by the Berber people of
the Kabylie region 8, who represent about one-fifth of the total population
of Algeria and who have been traditionally distinct from the rest of the
Algerians 9•
1 Africa lnstitute: Maps and Statistics, No. 1 (July 1962), p. 11.
2 The Star, 27 Aug. 1962.
3
A/rica lnstitute Bulletin, Vol. II, No. 17 (r Oct. 1962), p. 503.
• The Daily Telegraph, 1 July 1963.
5 The Atlantic Report, Apr. 1964, p. 14.
6 The Guardian, 2 Oct. 1963.
1 Vide G. Mansell, Tragedy in Algeria, pp. 30-32.
8
The Times, I Oct. 1963; The Star, 2 July 1962, 3 July 1962, II July 1962, 26 July
1962, 30 Aug. 1962 and 4 Sep. 1962.
9 The Star, 30 Sep. 1963. Annex II
CAMEROON FEDERAL REPUBLIC
1. After the inclusion of the French Cameroons in the French Union
in 1956 1, and the introduction of universal adult suffrage 1, serious
political unrest continued unabated in the country. In May 1960 the
conditions were described as follows:
"For over four years the French Camerouns has suffered latent or
active terrorism. From June 1959, violence reached the pitch of the
Mau Mau in Kenya; fi.rst 20 Europeans were shot or hacked to death,
and then an average of 50 African civilians have been murdered
every month. Visitors to the Bamiléképrovince travel under military
escort, passing areas of destruction and neglect: shattered, blazing
lorries, trenches slashed across the roads and intensely cultivated
plantations of bananas and cocoa smouldering in untended deso
lation ... On January 1st this year [r960], with II out of 21 depart
ments in a state of emergency, with Premier Ahmadou Ahidjo, an
inartîculate but tough little Moslem ruling by decree, the Cameroun
Republic achieved its independence of French trusteeship ... In
February Premier Ahidjo submitted a new constitution to a referen·
dum. One of the opposition leaders, Myi Matip, called for its rejection
and the terrorist emigré leader Felix-Roland Moumié for a total
boycott. Only 45 per cent. voted in the Bamiléképrovince, but
intimidation may have accounted for some of the abstentions; 57
women and children were murdered the night before the referen
dum ... Two months later on April rnth, the first general elections
were held in an atmosphere of continued violence ... 2"
2, The Cameroon Republic, barn on r January 1960, joined with the
British Southern Cameroons ta form the Cameroon Federal Republic
under a Constitution which became effective on I October 1961 3.The
constituent states are loosely bound, preserving a large measure of inter
nai autonomy. The former Cameroon Republic, now the Eastern Came·
roon in the federal Republic, has continued on its unsettled political path,
rapidly developing towards a one-party state.
This was achieved by dissolution of an opposition party congress
according to Victor T. Le Vine, "at bayonet point" -and 4 the arrest,
trial and conviction of four opposition leaders on a charge of "inciting
hatred against the Government and public authority, inciting conflict
between ethnie and religious communities and disseminating news
prejudicial to public authorities" 5• And the same author concludes
that-
1 Vide Il,p.522.
2 A/ter Terrorism, Peace for the Cameroun?, Africa, 6 May 1960.
3 Vide II, p. 519 (para. 47); and Le Vine, V. T., Five African States,edited by
Carter, :\J., p. 308.
' Le Vine, op. cit., p. 323.
-' Ibid.p. 321. SOUTH WEST AFRICA
204
"[w]hatever the truth or falsity of the government's charges against
the opposition and however one interprets the refusai of the oppo
sition parties to join in the parti unifié,there is no question that by
July 1962 the East Cameroon1had become, to all intents and pur
poses, a one-party state ".
3. After the practica1 nullification of parliamentary opposition, opposi
tion to the Government has continued in the form of terrorist activity.
Le Vine comments that-
"[d]espite the repeated avowals of the East Cameroons govemment
that terrorism has definitely declined and indeed altogether dis
appeared in some sections of the country, reports continue to corne
from the Cameroon that guerilla activity is still very much of a
problem. The terrorists apparently continue to find their main
support among disgruntled Bamiléké and within the 1to'ltveaux
arrivéesof the towns. Two sorts of maquis groups must be distin
guished. One type includes the groups led by highly politicized UPC
leaders, some of whom were trained abroad in guerilla tactics. These
groups often possess weapons apparently smuggled in from Guinea
or Ghana. The second type seems to consist of bands taking ad
vantage of confusion and unrest to pillage, kill, and steal; they
generally operate under ad hoc leadership and without specific
pofüical motivation 2."
4. "Cameroonization" of the civil services has also created serious
difficulties and retrogression in standards of administration.
Le Vine comments, in a passage already quoted above, that-
"... the govemment has recruited a large number of individuals
who seem ill prepared for their tasks and more concerned with the
status of their positions than the performance of their duties.
It is therefore not surprising that many Cameroonians have been
keenly disappointed in the performance of their officials. If President
Ahidjo is to be believed, the East Cameroon civil service can be
charged with nearly the entire catalogue of bureaucratie short
comings. In March 1962 he excoriated East Cameroon officialdom
in a well-publicized memorandum, parts of which deserve to be
quoted at length:
A marked laxity among nearly the quasi totality of the civil
servants is becomihg more and more apparent ... ln the majority of
the administrative offices, even up to the central services and the
different ministries, there reigns such carelessness and such anarchy
that even the least infonned and least aware are alarmed and
sorely trou bled over the future of our civil service ...
. . . among these failings are intemperance, dishonesty, and lack of
courtesy; poorly done work, lateness and absenteeism, lack of
discipline and insubordination ... inflated remunerations, and the
simultaneous holding of several jobs ... Furthermore, ci\'il servants
should refrain from overt crjbcjsm of and Jnsults to the Govemment
or its policies.''
1 Le Vine,op. cit., p324.
2 ibid.pp. 332-333.
3 ibid.pp. 338-339. Annex III
Co:-.Go (LEOPOLDVILLE)
1. The tragic and chaotic events in the former Belgian Congo after it
became independent, the intervention of the United Nations to restore
order there, and the still continuing fighting, violence and atrocities in
the territory, are all matters too well known to be recounted here. The
important point for Respondent's purposes is that the difficulties en
countered in the Congo were due in large measure to the differences
between the varions ethnie and cultural groups in the country.
As elsewhere in Africa, tribal and group loyalties in the Congo have
provcd to be stronger than a feeling for national unity 1•The surprisin~ly
rapid political changes in the terri tory have not destroyed the continmty
of African cultures: even in the violence which followed Belgium's
sudden withdrawal from the Congo, the importance .of ethnie bonds and
traditional hostilities remained clearly apparent 2. Political parties were
organized along tribal lines 3; thus political representation and organi
zation stimulated tribal rivahies and intensified ethnie separatism i.
Self-government has legitimized or encouraged territorial divisions 5•
2. It has been said that it must be expected that.no lasting peace and
friendship could be achieved in the two Congos or indeed· in Central
Africa until the aspirations of ethnie groups are met 6• But apparently
the Belgian authorities at the time of independence did not explore the
possibilities of a federal or regional solution to the problems of the Congo;
instead, independence conferred full powers on the Central Govemment
at Leopoldville. In the result, the fear of domination of one ethnie or
tribal group by another has tended to acceleràte the trend toward the
·"balkanization" of the territory 5•Various ethnie groups have repeatedly
demanded regional autonomy for themselves and have threatened to set
up independent states 7• ·
3. The pattern of separatism which is evident in the Congo and else~
where in Africa 8 has given rise to the following recent comment:
"Events in East Africa, the Congo and West Africa clearly portray
that our continent is fast becoming, as it were, an aggregation of
atoms, disorganised. discontented and antagonistic. How can it be
possible for states composed of clusters of nationalities simmering
1 Carter, G. :'IL, lndependence for A/rica (l961), p.. S; .Rothchild,$., Journal oj
lllt,malional Affairs, Spring 1961. pp. 25-26.
z Bascom, W. R. and Herskovits, M. J.,Continuity and CJiange in Africa, p. (vii).
3 Sutton, F. X., "Authority and Authoritarianism in The ~ew Africa", journal
o/ International Affairs, Spring 1961, p. 16.
• Carter, op. cil., p. 8.
5
Lemarchand, R., American Polilical Science Review, June 1962, at pp. 404-405.
~ Osinowo, T., New Africa, Apr. 1964, p. JO.
1 Panikkar, K. I\J.,.Revolution in Africa (1961), pp. 17-rS; Bulletin of tJie Africa
fostilule,Pretoria, Vol. Il, Xo. 17 (r Oct. 1962), pp. 496-503; ibid.
8 Rothchild, D. S., "The Poli tics of African Separatism", Journal of ln/ernational
Afjairs, Spring 1961, p. 18.206 SOUTH WEST AFRICA
with race consciousness to develop national attitudes which are
necessary for progress 1?''
Moreover, it must be stated that the Congolese are not a people, but a
collection of large ethnie groups, each of which is a people. It is not
surprising, therefore, to fmd that it has been argued that it is unwise to
talk of the objective in the Congo as being "unity", when the best that
could be hoped for was a loose federation of tribal satrapies, and "unity"
imposed bv an iron authoritarian régime 2; and also that it might be
better to allow the country to fragment into smaller, more manageable
3
units which could be aided and organized one by one • Ethnie differences
have prevented the development of the Congo as a unitary State on a
voluntary basis and it seems that the peoples of the Congo cannot be
welded into a unit otherwise than by the use of force, such as was used in
Ghana in respect of the Ashanti 4.
4. There seems to be little doubt that the înter-group fighting that has
occurred in the Congo after independence is in large measure directly
attributable to the fact that the constitutional arrangements for the
country failed to give adequate recognition to the separate identities and
aspirations of the various ethnie groups. In the early days of the crisis it
was observed that Congolese displayed a very sharp concept of ethnie
differences within the African tribes; men were beaten to death for no
other crime than that of belonging to an alien tri be; the Baluba and
5
Lulua slaughtereq and mutilated in the Kasaï will never be counted •
Later, hostilities and bloodshed resulted from the secessionist movement
in Katanga. Recently, reports on the still continuing civil war in the
territory indicate that the rebellion is essentially tribal and motivated
partly by purely local considerations 6•
The United Nations Secretary-General in his report on the withdrawal
of the United Nations Force in the Congo stated that:
"Four years have been gained in which the Govemment and the'
people of the Congo have had the opportunity to corne to grips with
their vast problems and to be assisted in meeting some of the worst
of them. Four years have been gained in which Congolese public
administrators, doctors, professional people, experts of all kinds,
and technicians could at least begin their training and begin to gain
experience under the guidance and with the expert help of personnel
of the United ~,ations and its specialized agencies. These long-term
efforts are now commencing to bear fruit, and they give cause for
7
hope for the future of the Congo ."
1 Osinowo, T., New Africa, p.9. (ltalicsadded.)
2 The Saturday Evening Post, Vol. 234, No. 7, 18 Feb. r96r,
3 New Daily, 'l3 Apr. 1964.
• Cf. Mazrui, Ali Al'amin: "Edmund Burke and Reflections on the Revolution,
in the Congo", Comparative Studies in Society and History (Jan. 1963), p. 124;
Bretton, H. L., "Political Problems of Poly-Ethnic Societies in \\'est Africa",
Fifth World Congress, International PoliticalScience Association, Paris, 26-30 Sep.
1961, p. 15.
5 Munger, S., African Field Reports, I952-I96I, Part I, pp. 180-18r.
6 The New York Times, 5 Aug. 1964, p. 8.
' U.N. Doc. S/5784, p. 38. REJOINDER OF SOUTH AFRICA 207
The Secretary-General concluded his report by stating that-
" ... a further extension of the stay of the Force in the Congo would
provide no solution to the remaining problems of the Congo. The
current diffi.culties in that country reflect confiicts of an internat
political nature with their main origins found in the absence of a
genuine and sutficiently wide-spread sense of national identity among
thevarious ethnie groups composing the population of the Congo ... The
United Nations cannot permanently protect the Congo, or any other
country, from the internai tensions and disturbances created by its
own organic growth toward unity and nationhood 1." (Italics
added.}
That this position was clearly understood by the Congolese Government
is evidenced by the fact that the Congolese Prime Minister wants to
regulate local administration according to traditional tribal lines. In lact
the Congolese Prim.e Minister is reported to have stated:
"The [tribal] system was devised by our ancestors for the main
tenance of law and order. So much of the trouble today is attribu
table to the breakup of a time-tested system 2."
1 U.N. Doc. S/5784, p..p.
i Newsweek, Vol. LXIV, No. 1(, (19 Oct. 1964), p. 33. Annex IV
GHANA
r. The people of Ghana may be roughly divided into two broad groups:
those of the south, who are Negroes, and those of the north, who are of
the Negroid type t.Two of the main groups in the country are the Fanti of
the coastal region and the Ashanti of the interior. There was a history of
conflict between them even before the advent of colonial administration 2•
Before Ghana became independent there were grave doubts as to whether
the Ashanti in the north and the Ga and Fanti in the south could keep
together 3.After independence, tribal or ethnie parochialism persisted in
Ghana 4, and even now many Ghanaians still have a stronger allegiance
to their local tribes than to the nation of Ghana;. Like other large groups
in Nigeria and in the Belgian Congo, the Ashanti in Ghana have de
manded regional autonomy to the largest extent possible, feeling that to
be the only way in which they can preserve their own special virtues 6.
Similarly. party loyalties in Ghana were bascd on ethnie considerations,
until the formation of parties along such lines was forbidden by law,
after which ail the main parties in opposition to the dominant ruling
party regrouped to form one United Party 7•
"\Vhat is happening is that large groups ail over West Africa
support the parties not because they approve of their policies but
tribal consideYations force these parties into a posture of defiance. Thus
the govemment belongs to one ethnie group and the opposition is
!ed by another group. which certain/y would not be healthy either for
democracy or for political development 8." (Italics added .)
2. In Ghana. unlike Nigeria, no real attempt has been made sincc
independence to respect the ethnie divisions of the population. Thus,
the Governmcnt of Ghana has ·refused to take into consideration the
separateness of the Ashanti and the Northern Tcrritories 8•Instead, the
goveming party has by various means ensconced itself in the position
where it mies with practically absolute powers 9, There can be JittJe doubt
that conflicts between ethnie groups have contributed materially to the
development of Ghana into an authoritarian Statc, and that the aspi
rations of the various groups for recognition as separate entities could
not have been kept in check except through the dictatorial and repressive
methods applied by the ruling party. It has been observed that nearly
ail single-party situations in African States, political instability stemming
' Bourret, F . .\l., Ghana~The Road lo lndep,mdeiice, I9I9·I957 (1960), pp. 8-9.
z Buell, R. L., The Native Problem ilt Africa. Vol. l (1928), pp. 788-789.
3 Sampson, A .. Common Sense About .1/rica (1960), p. 33.
• Apter, D. E., "The Role of Traditionalism in the Political Modernization of
Ghana and Uganda", World Politics, Vol. XIII, No. , (Oct. 1961), p. 65.
5 "Xkrumah Tightens the Reins", Senior Scholastic, Vol. 84, No. S (20 Mar. 1964),
p. 34.
6 Panikkar, K. :II.,Revolution in Africa (1961), pp. 79-80.
7 Steinberg. S. H. (Ed.), Statesman's Year-Book 1963, p. 513.
8 Panikkar. np. cil.,p. 17.
9 Vide para. 3, infra. REJOI:,.'"DER OF SOUTH AFRICA 209
from tribal conflict or unrest has contributed in some measure to one
party govemment. Thus,
"... both Ghana and Guinea have e:xperienced significant tribal
centered political conflict; and since it is a major source of political
instability in societies in process of forrning coherent nation-state
communities, some of the single-party tendency in the two countries
may be attributable to an attempt to overcome this conflict 1".
Other authorities have commented on the situation in Ghana as follows:
"Countries like Ghana that have taken strong measures have
pointed to the ruthlessness of their opponents as justification-and
with much plausibility. There seems little doubt that African govem
ments have graver problems of security than the colonial govem
ments had-they are more intimately involved in potentially explosive
Ajrican differences. These, one ventures to think, are some of the
realities behind the ideology of national unity and one-party
systemswhich Westemobserversoften find so disquieting 2." (Italics
added.)
"Violence tends to breed violence, and monopoly of political
expression tends to breed conspiracy and extra-constitutional
resistance. Ghana and Guinea have both announced in their brief
periods of independent statehood two or three major conspiracies to
overthrow the govemment by force, to assassinate the presidents of
the republics, to subvert the army and so on. And both have alleged
a score of minor conspiracies to lesser but in authoritarian context
serious ends ... Bath have gencrally explained their actions on the
basis of putting down dissident elements threatening the success of
the nation-building program of the govemment by emphasizing
tribalism and sectarianism of one kind or another 3." (Italics added.)
"The Europeanized Gold Coast is not in any true sense building
up democracy, and it will not remain a political unit, despite the
ability and magnetism of Mr. Nkrumah, its pseudo-Parliamentary
Premier, because tribal Ashanti chicfs will not allow a Europeanized
coastal upstart to lord it over them ... Such States have no hope
of sitrvival in Africa unless held together by ·ruthless despotism 4.•;
(Italics added.)
3. The measures taken by the dominant party in Ghana to suppress
criticism of and opJJosition to the Govcmment are well-known matters of
recent history. A brief referencc to the more important measures will
suffice: the deportation of certain leaders of the northern region in 1957,
after a special Act of Parliament had been passed, reversing a decision of
the Supreme Court 5; the passage in the same year of the notorious
"Emergency Powers Act" and an Act prohibiting the electoral formation
1
Kilson, M. L., "Authoritarian and Single-Party Tcndencies in African Politics",
World Politics, Jan. 1963, p. 275. .
~ Sutton, F. X., "Authority and Authoritariaoism in the ):ew Africa", Jounial
of Intemational Afjafrs,Spring 1961, p. 16. .
3 Ri\'kin,A., "The Politicsof Nation-Building: Problems and Preconditions",
Journal of InternationalA"{jairs, Vol. XVI, Ko. 2 (1962), p. 139.
• Lord Altrincham, Kenya's Opportunily (1955). p. 59.
5 "Consolidation of the Dictatorship of Dr. Kkrumah in Ghana", Africa lustitille
Hulletin, Vol. I, ..',17 (1 Xov. 1961),p. 10.2IO SOUTH WEST AFRICA
of parties of a tribal, ethnie, religious, or regional character 1; the adop
tion in 1958 of the "Preventive Detention Act" 1; the wholesale arrest of
opposition party supporters in r96r 2; and the "nationalization" in 1962
of the last independent press organ in the country, which had been
3
strongly opposing the policies of the governing party .The Government
has the power to expel any non-citizen without giving cause and to
confine any citizen to a certain area, from which he cannot move 4;
"[o]pposition to the President can result in detention for an indefi.nite
period" 5,and numbers of people opposing the Government have in fact
been detained 6•
4, Generally it has been said that-
"[t]he insistence on uniformity and conformity as the manifestations
of national coherence and national unity has led the radical nation
.alist states in Africa-primarily Ghana, Guinea and Mali-to inter-
na! regimes in which the single or dominant party is superior to the
state and manipulates state power in the interest of party doctrine.
The party tends to be monolithic and all-encompassing ... The
parties tend also to have corps of party militants to exercise overt
pressure and force where needed without interference from the
police or military, which in turn are available for use to the same
end when required 7."
In such circumstances, violence tends to breed violence 8 ; subversion
is the only way in which opposition to the governing party can be ex
pressed 5: and in the last two years there have been three attempts to
assassinate the President 5, coupled with major conspiracies to over
9
throw the government by force .
5. The dictatorial character of the régimein Ghana has been confirmed
by recent events 5•In the beginning of 1964 a referendum was held to
seek approval for constitutional amendments making Ghana formally a
one-party State and givingthe President the right to dismiss judges of the
Supreme Court and High Court at any time 10• The result of the referen
dum was overwhelmingly in favour of the proposed amendments; but ir
regularities in voting procedures, such as the removal or sealing of "No"
boxes and the ticking off of voters' names before any voters had arrived
to cast their votes, and the announcement of results in certain areas long
before all the ballot boxes could possibly have been brought in 5,have
given rise to the description of the voting as a "mockery" and of the re
ferendum as "farcical" 5 •Before the referendum thegoverningparty had
warned: "Those who think they can hide under the so-called 'secrecy' of
1
"Consolidation of the Dictatorship of Dr. ;:,,'"krumah"op cit., p.11.
2 Ibid., p. 13. .
3 "Ghana: Xationa!ization of a Xewspaper", Africa lnslilule Bulletin, Vol. rI,
No. r9 (1 Xov. 1962), p. 548.
4 Carter, G. M., Independence for A/rica (1961), p. 138.
5 "Ghana'', Atlantic Report, May 1964, p. 28.
6
"Ghana Extends Pre,..enti,·e Detention", West A/rica, 9 Xov. r963, p. 1275.
7 Rh·kin, A., "The Politics of Xation·Building: Problems and Preconditions",
ournal of Intternational Affairs, Vol. XVI, Xo. 'l(1962), pp. 138·139.
8 Ibid., p. 139.
9 Rivkin, A., "The Politics of Xation·Bllilding: Problems and Preconditions",
.Journal of fllternational At}aîrs, Vol. XVI, Xo. '.(1962), p. 139.
10
Ajrica Digest. Feb. 1964, p. 117. REJOI!':DER OF SOUTH AFRICA 2II
I
the polling booth to fool us must know that the days when we could be
fooled are gone" 2• It has been said that the results of the referendum
reveal the extent not of the Government's popularity but of the fear of
persecution Ghanaians now live in i.
1 In fact each ballot paper had the voter's name and serial number on it:National
Review, 18 Feb. r964.
i "Ghana", Atlantic Report, May r964, p. 28. Annex V
KENYA
r. The population of approximately 6,254,000 is hetcrogeneous, con
sisting of different racial and tribal groups. ln 1957 it was estimated
that the population included approxima tely five-and-a-half million Afri
cans, 62,000 Europeans, 161,000 lndians and 34,000 Arabs. The Africans
are dîvided into a considerable number of tribes, amongst which the
Kikuyu represent close to 20 percent. of the total African population, the
Luo approximately r4 per cent., the Baluhya 12.5 per cent. and the
Kamba approximatcly 1r.7 per cent. Remaining tribes range between
2 per cent. and 6 per cent. of the total of the African population.
2. Despite the British ideal of a peaceful multi-racial State, intergroup
relations have in the past been, and still are, strained, and haYe had a
profound effect on the development of events in Kenya. As early as 1920
there was a Young Kikuyu Association the main objcct of which was-
"... to stimulate enmity between black and white and to get the
people to consider that they are in astate of slavery which has bcen
imposed on them by Europeans 1".
The Mau Mau movement, Kikuyu dominated and led, inter alia, by the
present Prime Minister of Kenya, Jomo Kenyatta, which included in its
aims "... the elimination of European and Indian influences in Kenya
and the setting up of an all-African state" 2,placed Kenya in a state of
emergency frorn October r952 to January z956, during which time nume
rous atrocities were committed and thousands of people lost their lives 3.
3. \Vith regard to the relationship between Whites and non-Whites
Elspeth Huxley and Il:largery Perham commented that-
"[t]here are plenty of Europeans who will not, and will never, wil
lingly sit down to a meal with an African and there are plenty of
Africans (even more, I suspect, in proportion), who will never aban
don their dream of getting rid of the Europeans altogethcr, forever~·'.
African feeling against Whites is illustrated by the remarks of a senior
member of the African govemment. Louis E. Lomax 5, American Negro
and protagonist of integration, comments as follows on a speech by
Tom î\1boya, Kenya Minister of Justice:
" 'Then the Europeans want to know if they can stay on in Kenya.
I tell them ''sure" ', l\Iboya said, almost doubling up with laughter.
The audience knew what he meant. 'But if they stay they must get
out of politics. \Ve are going to have an all-black Parliament, and an
ail-black government. \Ve are going to divide the land among our
people. 1f the Europeans want to stay they can stay on as squatters.
If they want to work they can work for us, and they must work on
1Cmnd., Xo. 1030, p. 39.
2Ibid.,p. 51.
3 Ibid., p. 316.
• Huxley, E. and l'crham, 11., Race and Politics in /ùnya,pp. 252-253.
5Lomax, L. E., The Reluclanl African(1960), ]lp. 82-84. REJOI!'.DER OF SOUTH AFRICA 213
contract. They will corne when we say corne and go when we say go!'
The Africans applauded and screamed with glee. Tom ?.Iboya was
on the stump. He was hustling votes, keynoting a political campaign
eight months before the election date. His platform was crystal-clear:
he promised to submit the Europeans to every indignity and depri
vation they have visitcd upon the Africans for a century ...
As we drove away I asked Mboya if he really meant it. He said he
did."
It is not surprising that over the last three years Kenya has lost nearly
a third of its White population 1.
Colin :\I. Turnbull, Assistant Curator of African Ethnology at the
American Museum of Natural History and a recognized social anthro
pologist, states:
"\Vhere two peoples founcl themselves to be completely incom
patible, as did the pastoral Masai and the Kikuyu cultivators, then
they established separate though neighboring zones. They found a
relatively peaceful settlement through avoidance, and this enabled
each to retain its own highly distinctive way of life with its associated
system of be\iefs and values 2."
4. The relationships between Africans and Asians arc also tense.
Rehana Sadikot wrote in April 1963:
"A large-scale trade boycott, enhanced by intimidation, attempt
ecl_byAfricans against Asians in 1960-1961, has led to an Exoclus of
As1ans from Kenya ...
This cliscrimînatory treatment is a bitter blow to the Asian com
munîty ... who] have been profound believers in the social rise of
the Africans and have never looked upon them as future competi
tors 3."
Louis Lomax reports: "But beneath the politics ... there is simmering
hatred and bitterness in African-Indian relationships 4." And during
May 1964, it was reported that "Ken vais facing a new exodus of Indians.
Ships from :Mombasa to Bombay are booked solidly until the middle of
next year ... " 5 .
5. With regard to the African population, tribal affiliations are still
strong, despite vigorous condemnation by the Government, and inter
tribal fears and hostilitics have posed serious problems. Political organi
zation developed on a tribal basis, and A. J. Hughes 6•who in 1963 be
came Press Liaison Officer of Jomo Kenyatta's ruling K.A.N.U. party,
comments that-
"... tribalism was entrenched as the basis of political organization
and thinking. An uncoordinated plethora of tribal and sub-tribal
parties and groups emerged."
One party followecl another, until the centralistic Kenya African
1 Die Vaderland, 6 Oct. 19(,4,p. 3.
~ The Aunais of the American Academy of Polilical Social Science, Vol. 354, July
1964, p. 2S.
3 "Equal rights for Asians",in New Africa, Apr. 1963, p.12.
4 Lomax, L. E., The Reluctanl A frican (1960), p. 70.
5 Rhodesia Herald, 8 May 1964.
• Hughes, A. ]., East Africa: The Search for Unity, p.123. SOUTH WEST AFRICA
National Union (K.A.N.U.) was formed in 1960, dominated by the large
Kikuyu and Luo tribes 1.
In ·the same year the Kenya African Democratic Union was formed,
bringing together several groups fearful of Kikuyu and Luo domination,
and emphasizing regionalism, which was, according to Hughes,
" ... no more than the transformation of tribal fears and animosities
into an ideology which could be given constitutional form. K.A.D.U.
proposed the division of Kenya into a number of areas, similar to
but not entirely corresponding with-those of the main tribal group
ings ... [which] policy gave articulate expression to K.A.D.U.'s very
genuine tribal fears of the Kikuyu and the Luo 2".
6. At the Kenya Constitutional Conference, 1962, an attempt was
made to recognize the basic ethnie differences in the country, and to hold
together the centrifuga! forces by devising a Constitution on regional
lines and granting different groups a measure of regional autonomy. Six
regions were to be deJimitated by an independent Boundaries Commis
sion. The report of the Regional Boundaries Commission, 1962, abounds
with examples of tribal animosity and fears, e.g.,
"A combined Kamba delegation was unanimous in saying that the
Kamba people did not wish to be placed in a region with the Kikuyu
or to be associated in the same region as the Masai.
A combined Masai delegation was also unanimous in expressing
the wish to be included in a region with peoples other than the
Kamba.
A representative cross section of the Meru people ... expressed
the wish ... in no circumstances to be included in the same region as
the Kikuyu 3."
The Embu delegations insisted-
" ... that if they were to be associated with the Kikuyu in the same
region they would require guarantees that they would be given the
right to determine ownership and control of land in the Embu
District, the right to have an effective local govemment in the district,
equitable representation in Central and Local Government and a fair
share of developments monies 4''.
"The Abaluhya were most emphatic in their desire to be associated
together in a region separate from the Luo. The Kipsigis left us in no
doubt that their unanimous desire was to be associated in a region
with the Nandi and other Kalenijn tribes; they were equally unani
mous in not wishing to be left in a region with the Luo 5."
The Somali of the Northem Frontier Districts unanimously objected
against inclusion in any region of Kenya, wishing to join the Somali
Republic 6•The Somali in these districts have been in a constant state of
revoit and the member of the Legislative Council for Northern Province
East is reported to have said that secessionists living in the area were
1
2 Hughes, A. J.,East Africa: The Search for Unily, pp. 131-132.
Ibid., p. 144; vide also A/ricaWorld, ]uly 1963, p. 7.
' Cmnd., :.\'o. 1899, p. 9,
• Ibid., p. ro.
5 Ibid., p. 14.
tiIùid.,p. 8. REJOl~DER OF SOUTH AFRICA 215
prepared to die for their cause 1.Also among the Luo fear of the Kikuyu
exists. In August 1962, a Luo meeting attended by 4,000 Luo resolved
that-
"[w]hereas hitherto good relations have existed between the Luo
community and members of the Kikuyu tribe, as is evident in our
association in K.A.N.U., we as a community have viewed with
great concern the widespread intimidation, oathing, secret meetings,
and gun manufacturing by members of the Kikuyu tribe, apparently
aimed at dominating other tribes in Kenya 2".
The report of the Regional Boundaries Corn.mission concluded that-
"... it is clearly established that there is a compelling and sincere
desire on the part of many of the peoples of Kenya to be associated
in a region with some and not with others. That is the truth, and it
could only be by a process of wishful thinking that a contrary conclu
sion could be reached 3".
7. The deep group loyalties in Kenya have resulted in the flaring up
of tribal animosities and bloodshed 4. Revolt in the Northern Frontier
Districts is chronic. The Somalis there boycotted the Kenya elections to
show their unwavering determination to secede from Kenya 5•
6
K.A.N.U., dedicated to centralism (which is close to Kikuyism) ,
accepted the regional Constitution in 1962 under pressure. Since coming
into power, and since independence which was achieved in December
1963, the Government has progressively refused to take into considera
tion the desires of minority groups to preserve a measure of autonomy.
Prime Minister Kenvatta hinted soon after independence that Kenya
needed to become a'one-party State, and that K.A.N.U. would be the
only party 7• And within a year after independence Kenya oflicially
became a one-party State and legislation was passed to curb regional
autonomy.
8. There can be little doubt that conflicts between ethnie groups have
contributed materially to the development of Kenya towards an authori
tarian one-party régime, capable of keeping in check the aspirations of
minority groups for recognition as separate entities only by the imposition
of strong measures.
1 East A/Yican Standaytf, quotcd in the Africa Digest, Oct. 19(,2,p.57.
2
The Times, 20 Aug. 1962, quoted in A/Yica Digest, Oct. 1962, pp. 25-53.
3 Cmnd., 'No.1899, p. 5 (para. 29).
• Vide, e.g.,The Times, 1Sep. r962, quoted in Africa Diges/, Oct. 1962, p. 53;
The Guardiaa, 25 l\1ay 1963, quoted in Africa Digest, Aug. 1963, p. 11.
s The Guardian, 25 :\Jay 1963, quoted in Africa Digest, Aug. 1963, p. 11.
6 Vide African World, July 1963, p. 7.
1Die Transvaler, 27 July 1964. Annex VI
NIGERIA
r. The general observation that "[t]here are notoriously great differen
ces among the African peoples who were swept into one political entity
1
by the colonial partition of Africa" , is nowhere better illustrated than
in Nigeria. In a United Nations publication it was said:
"One of the most striking examples of diversity is provided by
Nigeria where, in particular, the Yuruba of the Western Region, the
Ibo of the Eastern Region and Hausa and Fulani of the Northern
Region, are distinctive ethnie groups differing in custom, tradition,
2
religion and language .''
The groups mentioned are the predominating sections of the population;
in actual fact there are not less than ten, and possibly 12, main ethnie
3
groups • The main ethnie groups are distinguished by decided structural,
cultural and religious divergencies 4; for example, the people of the
northern region, which is Moslem, conservative and under-developed
educationally, have little in common with the Negro peoples of the
southern half of the country 5. Each of the ethnie groups, it has been said,
is a nation by itself, containing many tribes and clans; there is as much
difference between these main groups as there is between Germans,
English, Russians and Turks, for instance 6 . Accordingly, it has becn
observed that Nigeria as a whole is an artificial unit and not a nation in
the true sense of the word 7•
z. An attempt has been made in Nigeria to recognize and respect the
fondamental differences between the varions ethnie groups in the coun
try. Thus, the Constitution under which the country gained independence
in 1960, acknowledging the fears of minorities 8,contained safeguards pro
tecting religious and ethnie groups from discrimination 8, while the
Federal type of Constitution 9 was in itself an acceptance of diversity and
1
pluralism 0. With regard to the Federal Constitution, two prominent
Nigerians have commented as follows:
1 Sutton, F. X.," Authority and Authoritarianism in the New Africa", journal of
International AOairs, Spdng 1961, p. 15.
2 U.N.Doc., ST/TRI/SER. A/15/Vol. 3, Progress of the Non-Self-Governing Terri
mider the.Charter (r961), p. 18.
tor3es
Awolowo, O., Path to Nigerian Freedom (1947), p. 48; Bretton, L., Power and
Stability in Nigeria (1962), pp. r27-128.
• Bretton, L., Power and Stability in Nigeria (r962), pp. r27-128.
~ Kimble, G. H. ·r.Tropical Africa, Vol. II (r960), p. 242.
6 Awolowo, O., Palk to Nigerian Freedom (1947), p. 48.
7 Hailey, An African Survey, Revised 1956 (1957), p. 307; Keuning, J., "Nigeria's
Po8itieke Problemen", A frika, Maandblad van het Ajrika-Jnstituu/, Dec. 1962, p. 427.
A commission appointed in 1957 to inquire into the fears of minorities recom
mended the insertion of specific safeguarding provisions in the constitution: U.N.
Doc., ST/TR[_ISER. A/15/Vol. 3, Progress of the Non-Self-Governing Terrilories
under the Charter (r96r), p. 22.
9 Vide Il, p. 518 (para. 39).
10Rivkin, A., "The Politics of l'\ation-Building; Problems and Preconditions",
Journal of International A flairs, Vol. XVI, Xo. 2 (1962), p. 139. REJODIDER OF SOUTH AFRICA 217
"Ail these incompatibilities among the various peoples in the
country militate against unification. For one thing they are bound
to slow down progress in certain sections, and on the other hand
theytend to engender unfriendly feelings among the diverse elements
thus forced together ... Those who _Place thcse groups under the
same Constitution ignore them at the1r peril. More so, as it appears
that theseincompatibilities tend to grow in size as those concerned
become more educated and civilized .. ,
Experts can propound leamed theories as to why people having
different languages and cultural backgrounds are unable to live
together under a democratic unitary Constitution. But the empirical
facts of history are enough to guide us. It has been shown beyond
all doubt that the best constitution for such diverse peoples is a
federal Constitution ... 1"
"Far from marking the triumph of 'tribalism', or regional natio
nalisms, the adoption of federal government in this country was a
constructive step towards a durable society based on a multiplicity
of ethnie groups. Since the ethnie groups cannot be wished away,
wisdom dictates that they be recognized for what they are-the
raw materials out of which the Nigerian nation has to be fashioned
and that a constitutional formula be found for reconciling diversi
ties with overall unity. This is precisely what a fedcral framework
is designed to do ... 2''
3. Nigeria's acknowledgement of the diversity of her peoples in ber
attempt to build a nation has not been without constructive effect. Con
sidering the vast size of the country and its population, and the extent
of the ethnie diversitv, the Nigerian record conceming internai stability
appeared for some time to be amongst the more favourable of the newly
independent States ol Africa. However, evidence bas lately been mount
ing that the actual constitutional arrangements have not gone far enough
in the direction of decentralization in order to enable Nigeria to escape
"the quickening pace of separatist activities" 3,which have been manifest
elsewhere in Africa. In fact, the group divisions which were instrumental
in bringing about the federal structure have tended to push the three
regions of the country even further apart 4; the divergences amongst the
various groups have been a source of friction, "a negativc force of dis
5
equilibrium and disintegration" • The task of building a nation and
forging the varions groups into a homogeneous community has thus far
proved incapable of attainment, because, although there are no fonda
mental differences of race or colour between the ethnie groups, there are
nevertheless important diversities of culture and religion 6• 1:hese have
resulted in the emergence of "tribal particularisms" 7. in an increasing
1 Awolowo, O., Palh lo Nigerian Freedom (1947), pp. 49-50.
i Ogunsheyo, A., "Nigeria"s Political Prospects", quoted in Bi,lletin of the A frica
lnstitute,Vol. l, No. 13, r Sep. 1961, pp. 4-5, from an article published in Ibadan,
the Journal of the University College of Ibadan.
3 Rothchild, D. S., "1'he Po\itics of African Separatism", journal of International
AUairs. Spring 1961, p. 18.
4 Cowan, L. G., Local GQVernmenlin West A/rica (1959}. p. 168.
5 Bretton, H. L., Power and Stability in Nig"ia (1962), p. I2ï-
6 Elias, T. O., Govemment and Politics in Africa (1963), p. 64.
7 Ibid., p. 6o. 218 SOUTH WEST AFRICA
1
awareness of cultural and linguistic identity ; even educated Nigerians
have retained the basic loyalties to their particular communities, pro
viding the leadership of the local or "tribal" unions 1•The desire of each
· group to preserve its own cultural, economic and political solidarity has
given rise to tribal animosities 2, to conflict between ethnie groups and to
a govemment composed of totally different groups 3•
4. Group loyalties have resulted in the flaring up of old divisions,
tensions and friction in local authorities such as county councils and muni
cipalities throughout the country 4. One authority has noted that at
least one county in the Eastern region, which had been formed by
forcibly combining three distinct groups, has "fallen apart" as a result
of tribal and linguistic differences 5. More broadly, the competition for
political power which has arisen between the hitherto quiescent groups
has been organized around tribal ties and sentiments 6 ; the various
groups support separate political parties 7, tribal feelings being the main
8
influence in detennining party allegiance • According to one authority,
political tribalism has been introduced where only social and relatively
small-scale tribalism had been known before 9 •Two of the three major
political parties came into existence partly in response to the threat of a
mass party to seize power nationally on behalf of one ethnie group 10•
Each of the main parties, in the struggle to gain power at the centre at the
11 12
expense of the other parties , has become regionally entrenched ; there
is a tendency for the perpetuation of the rule of the particular groups
which form the majority in a particular party 1, and the larger groups
14
are thus bound to dominate the smaller groups • The minority groups
are at a disadvantage when they are forced to be in the midst of other
peoples who differ from them in language, culture and historical back
15
ground •These minorities are beset with fears of discrimination, op
pression and even destruction 16•Thus ethnie considerations have become
major sources of conflict 16.
5. The fears of dissatisfied ethnie minorities in Nigeria have given rise
to repeated demands for the status of new regions or provinces to be
1 Post, K. \V. J.,The Nigerian Federal Election (1963), p. 14.
2 Elias, T. O., Government and Politics in Africa (1963), p. 61.
3 Osinowo, T., "Essentials of African Unity", New Africa, Apr. 1964, p. 9; vide
also Hodgkin, T., Nationalism in Colonial Africa (1956), pp. 189-190.
• Cowan, L. G., LocalGovernment in West Africa (1959), pp. 170-171; Carter, G. M.
and Brown, W. O., Transition in A/rica (1958), pp. 58-59.
5 Carter, G. M. and Brown, \V. O., Transition in Africa (r958), p. 58.
6 Hodgkin, T., Nationalism in Colonial Africa (1956), pp. 189-190.
7 Post, K. \V.] .. The Nigerian Federal Election (1963), p. 13.
8 Mackenzie, W. J. l\1and Robinson, K., Five Elections in Africa (1960), p. 95.
9
Bretton, H. L., "Political Problems of Poly-Ethnic Societies in \Vest Africa",
address delivered at the Fi/th World Congress of the International Political Science
Association, Paris, 26-30 Sep. 1961, p. 5.
10 Bretton, H. L., Power and Stability in Nigeria (1962), p. 122.
11 Ibid., p. 120.
12 West Africa, 8 Feb. 1964, p. 141.
13
Gyasi-Twum, K., "\Vest Africa's Prospects for Democratic Rule", A/rica-
Special Report, June 1959, p. r 2.
H Mackenzie, \V. J. M. and Robinson, K., Five Elections in Africa (1960), p. 484.
15 Awolowo, O., Palk to Nigerian Freedom (1947), pp. 53-54.
16 Bretton, H. L., Power and Stabitity in Nigeria (1962), pp. 128-129. REJOIXDER OF SOUTH AFRICA 219
accorded to their own specialized cultures 1,and for the formation of new
States 2• There have also been frequent threats of secession 3• Already
these fissiparous tendencies 4 have resulted in the establishment, recently,
of a new, fourth region in Nigeria, known as the Mid-West state 5.The
creation of the new state within the Federation followed upon a crisis,
during which astate of emergency was imposed in the Western Region,
providing for rule by decree of the Federal Government; and Chief
Awolowo, whose Action Croup formed the majority in the Western
Regional Parliament while being a minority in the country as a whole 6,
was put on trial and sentenced for treason 7.These developments have
to a certain extent confirmed the doubts that had been expressed by some
authorities as to whether stability could be maintained in an indepen
dent Nigeria 8, whether the three regions could be stopped from dis
integrating under the stresses of their own internai antagonisms 9.and
whether the various ethnie groups would stay together longer than
expediency required 9.
6. It is significant that when the new Mid-West state was created, all
the political parties in Nigeria not only supported that development, but
iri fact encouraged the formation of still further smalt states. In July 1963
the New York Times Service reported from Lagos as follows on the
formation of the new region:
"Its creation reflects the intensity of tribal and regional feeling
that still pervades Nigeria's political life ...
While most African nationalists decry any tendency to split
Africa into tribal groups, the creation of the Mid-West State had the
broad support of ail Nigerian political parties.
They reasoned that because tribal feeling is still so strong in Nigeria
a truly national political party cutting across tribal lines is not yet
possible.
Thus the only way to achieve national unity is to encourage smalt
tribal states. With each tribe secure in its own area there will be far
more willingness to form truly national unity without fear of any
one group being strong enough to dominate another 10." (Italics
added.)
Other observers have also advocated the further partitioning of the
country as a means of resolving·the·confl.icts between the various.ethnic
1Adam, T. R., Government and Politics in A.frica South of the Sahara (1962),
pp. 108-109.
2 Post, K. W. J..The Nigerian Federal Election (1963),p. 13.
3Carter, G. M. and Brown, W. O., TYansition in Ajrica (1958), p. 58; Rothchild,
D. S., "The Politics of African Separatism", Journal of International A flairs, Spring
1961, p. 58.
• Hodgkin, T., Nationalism in Colonial Africa (1956), pp. 189-190.
s Abernethy, D. B., "Xigeria Creates a New Region", Africa Report, Mar. 1964,
pp6 8-10.
The Star (African News Service), 29 May 1962; 4 June r962 and 25 June 1962.
' Keesing's Contemporary Archives, 28 Dec. 1963-4 Jan. 1964, p. 19818, and
15 to 22 Aug. 1964, p. 20236.
8 Mackenzie, W. J. H. and Robinson, K., Five Elections in A.frica (1960), pp.
484-485.
9 Kirnble, G. H. T., Tropical Africa, Vol. II (1961), p. 243.
1o As quoted in The Star, 16 July 1963.220 SOUTH WEST AFRICA
groups: thus, there have been serious suggestions that Nigeria should be
split up into 13 autonomous regions 1: it has been argued that each group
must be autonomous in regard to its internai affairs, and that even as
many as 30 to 40 Regional Houses of Assembly would not be too many
in the future United States of Nigeria 2 ;the suggestion is that since the
opposition to the Government is regional, and not political, there is no
reason to believe that the recognition of separate entities by the creation
of a large number of units with limitcd powers would wcaken the coun
try 3•
7. Nigeria's attempt at alleviating group frictions by recognizing and
respecting ethnie divisions can hardly be describetl as a "pandering to
tribal parochialism", the phrase used by Philip Mason 4. No-one would
suggest that the country should be divided into "more than a hundred
linguistic groups'' 4. As has been pointed out, the large number of lin
guistic groups are mostly comprised in the 10 or 12 major ethnie groups:
in other words the position within these groups is similar to that obtaining
amongst, e.g., the Ovambo and the Okavango peoples in South West
Africa 5 a~d there is a widely held view that more states should be es
tablished within the Federation to make provision for the main group.
The presence of members of different groups in the various govern
mental bodies, which is inevitable under the present arrangement, has
given rise to much tension and friction, as pointed out above 6• Sometimcs
this tension has erupted into violence, as in the Tiv Division of North
Eastern Nigeria. In February 1964 it was reported that riots had broken
out there during which Il people were killed; later ten members of a
minority political party were sentenced to various terms of imprison
ment 7.The President of this party blamed the disturbances "on district
and clan heads interfering with local politics" 7. On 2 August 1964 The
New York Times reported:
"Months of tribal clashes in north-eastern Nigeria may have cost
as many as r,ooo lives, the police said today.
Bloodshed increased sharply several months ago, spurred by
tribal jealousies and political bickering.
The Tivs resent being ruled by the Moslem Fulani tribe from the
Northern Region's capital of Kaduna 8." (Italics added.)
1 Sampson, A.. Common Sense About A{Yica (196o), p. 33.
2 Awolowo, O., Path to Nigerian Freedom (1947), pp. 53-54.
3 Panikkar, K. l\I.Revolution in Africa (1961), pp. 17-18.
• IV, p. 335·
5 Vide II, pp. 323 (para. 42) and 318 (para. 28).
6 Ibid.,and paras. 3-5, supra.
7
"Xigeria's Population Explosion", West Ajrica, 29 Feb. 1964, p. 226.
8The New York Times, 2 Aug. r964, p. S. Annex VII
RWANDA
r. The two population groups, which differ racially and culturally,
viz., the Hutu (85 per cent. of the population in 1956) and the Tutsi
{slightly less than 15 percent. of the population in H)S6}have maintained
their separate identity over a contact period of at least four centuries 1.
2. During the late 1950s, with the introduction of the principle of
suffrage-<:oming in the place of indirect rule which previously had not
drastically changed the Tutsi-dominated feudal type of society-direct
competition and tension between the groups built up rapidly. Political
parties were formed on a tribal group basis, the Tutsi dominating the
UNAR lUnion Nationale du Ruanda) Party, and the Hutu rallying
behind PARMEHUTU (Parti d'Emancipation des Hutus) 2•
3. ln 1959 large-scale racial and political violence broke out, when
PARl\IEHUTU organized a popular uprising against the appointment
of a new Mwami as monarchical ruler. Thousands of refugees fled the
country, including the newly appointed Mwami 3.
4. As a result of elcctions held in 1960 PARMEHUTU was swept into
power, and early in 1961 a political coup d'étatfollowed when the PAR
MEHUTU government organized a mass meeting of communal coun
cillors and burgomasters which voted Rwanda a Republic, elected a
new provisional National Assembly, and a provisional president \
5. Elections for a National Assembly, under United Nations super
vision, together with a referendum on the principle of the monarchy, were
held in September 1961. Widespread terrorism and intimidation accom
panied the election campaign 5• PARMEHUTU won 80 percent. of the
vote. Following the election there was a new burst of terrorism and
5
thousands of Tutsi fled the country • Prior to independence well over
100,000 Tutsi fled Rwanda. Over 250,000 still remained 6.
6. Tutsi refugees formed a secret terrorist organization, the Inyenzi,
dedicated to secure the return of Tutsi refugees and the restoration of the
monarchy in Rwanda 7.Incursions into Rwanda by Rwanda refugees
were made during November and December, 1963 8, but were repulsed.
Mass reprisais by Hutu against Tutsi still living in the country then
swept Rwanda. The Hutu population ran amok and thousands of Tutsi
1
Ruanda-Urundi, Geography and History, Belgian Congo and Ruanda/Urundi
Public Relations Office (Brussels, 1960), p. 23; vide also Segal, A., Massacre in
Rwanda (1964), p. 4.
2 Segal, op.cit.,pp. 7-9.
3 Ibid., p. 9- Vide also G.A., O. R.. Sfateenth Sess., Suppl. Xo. 4 (A/4818). p. 29
(para. 6).
• G.A .. O.R., Sixteenth Sess., Suppl. No. 4 (A/4818), p. 30 (paras. 28 and 29);
Segal, op. cit., p. rn. '
5
6 Segal, op. cit.p. 10.
Ibid., p. II.
7 Ibid., p. 13. Vide also Matheson, A., "Massacre in the :Mountains", Rand
Daily Mail, 11 Feb. 1964.
8 Segal, op. cit.,p. 13; U.N. Doc. E/3935, p. 47.222 SOUTH WEST AFRICA
men, women and children were slaughtered 1. The exact number killed
will never be known. Segal states that "ft]he most reliable estimates are
1
between ro,ooo and 14,000 slaughtered" • Mass reprisais only came to
an end by mid-January 1964, but arrests and executions of Tutsi con
tinued 2.A further wave of Tutsi refugees fled the country 3.
7. The number of Tutsi remaining in Rwanda is unknown. Segal
estimates that since 1956-
"... probably upwards of 250,000 have fled the country, including
50,000 during the latest massacres. The remaining rzo,000-140,000
are not allmved to leave the country since the Rwanda govemment
iears that once out they will be recruited by the Inyenzi 4".
According to the Iatest Annual Report of the United Nations High
Commissioner for Re/ugees the number of refugees from Rwanda had
reached a total of 153,000 by March 1964 creating a critical problem 5•
Segal states that the-
"Tutsi remaining within Rwanda are in an impossible position.
Although still heavily reliant on Tutsi officiais for administration
and education, the Rwanda government has no confidence in their
loyalty. Even under the most stable conditions their prospects for
promotion in the civil service would be severely limited. As it is they
are branded as traitors and are subject to intimidation by the
Inyenzi for supporting the régime.Only a handful manage to leave
the country secretly ... 4"
The upheavals in Rwanda have brought economic disaster to the coun
try 6•
Segalconcludesthat-
"Rwanda is today one of the world's most unfortunate countries,
besodden with tragedy which may erupt again at any time. The
country lives in a constant garrison state of military alert, its
economy has been shattered to the point of near paralysis, and the
standard of living of its population reduced to the barest of subsistence
levels. Its borders are thronged with thousands of refugees who are
kept alive on the most meagre rations only through the grace of
external aid ."
8. The Administering Authority and the United Nations have found
it impossible to develop a joint sense of territorial consciousness on the
basis of universal adult suffrage of the population viewed as one. It has
also proved impossible for the two groups to govern jointly and peace
fully on such a basis, in a manner fair and acceptable to all.
9. It appears from a recent report a that the position of the exiled
Tutsi in East Africa and the Congo, estimated at more than 130,000,
1 Segal, op. cit.,pp. 14-15.
2 Ibid., p. 13.
3 ibid., p. 16.
• Ibid., p. 18.
~ U.N. Doc. E/3935, p. 42.
6
Segal, op. cil.,p. 19; vide also "Rwanda: The Tutsis Brood", The Economis/,
28 l\lar.1964, pp. l197-1198.
7 Segal, op. cit.,p. 3.
8 The Star, I Oct. 1964. REJOI:-DER OF SOUTH AFRICA 223
continues to be critical and that thev have obstinatelv refused United
Nations offers to resettle them in Tanganyika, being "engaged "... in
planning what they believe will be a more successful attempt to regain
their old dominion and restore thcir .Mwami'' 1•
• The Star, I Oct. 196.f. Annex VIII
SUDAN
I. The population of 12,109,000 is not homogeneous, and consists of
partly Arabs, partly Negroes, and partly Nubians of mixed Arab-Negro
blood, with a small foreign element, including some 8,000 Europeans
(1961 estimates) 1.
The Arab and Nubian population groups are concentrated in the north,
the Negroes in the south. The population of the Southern Sudan is
arproximately 3,500,000. The Arabs and Nubians are ail Moslems. The
Negroes are generally pagan, but some have been converted to Chris
tianity, and some to Islam 2.
2. The fact that these differing population groups found themselves
within the boundaries of a single State was due to their fortuitous union
under the control of the Anglo-Egyptian condominium, under British
administration, since 1899.
3. The Arab and Negro population groups arc markedly different.
J. Cameron says:
''The Sudanese of the north and those of the south not onlv seem
to be, but consider themselves a wholly distinct people. The Àrabic
speaking ~-luslimsof the north have little affinity with the Negroid
dwellers of the Equatorial south ... between the sophisticates of
Khartoum and the arid north, and the black Nilotic people of the
swamps and the forests few things exist in common, ethnically,
linguistically, culturally. The Northerners tend to regard the
southern Negroes with contempt; the Southerners cherish dark me
mories of the Arab incursions3among them in the days, long re
mote, of the slave trade ."
"The most serious internai problem now facing the ... govern
ment is the discontent festering in the Sudan's three southern
provinces ... which are ethnically, culturally, and linguistically
more akin to middle Africa than to the Sudan's Moslem, Arabized
north 2."
4. During the period of British administration the Milner Mission
recommended in 1920 that-
"[h]aving regard toits vast extent and the varied character of its in
habitants, the administration of its different parts should be left as
far as possible in the hands of the native authorities, whereYer they
exist, under British supervision .. .4''.
This policy of indirect rule was progressively carried out. The years
during wh1ch this policy was applied were relatively free from internai
upheaval. No population group felt itself seriously thrcatened by domi
nation of other groups.
1 Whilaker's Almanac (1964), p. 926.
2
3 Kitchen, H. (Ed.). A Handbook of African AOairs (1964), p. 158.
Cameron, J., The African Revolution (1961), p.231.
• l\Iair, L. I'., Native Policies in Africa (19p.)181. IŒJOIXOER OF SOUTH AFRICA 225
In 1953 an Anglo-Egyptian Agreement guaranteed to the Sudanese
the right to determine their own future. The first Sudanese general
elections were held at the end of 1953. On I January 1956 the Republic
was prodaimed 1•
5. lndependence, according to L. D. i\Iakuei, brought "... an accen
tuation of the underlying difficulties, namely, racial, economic and social
gulf between the North and the South" 2•And, in the words of Cameron,
"[t]roubles descended on the Sudan in full and harassing measure;
riots came and went; ministers were deposed; crisis followed crisis.
For four years the ... Sudan wrestled with its difficulties, fighting
to impose a sense of national unity and purpose on a divided and
disparate nation through the processes of Parliamentary democracy.
lt was a brave but hopeless effort. The parliamentary groups could
achieve neither a national majority nor a system of co-operation.
In November 1958 ... [the] tottering parliamentary system was
overthrown ... A military coup led by General Abboud abolished
Parliament and took over the administration of the country,
claiming that only thus could the integrity of the Sudan as a national
unit be preserved 3.·'
As a result of the military coup d'état the Constitution was suspended,
Parliament and political parties being dissolved. A Supreme Council of
the Arrned Forces and a Council of Ministers were set up 4.
6. No more success has been achieved under the new régime.The basic
differences and attitudes of north versus south have persisted. Indeed,
good relations between the groups have become progressively worse
correlative to attempts on the part of the dominant northern Government
5
to assimila te and acculturize the southern groups •Revolt of the southem
groups against the pro-northern régime has been the staple diet of the
Sudan. The full facts are obscured, as the three southern provinces were
declared closed districts, thereby eliminating visitors and effective
obserYation.
The southern Ncgroes have struggled to secede, alternatively, to
obtain a large measure ofautonomy under a federal constitution. Their
demands have been refused and large-scale military operations have been
conducted, 6,000 northern troops were moved into the southern area in
~farch 1963. Makuei stated that at the time of writing 600 southerners
had becn killed, a considerable number of southern officiais, chiefs and
civilians had been arrested, and more than 35 villages (not less than
5,000 huts) had been razed 6. Large numbers of refugees have fled to
bordering territories. In January 1963 it was reported that there were
25,000 southern Sudanese refugees in Uganda, IO,ooo in the Congo, 7,000
1 Steinberg, S. H. (Ed.), Stalesman's Year-Book (195_,), p. 341. Vide also Stein
berg. S. H. (Ed.). Statesman's Year-Book (1963),p. 1437.
2 Makuei, L. D.. "Southern Sudan, a test case in afro-arab cooperation"',New
Africa, Apr. 1964, p. 11. Vide also Oduho, J. and Deng, W., The Problem of the
Southern Suda11 (1963). pp. 1-3 and 28-29.
3 Cameron, J.,The African Revolution (1961), pp. 233-234.
• Steinberg. S. H. (Ed.), Stalesman's Year-Book (1963). p. 1437.
s "Revoit in the Sudan", America. 14 Dec. 1•)(',3,p. 758.
6 Markuei. L. D., "Southern Sudan, a test case in afro-arab cooperation··, New
A frica, Apr. 1964, p.12.226 SOUTH WEST AFRIC..\
in the Central African Republic and 500 in Kenya 1.Emergency grants
were made by the United Nations to resettlc refugees 2•A secessionist
movement named [N]Anya_ [A]Nya, committed to violence to achieve
self-determination for Negro southerners, came into being and has
2
carried on terrorist activities • Its circulars state, inter alia: "Wherever
we find a Northerner we shall kill him ... Death to the Arabs, Freedom
for the South" 3.
The southern Sudanese secessionist movement is another instance
where a distinct race wishes to escape the oppression of a dominant
majority. Thus the Southern Sudanese Union claimed that in recent
months the Sudanese Government had killed 700 southern Sudanese,
burned 500 villages and had made 2,000 homeless 4.The United Nations
High Commissioner for Refugees had initiated a fI75,ooo programme for
settling I ,200 refugees from southern Sudan 5• Ian Wright, who had spent
some time in southern Sudan, wrote:
"Even Southerners who are lovai-and there are a lot of them
know that a political solution, a'recognition of southcrn separatism
even, will be necessary in the end 6."
7. In sum, Makuei states:
"The core of the southern problem lies in the northern rejection
to the Sudan becoming a multi-racial State. This is shown by the
northern detèrmination to obliterate African identity by the im
position of the Arabie language, of Islam, and by the subjugation of
the African group economically, politically and socially ... The
ruthless and indiscriminate maltreatment of southerners bv the
military government only crowns an already obvious failure Ôfthe
Sudan as an Afro-Arab State 7."
8. A spread of the revoit occurred during October 1964. Serious
rioting took place in the northern capital city of Khartoum. There has
been a practically complete news black-out, but on the radio President
Abboud has stated that he wouJd revive the 1956 Constitution and appoint
a commission of enquiry. However, President Abboud was overthrown
by a civilian coup d'état at Khartoum on or about 17 November 1964,
shortly after he had dissolved his military junta 8• Subsequently there
were reports from the southern Sudan indicating "that the tempo of
spreading'rebellion there has increased in ·spite oHhe militarrrêgime's
ruthless efforts to stamp it out", that the "insurrection ... has a bitter
ness and brutality reminiscent of the Mau-Mau rebellion in Kenya" and
that it "has pitted African against Arab, reviving the deep racial hatreds
that were engendered among the African peoples of southem Sudan a
century ago by the Arab slave trade" 9 •
1 "Secessionist Southern Sudan", Africa I963, 18 Jan. 1963, pp. 6-7.
2 "Sudan: Southern Strife", Quarterly Economie Review, June 1964, p. ro.
3 "Sudan", Africa Digest,Vol. XI, Xo. 3, Dcc. 1963, p. 74.
•5Daily Telegraph, 24 Aug. 1964.
The Times, 28 May 1964.
• The 1Wanchesler Guardian, 28 May 1964.
1Makuei, op. cit.p. 12.
8 Vide Africa lnstituleBulletin,Dec. 1964, p.334; "In the Sudan; Democracy",
The Star, Johannesburg, r 7 Nov. 1964.
~ Vide report by the New York Times News Service from Khartoum, quoted in
The Star, Johannesburg, 23 Nov. 1964. Annex IX
TANGANYIKA
Although Tanganyika gained its independence in 1961 under a
constitutional structure designed for a two-party or multi-party system,
and had been regarded as the most promising experiment in multi-racial
1
government, it soon became a one-party State in tact , and it still
remains so. In 1963 President Julius Nyerere declared that Tanganyika
should become a one-party State statutorally 2; that year produced a
crop of deportations of people who voiced criticism of the one-party
3
Government, and the formation of opposition parties was quashed • ln
the beginning of 1964 there was a serious mutiny of Tanganyika soldiers,
when the mutineers took over the key points in Dar-es-Salaam. The
mutiny was followed by considerable looting of Asian shops\ 17 people
<liedand more than IOO were injured 5• Reasons advanced for the mutiny
were dissatisfaction with the presence of British officers, and insufficient
pay 4•Ali European officers were dismissed 5• The mutiny was suppressed
only with the help of British soldiers 6• The Government appomted a
Commission to examine what kind of one-party system was most suitable
for Tanganyika; there could be a danger of further measures of repression
against those critical of the Govemment 6•The Govemment had already
decided to merge ail the II trade unions affiliated to the Tanganyika
Federation of Labour into one big union; it appointed ail the officiais
6
from top to bottom without any consultation with the members • This
was done white an estimated 200 trade union leaders out of a total of more
than 500 civilians were being imprisoned 6• A former High Commissioner
for Tanganyika in London, who resigned his post and returned to
6
Tanganyika to form an opposition party, was detained without trial .
Tribal animosities are still alive. In April 1963, a clash between thousands
of Waarusha and Masai tribesmen was only prevented by firm police
action 7• More recently Tanganyika entered into a political association
with Zanzibar under the name Tanzania. According to a recent report
from Associated Press, the Native inhabitants of Tanzania would prefer
the European residents to leave the country 8•The report continues:
"... with Africanisation proceeding, the position of Whites has
become steadily more insecure ... Many Britons drive to work in the
morning, and wonder if they will have been replaced hy an African
by 4.30 p.m. 8"
1 Carter, G. M. (Ed.), Africrm One-Parly States (1962), p. 450.
2 Macadam, I. (Ed.), The A mmal Regisler of World Events: A Review of the Year
1963 (1964), p. 110.
l ibid.,pp. 110-1 I2.
• The l14anchester Guardi,m, 21 Jan. 1964.
' The Times, 22 Jan. 1964.
6 Cox, 1., ..Tension in Tanganyika", in New Africa, April 1964, pp. 12-14.
1
The Times, 15 Apr. 1963.
8 Rand Daily Mail, 14 Dec. 1964. Annex X
TOGO
The former mandated territory of Togoland under French ad
ministration was placed under a trusteeship agreement after the Second
World War. In 1956 the territory became part of the French Union and
universal adult suffrage was introduced • ln 196o itbecame an independ
ent Republic. By 1961 the Comité de l'Unité Togolaise (CUT) was
elected to ail seats,the nominations of the opposition party, the Juvento,
not being allowed to go forward. The former leader of the opposition was
arrested in December 1961 2• Togo thus in effect became a one-party
State. The one-party Government of CUT under President Sylvanus
Olympio ended abruptly in January 1963 when President Olympio was
assassinated and CUT overthrown. A militarv committee took over and
M. Grunitsky, a former prime minister during the period of French
administration, returned from exile in Dahomey and was appointed
President. The National Assembly was dissolved and the Constitution
abrogated 3.
In April 1963 a plot to overthrow the new Government was discovered
and a number of the CUT opposition leaders were arrested \ A new Con
stitution was agreed upon in May 1963-clections were held on a single
list of candidates for the Assembly 4.
1 Vide Il, pp. 519-520.
z "The Opposition in Tropical Africa"Bulletin of the Internalional Commission of
Ju3ists,No. 14, Oct. I962,p. 5.
Steinberg, S.H. (Ed.),Statesman's Year-Book (1963),p.1044.
• Kusing's Contemporary Archives, 1te 8 June 1963, p. 19449. Annex XI
ZANZIBAR
r. The population is heterogeneous, consisting of groups which <lifter
racially, culturally and Iinguistically. ln 1958 there were 228,815 Africans
(sub-divided in different groups), 46,989 Arabs, 18,334 Indians, and small
num bers of others 1.
2. After the first elections on a common roll were held in 1957 con
siderable racial tension between Arabs and Africans became apparent 2,
and during the mid-1961 elections serious racial rioting broke out after
the Afro-Shirazi Party (ASP) had appealed to Africans on a racial basis 3,
68 persons (practically ail Arabs) were killed and 381 injured 4•
3. On ro December 1963 Zanzibar became independent after the
United Nations General Asscmbly had requested the administering
Power to grant Zanzibar independence "... on the basis of universal
adult suffrage" 5.
+ Immediately prior to independence the African-dominatcd Afro
Shirazi Party, although polling more than 50 percent. of the votes, was
defeated by a coalition between the Arab-dominated ZNP {Zanzibar
Nationalist Party) and ZNPP (Zanzibar and Pemba Pcoples Party) 6•
5. African dissatisfaction and racial feeling were so close to the sur
6
face that just over a month after independence, on 12 January 1964,
the Government was overthrown in a military coup d'état, which was
African led by John Okello 7• The revolution was accompanied by many
acts of violence, large-scale looting of shops belonging to Arabs and
Asians, and a large number of persons were killed 8•Okello claimed that
n,995 peopl_ehad died 9 •The Sultan, who was the constitutional Head of
State, fled the country, a Republic was proclaimed, and the leader of the
0 10
Afro Shirazi Party installed as the new President .
The former elected governing coalition parties, the ZNP and the ZNPP,
were declared illegal, ail their property was seized. and the Sultan was
banned from Zanzibar for life Il.The revolutionary President announced
1 Za11eibar, Reference Division, Central Office oi Information, London, Oct.
1962, pp. 3-5.
Colonial Office Report on Zanzibar for the years I957 and I958, p. 1. Vide also
Dunn, C., "\Vhere Arabs and Africans Part?", Observer, 21 July 1957; "Zanzibar",
African Digest, July/Aug. 1958.
3 Zanzibar, Reference Division, Central Office of Information, London, Oct. 196r,
pp. 25-26.
• Britannica Book of the Year, r962, p. 551. Rotberg, R., "The Political Outlook
in Zanzibar", Ajrica Report, Oct. 1961, p. 5.
~G.A ., O.R., Seventeenth Sess., Suppl. Xo. 17 (A/5217), p. 73.
6 Keesing's Contemporary Archives, 7-14 Dec. -1963, p. r977S.
1 "Zanzibar", Commonwealth Survey, 21 Jan. 1964, pp. 72-73.
8 Keesing's Contemporary Archives, 14-21 i\Iarch 1964, p. 19951. Sulzberger,
C. L., "Zanzibar I-Bchind the Clove Curtain", New York Times, 25 Mar. 1964.
9
lbid.This figure is probably exaggerated.
1° Commonwealth Survey. 21 Jan. 1964, pp. 72-73.
11 Keesing's Contemporary Archives, 14 to zr Mar. 1964, p. 19951.230 SOUTH WEST AFRICA
that Zanzibar was to be a one-party State under the Afro-Shirazi Party.
\Vide powers of detention were decreed 1•
6. From statements by the President, Ministers, and Okello, the nature
of the revolution was unmistakable-it was a racial revolution to put the
Africans in control of the Government which they felt was in the hands
of a racial minority 2• Immediately after the revolution Okello said that
he thought it would be "unlikely" that Arabs, Asians and Europeans
would be allowed to become Zanzibari citizens under the new régime 3•
7. Since the coup d'état, and despite the fact that a ban on the entry
of press correspondents was imposed by the new régime reports con
cerning the desperate situation of the Arab and Asian minority have
abounded. It was reported on 23 April 1964 that about r,500 Arabs had
fled the islands under destitute circumstances 5•
The economy of the island is in a chaotic state with the flight 2..nd
expulsion of Arab landowners and merchants 6•
The Times Spedal Correspondent describing the situation after the
1964 revolution estimated that "there could not have been fewer than
7
500 casualties'' and 2,500 persans in prison, detention and refugee camps .
Arab and Asian refugees are leaving the islands under wretched conditio'ns
packed like sardines on dhows 8•The Red Cross International committee
has started a programme to evacuate the Arab minority, as the only
solution to the problem 9•
8. Zanzibar has now been incorporated with Tanganyika to form the
United Republic of Tanganyika and Zanzibar or Tanzania, under Presi
dent Nverere with the Zanzibar leader Abeid Karume as second Vice
Presidei'it. On 9 November 1964 it was reported from Nairobi that
"Zanzibar's leftist revolutionary régime has launched a new campaign
of terror following the discovery of a plot to overthrow President (sic)
Abeid's government" 10.
1
Keesing's Contemporary Archives, I4 to ::r Mar. 1964, p. 19951.
2 "Zanzibar after the Coup", Africa Digest, 16 Mar. 1964, p. 141; Sulzberger,
C. L., "Zanzibar I-Behind the Clove Curtain", New York Times, 25 Mar. r964.
3 "Zanzibar-Lite Returning to ;>;"ormal", Africa South of the Sahara, 23 Jan.
1964, p. 16. .
4 Keesing's Contemporary Archives, 14 to 21 Mar. 1964, p. 19952.
5 Rand Daily Mail, 23 Apr. 19"'4; vide also Keesing's Conlemporary Archives,
9 to 16 May 1964, p. 2005i.
6 Rand Daily Mail, 23 Apr. 1964. Vide also The Star, 30 Dec. 1963.
1 "Zanzibar after the Coup", Africa Digest, 16 Mar. 1964, p. 141.
8 Rand Daily Mail, 23 Apr. 1964; The Star, 3 June 1964.
9
Ibid., 24 July 1964.
10 The Slar, 9 Nov. r964. Annex XII
CE:,.iTRAL AFRICAN FEDERATION OF THE
RHODESIAS AND NYASALAND
r. The Federation between Southern Rhodesia, Northern Rhodesia
and Nyasaland came into being on 4 September 1953. The Federation
was conceived as a progressive experiment in multi-racial co-operation,
built on the cornerstone of "partnership" between Black and White 1•
The Constitution contained in its Preamble the promise that the emer
gent nation would "conduce to the security, advancement and welfare
of all ... inhabitants, and in particular would foster partnership and
co-operation between [the] inhabitants ... " 2•Thus Sir Roy Welensky,
Federal Prime Minister, said: ''Our aim is to achieve a non-racial society
in which a man's ability, not the colour of his skin, will count ."
2. As far as participation in government was concerned, the basic
idea was that no differentiation was to be made on a racial or group basis.
Participation in government was to be granted to all members of the
population on a basis of education, civilization and responsibility alone,
i.e., solelv on a basis of individual merit. In the words of John Graunt,
member of the Federal Parliament, "[t]he only thing we wànt is to have
rule by those capable of ruling, an aristocracy of capabüity, not of colour
and not of race ... " 4. Due to the overwhelming majority of Natives, it
was realized that they would ultimatelv be in the majority as far as
participation in government was concerned. Sir Roy Welensky stated:
"I believe that the African will eventually dominate the voting, but at
that stage I hope he will be an educated and civilized person 5." And Sir
~lalcolm Barrow stated: "\Ve accept the fact that Africans must even
tually govem and we regard it as part of White trusteeship to train them
for that responsibility ... 6'' The basic principle of the policy of partner
ship was accordingly controlled integration, which, in the sphere of
government, involved the creation of a single political unit, with rights
of suffrage granted to all inhabitants, irrespective of race, on reaching
the required standards of civilization.
3. This idea of controlled and gradual evolution was totally unaccept
able to the African Nationalist leaders. The strict voting qualifications
were regarded as a mere subterfuge, and the demand "for one man, one
vote", immediately, was advanced without any hope of compromise 7•
4- Thomas M. Franck, an American observer who is decidedly not un
sympathetic towards the African point of view, comments:
1
Vide II, p. 454 (para. 45).
2 Franck, T. l\I., Race and Nationalism: The Struggle for Power in Rhodesia
Kyasaland (1960), p. 2.
3 Duffy. J.,and Manner, R. A., Africa Speaks (1961), p. I28.
• Federation of Rhodesia and Nyasaland, Debates of the Federal Ass~mbly, Second
Sess., Second Parliament, 28 Mar. to 19 July 1960, Vol. 12, Col. 362.
5 Allighan, G., The Welensky Story (1962), p. 259; vide also WelenskyR., Welensky
4000 Days, p. 324.
6 Allighan, op. cil.p. 259.
7 Vide Il, pp. 454 and 469-470.232 SOUTH WEST AFRICA
"The greatest fear of the radical Congress leaders is that a multi
racial political party or movement could some day really succeed in
capturing the imagination of the races. They keep these movements
under constant attack, for they see them as 'cooling chambers'
designed to pacify without rectifying, as attempts to rob black
nationalism ofits intelligentsia, its leaders and its bankers ... ~They]
thrive in an atmosphere of racial struggle and social discord which
is also frequently in part of their own making.When Garfield Todd
announced . . . that he would stake his political career on
broadening the franchise for Africans, he was heckled and jeered
by Congress agita tors.
The strategy of Congress radicals is to demonstrate to the mass of
the Africans that European liberals are ineffectual, that they are
repudiated by their own race; that only Africans can wrest con
cessions from the Whites, and only by 'direct action'--demonstra
tions, strikes, riots, threats of violence.
Towards those Africans who reject this strategy, radical methods of
persuasion are frequently directed. Boycotts against the shops of
Africans who co-operate with Europeans, social ostracism, and even
magic spells are used as methods of coercion by Congress radicals.
Hut-burnings, stonings and other forms of physical violence ... are
1
also employed .''
It is not surprising that a moderate African :\1inister of the Federal
Cabinet, i\lr. C. A. W. Lewanika, should have stated in 1960: "These
African Nationalists hate multi-racial societies or multi-racial Govern
ment. What they want is only a black Government 2."
In keeping with the above-mentioned approach on the part of Black
nationalist leaders, civil unrest and rioting became commonplace. States
of emergency were declared in the three constituent territories in 1959,
3
and there w~s large-scale rioting and unrest •
5. White support of real multi-racial partnership was in the circum
stances also faltering or lacking. In 1957 an attitude survey was con
ducted by Thomas Franck which indicated clearly that unwillingness to
assimilate and fear were widespread .
In the face of militant demands bv extremist Black nationalist leaders,
the position was reached where reaction set in amongst the White popu
lation. In Southern Rhodcsia, for example, Prime MinisterGarfield Todd
in 1957 staked his political future on a campaign for the extension of
5
suffrage rights to Africans on lower qualifications than previously .
Earl y in 1958 there was a revoit in his own party, and he was forced out.
Sir Edgar Whitehead took over the Prime Ministership, and Todd re
formed his old United Rhodesia Party.
In the June 1958 elections Todd's party was totally eliminated. The
Dominion Party, under makeshift leadership, on a conservative platform,
1 Franck, op. cit.pp. 256-257.
2 Federalion of Rhodesia and Nyasa/a11d, Debates of the Federal A ssembly, Second
Sess., Second Parliamenl, 28 Mar. ta I9 July 1960, Vol. 12, Col. 887.
3 Vide Welensky, op.cil.. pp. 98-99; I14-II5n8-rr9; r21-r23; 127-128; 308-309;
Franck, op.cit.,pp. 62 and 263; Allighan, op.Git.pp. 321-332.
• Vide Franck, op. cit.,pp. 236-247.
5 Vide para. 3, supra. REJOI~DER OF SOUTH AFRlCA 233
nearly toppled the ruling United Federal P1rty, dedicated to the develop
ment of "partnership", from power .
Franck remarks: "The results of the election came as something of a
shock even to the most pessimistic of Rhodesian liberals 1.''
During the ncxt few years Sir Edgar Whitehead, under strenuous
pressure, attempted to2speed up the process of integration implied by the
"partnership" idea ,and predicted that on the 1961 Constitution and
franchise arrangements there would probably be an African majority in
the Legislative Assembly within about 15 years' time 3•
The intransigent attitude of Black nationalist leaders\ however,
resulted in a considerable hardening of opinion amongst the White
population. The ruling United Federal Party of Sir Edgar Whltehead was
defeated in the December 1962 elections by the more conservative
Rhodesia Front Party, and since then insistent daims for independence
on the basis of the present Constitution have been advanced. The harden
ing of White opinion is clearly evidenced by the statements of the present
Prime ;\finister, Ian Smith:
"\Ve believe you can't force integration on people who don't
5
want it ."
"You have to make up your minds whether you are going to
maintain standards or are prepared to compromise. I say if you are
prepared to compromise it is the end. H we give in we have no option
but to get out.
I can tell you, as far as I am concerned-and I am speaking for the
Government-we have made up our minds. Neither will we give in,
neither will we get out.
\Ve have to stand firm. We have to maintain the standards of
civilization we brought here and we have to insistas far as South
ern Rhodesia is concerned that decisions shall be made by South
ern Rhodesians 6."
"As far as we are concerned, if anybody thinks they can interfere
in our affairs and tell us how to run our country and how to lower
our standards to appease outside opinion in the afro-asian bloc,
then I say to them that will be the bloody day 7."
And he has been reported on several occasions to have said that the hand
over of political power to the Africans would not take place in his lifetime.
It has been commented that the growing pressure to hand over power
to the African nationalists will be contested by the Rhodesian \Vhites to
the end, and that after "the throwing overboard of 'partnership' by
both the Africans and the \Vhites" the alternative of a voluntary hand
over of power to the Africans can be dismissed 8•
It is manifest that an impasse has been reached in the attempted
integration of the different population groups in Southern Rhodesia into
a single integrated politica\ unit. Jnstead of bringing the population
2 Vide Franck, op. cit., pp. r93-r94.
3 For Constitutional developments vide II, pp. 509-510.
Ibid., p. 470.
• Ibid., pp. 469-470.
5 The Star, 17 July 1964.
• Ibid.,20 July 1964.
7 Windhoek Adverliser, 8 June 1964.
• Sunday Times, 6 Dec. 1964. · SOUTH WHST AFRICA
234
groups doser together, as had been hoped, the method of political devel
opment advocated by Applicants is now producing the opposite result.
It wou1dappear as if creation of a sing1e integrated po1itica1 unit, in the
African context, often leads to an eventual choice between onlv two
altematives-to dominate, or to be dominated. ·
6. ln the meantime opposition to the Federation on the part of Nyasa
land and North Rhodesian Black nationalists became extreme. The
Monckton Commission found that "[t]he dislike of Federation among
Africans in the two Northern territories is widespread ... lt is almost
pathological 1". The United Kingdom Government in December 1962
accepted in principle that Nyasaland should be allowed to withdraw from
the Federation, and on 31 December 1963 the Federation was dissolved.
This "partnership" was dead, and with it all idea of "showing of
power"-as was commented by Elspeth Huxley in 1963 and by Patrick
Wall, Conservative British M.P., in January 1964 •
7. Nyasaland became the independent State of Malawi on 6 July
1g64 under the Prime Ministership of Dr. Banda. Wîthin a few months
after independence there was a serious revolt in the Cabinet, and six of
the l\linisters were forced out. The refusai of Dr. Banda to rush Afri
canization was reported to be a major reason for the revoit 3. Assaults
and intimidation were widespread, and it was reported that "democratic
rule is being replaced by dictatorial power and political intimidation" 3•
It was further reported:
"Political intimidation is an old practice in Malawi, but it came
into the limelight earlier this month when Dr. Banda began to use it
against some European residents who, ironicaUy, had been among
his most enthusiastic supporters before independence 4.''
1 Report of the Advisory Commission on the Reviews of the Constitution of
Rhodesia and Nyasaland, Cmnd.Paper1148, para. 27.
1 Vide Chap. VII, paras. 8-9,in/ra.
3Sunday Times, rs Nov. 1964.
• Ibid. Vide also Sunday Times, 8 Nov. 1964; The Star, 11 Nov. 1964. Annex XIII
INDIA AND PAI<ISTAN"
I. Partition between India and Pakistan came about after a long
period of agitation, rioting and civil unrest.
In l\larch 1940, 100,000 members of the All-India Muslim League
met in Lahore and passed a resolution which committed them to the
attainment of their own land of Pakistan. No constitutional plan for
lndia would work, thev declared, unless those areas in which the Mus
lims were in a ma jority, as in the north-western and eastern parts of the
country, were grouped into independent states of which the constituent
units would be autonomous and sovereign. . .
This "Lahore Resolution", backed by the majority of the leaders of
British India's So million Muslims, was an absolute indication that they
would never agree to belong to a frce united India which, because of the
religious divisions among the population, would be predominantly Hindu
in character and government 1.
2. The demand for the independent State of Pakistan was based on the
fact that the l\luslims and Hindus could not successfully live side-by-side
in a single political organism. Callard comments:
"\Vith the history of Western Europe in mind, it is easy to main
tain that in a modern democratic state all citizens should be equal
without regard to colour, creed or race. But in Pakistan the history
of more than one generation had emphasized the incompatibility of
Muslim and Hindu 2."
"The two-nation theory, howevcr, is essentially a modification of
the Western political theory of the right of national self-determina
tion. As a political movement,. the 100,000,000 Muslims of India
asserted their nationhood and demanded an independent state.
Before 1947 this idea of a stat_ehad no specific boundaries. Pakistan
was in no sense the product of sentiments of Punjabi or Bengali se
paratism. The l\Iuslim homeland was an area, any_viable territory,
· which could support the majority of true believers 3."
3. Ail efforts were made to keep the country together. In late 1946,
representatives of the :111uslim League wcre induced to enter the Interim
Government, but no true co-operation followed.
Mellor comments hereon:
"This executive union of two parties which had opposed each
other for a generation was achieved during fearful and unprecc
dented communal riots which occured in Bengal and Bihar during
theautumn, but it provedratheran illusory step forward for the Vice
roy soon found himself faced with an apparently insoluble dilemma.
Though the .MuslimLeague had joined the Government it refused to
1 l\lellor, A., lndia since Partiti(r95r),Jl,1.
2 Callard, K., Pakistan: A Potitical Study (1957),p. 233.
3 Ibid.,p.236. SOUTH WEST AFRICA
236
send its representatives to the Constituent Assembly which ... had
rejected the idea of Pakistan 1.''
4. Rioting became intense. l\Iellor remarks that-
"[t]he dividing line between non-violent agitation and open violence
in India is indistinct ... a chance blow from a policeman's stave, a
hurled brick or a particularly vicious epithet can quickly transform
the most peaceful meeting into a riot, especially when communal
passions are aroused. This kind of change now took place in the
Punjab ."
"The riots spread quickly. Lahore, Amritsar, Multan, Rawalpindi
and many other Punjab towns and villages were seriously affected
by pitched battles in which the rival communities fought with sticks,
stones, knives, swords and firearms. At least 4,000 people were
killed and much property destroyed by fire 3 ',
and says that "... the riots had, perhaps, created the first rough frontier
of a new land" 3•
5. The conflict potential was so great that separation was inevitable.
The Viceroy said in a broadcast:
"For more than a hundred years 400 million of you have lived
together and the country has been administered as a single entity.
This has resulted in unified communications, defence, postal services
and currencv; an absence of tariffs and customs barriers; and the
basis for an.integrated political economv. My great hope was that
communal differences would not destroy" this ... But there can be
no question of coercing any large areas in which one community
has a majority to live against their will under a Government in
which another community has a majority. And the on1y alternative
4
to coercion is partition ."
6. The principle of partition was then accepted by ail parties. After a
number of referendums a Boundary Commission's members could not
agree, and the final lines between the two countries were drawn bv the
independent Chairman, and came to be known as the Radcliffe aw;rd 5•
Both the areas delimited contained substantial religious minorities;
violent rioting followed. Mellor remarks:
"It is known now that altogether some 12,000,000 people moved
between the two countries; over 6,000,000 fleeing from fndia and
6,000,000 from Pakistan. The number killed cannot be accurately
estimated but it is unlikely that it was less than 200,000 and it may
well have been far more 6."
1 Mellor, A., India since Partition (1951), p. S.
2 Ibid., p.I ,.
l Ibid., p. 12.
• Ibid.,p. 26.
~ Ibid., p. 38.
6
Ibid., p.45. Annex XIV
CYPRUS
r. The two groups on the island are the Greek Cypriots (81 percent.
of the population, preponderantly adhering to the Christian faith) and the
Turkish Cypriots (19percent. of the population, preponderantly adhering
to Islam) 1•
2. The differences between the two groups, who have lived together
for centuries without extensive intermingling, are concemed mainly with
religion and with conflicting national aspirations. The Greek community
has been inspired by the idea of enosis, or union with Greece 2. The
Turkish Cypriots have vehemently opposed this idea, and have propa
gated separation, or alternatively a loose ferlerai type of state granting
them a measure of autonomy 3.
3. The 1960 Constitution under which Cyprus bccame independent 4
is based on the conception of a unitary state, to be governed on a partner
ship basis by the two communities. The Constitution rigidly <livides the
population into the two communities 5, provides for a Greek Cypriot
President 6,a Turkish Cypriot Vice-President 6 ,rigid percentages in which
the two groups are to participate in the civil service, the armed forces,
the police force, etc. 7,and prescribed methods of separate voting by the
8
members of each community •
4. Due to the basic differences mentioned above, the two groups have
been unable to assimilate, and tensions vastly increased during the cam
paign for independence, reaching fever pitch in December 1963, and
through the first months of 1964 9•Terrorism has been and remains wide
spread since 1955, the constitutional system of government has apparent
Iy pro\·ed completely unworkable, and conditions amounting to civil war
have prevailed 10•The Turkish Cypriots occupy a number of enclaves and
certain portions of the large cities, the Greeks the rest 11•Access by mem
bers of the one group to an area occupied by the other isdangerous u, the
ordinary business of govemment has beèn disrupted 12, thousands are
' Vide Cyprus, A Handbook on the Island of Aphrodite, issued by the Publications
Department of the Greek Communal Cham ber, Cyprus (1964), p. 7; Kingsl>ury, R. C.,
An Atlas of Middle Eastern AtfaiYs (1963), p. 58.
2 Cyprus, the Facts, Central Office of Information, London, p. 3; Spyridakis,
C., A Brie/ History of Cyprus, pp. 66-67.
3 Look, 2 June 1964, p. 37.
• Vide The Europa Year Book r963, p. 374.
5 Ibid. (Articles 2-5 of the Constitution).
6
Ibid. (Article r of the Constitution).
7 Ibid., p. 375 (Articles 122-125 and 129-132 of the Constitutionj.
8 Ibid. (Articles 61-111 of the Constitution).
9 The Ammal Register of World Events r963, pp. 128-129; Report by the Secretary
General on the United Nations Opera/ions in Cyprus, U.N. Doc. S/5959 of 10 Sep.
1964, paras. 45.87.
10 U.N. Doc. S/5950, of ra Sep. 1964, paras. 45-87.
11 Ibid., paras. 103-105.
12 ibid., paras. 106-140 and 145-155. SOUTH WEST AFRICA
1
suffering chaos and misery and many have <lied • The United Nations
organized a peace force of more than 6,000 men 2 on the island to bring
an end to military and terrorist operations and bloodshed, but despite
its presence, a solution seems as far away as ever.
The Secretary-General states in his latest report 3 that-
"... even at its lowest level, the tension in Cyprus is dangerously
high. Between the two communities which make up the local popu
lation, there is deep-rooted suspicion and mistrust. Each side is
constantly in fear of being attacked by the other."
5. The solution of this problem of inability and unwillingness to
assimilate has not yet materialized. Sorne observers have proposed
separation, others have suggested that the only satisfactory method
would be to repatriate the Turkish Cypriots to Turkey, leaving the island
to the Greek Cypriots f. Only time can tell what the best solution would
be.
1The Annual Registe, of World Evenls z963, p. 129; U.N. DO&.S/5950, paras.
47-48 and 87.
2 Ibid.,para. 3.
3 Ibid., para. 46.
4 Kelly, E. F., "Preventing a Holocaust", Cyprus Bulletin (7 July 1964). Annex XV
GREAT BRITAlN
1. Over the last ten years great numbers of immigrants, mostly non
White, have been pouring into Great Britain. The flow of immigrants
from the older Commonwealth countries has remained fairly static, but
the stream from the newer members grew rapidly until 1962 1, when an
Act was passed to control the influx of immigrants 2• It is estimated that
the total net immigration from the Commonwealth between 1946 and
1962 was 659,250, including 263,200 from the West Indies, 150,900 from
3
lndia and Pakistan, 20,400 from West Africa and 8,900 from East Africa •
By the beginning of 1964 there were some 720,000 Commonwealth immi
grants settled in Britain (excluding children born there),of whom roughly
275,000 were West lndians and 200,000 Indians or Pakistanis 4. In Sep
tember 1964 the London Times reported that according to the most
reliable estima tes there were I million or nearly I million coloured people
living in Britain, including children 5•Commenting on this fact, the news
paper said:
"Thus Britain today, with a coloured population nearing two per
cent. of the whole, must rank as a plnral society with a race problem
of its own. Particularly is this so because the coloured population
tends to congregate in certain places, and in these manifestations of
colour feelings are increasing because of the creation of tensions in ail
the important social areas, particularly housing, health and schools 6•''
2. The process of integrating the new immigrants into Britain's society
has given rise to many difficult problems. In the field of housing, for
instance, the coloured immigrants have encountered a great deal of
colour prejudice and discrimination against them: as a result they have
found it extremely difficult to obtain accommodation, whether in rooms,
fiats or hotels, or to lease or buy houses, irresµective of their social sta
tus 7; in one suburb of London the White residents' association entered
into an agreement with a local estate agent to prevent coloured peoplé
1 Commentary /YOm Britain: Why Britain is httroducing Immigration Rules,
issued by the U.K. Information Services in Johannesburg on 2 ){av. 1961.
2 Vide, para. 5, infra.
3 Deakin, N. (Assistant Director of the Survey of Race Relations in Britain being
undertaken by the Institute of Race Relations), "Residential Segregation in Britain;
A Comparative Note", in Race, Vol. VI, No. 1, July 1964, at p. 19.
• ibid., at p. 18.
~ The Times, 17 Sep. 1964.
6 Ibid. (Italicsadded.)
7 Coloured Immigrants in Britain. An Investigation carried out by the Institute
of Race Relations, by J. A. G. Griffith, Judith Benderson, .Margaret Usborne,
Donald "'ood, at p. 21; "Recent Research on Racial Relations: Britain", by An·
thon y H. Richmond, in InternationalSocial Science Bulletin, Vol. X, 195S, Part l, at
p. 363; "\Vhen Your Face is the \Vrong Co!our", in 20th Century, Vol. 172, Xo. 1017,
Spring 1963, at pp. 38-39; "Race Trouble in Birmingham, England, Too", in U.S.
News and World Report, Vol. LVI, Xo. 12, 23 ;\Iar. 1964, at pp. 103 and 10,t. SOUTH \VEST AFRICA
from buying or renting homes in the district 1;sometimes, when coloured
people move into a neighbourhood, many White residents move out 2 •
In employment, too, coloured people have encountered racial discrimina
tion: they experience difficulty in finding jobs at anything except menial
labour, regardless of their qualifications 3; they have met with hostility
from \Vhite workers "; in some areas a quota system appears to be in
operation, restricting coloured employees to a certain percentage of the
total nurnber of employees 5, and some employers refuse to employ a
mixed labour force 6.Socially, Negroes in general occupy the lowest rating
in the scale of social distance of different types of immigrant 7•
3. According to an American report, the coloured immigrants of
Birmingham in England (75,000 out of a total of about I million) are
running into colour prejudice almost everywhere that they corne into
contact with Whites: a survey revealed "a picture of racial antagonism
and discrimination familiar to many U.S. cities" 8•The London Times
recently published an article titled "Intense Passions over Colour", in
which the following comments appeared:
"The leaders of opinion in Britain are generally unfamiliar with
the practical awkwardnesses which rise where different cultures are
thrown together in competition for the necessary things of life ... the
sudden impact of large numbers of coloured workers on inland
towns unused to them has in many cases produced hostility, /eading
9
even on occasion to violence ."
4. The Conservative Government did not feel that legislation would
solve the problem of racial discrimination 10;a considerable and respect
able body of opinion believes that social and persona! attitudes to colour
ed persons and the discrimination which flows from them are not amen
able to legal contrai orought not to becontrolled bv law, inter alia, bccause
legislative and administrative intervention (as· opposed to education)
would, far from reducing discrimination, tend to increase it by causing
further resentment and creating more publicity u. In the recent British
election, the colour problem in Britain was not overtly a political issue;
but the London Times commented that covertly, it was one of the few
issues, possibly the only issue, which was really capable of arousing deep
seated political passions of old-fashioned intensity 12, and it is generally
accepted to have played arole in the results. Thus one defeated candidate,
in explaining his lack of success, said:
"I am afraid my friends overseas will find the answer disturbing.
----
1 Daily Telegraph. 30 June 1964; The Daily Herald, 29 June 1964; The S1mday
Times, 18 Aug. 1963.
2 U.S. News and World Report, toc. cil., at p. 103.
3 ibid., at p. 104.
• International Social Science Bulletin, loc. cit.at p. 361.
~Coloured Immigrants in Britain, op. cit., at pp. 30 and 145.
6 The Dai/y lierald, 1 l\fay 1963; Daily Telegraph, 31 :May 1963.
7 Coloured immigrants in Britain, op. cit.,at p. 108.
• U.S. News and World Report, pp. 102-103.
• The Times. 17 Sep. 1964. Racial issues have flared in cities such as Bristol,
Doncaster, \Vaball, Bradford. Bolton and \Varwick, and there have been sporadic
outbursts of violence in London: U.S. News and World Report. loc. cit .. p. 104.
1
11 Coloured Immigrants in Brilain, op. cil..at p. 174.
1 Ibid .• ap. 173.
2 The Times, 17 Sep. 1964. REJOI"'DER OF SOUTH AFRICA
I was defeated because the electorate identified me with the 'col
1
oured peoples'. I was rejected as a 'nigger-lover' ."
And a commentator wrote recently:
"Coloured immigration and the racial problems it involves became
General Election issues for the first time this year. It is unlikely to
be the last time 2."
5. At the time when the British Act to control immigration was being
introduced, the United Kingdom Information Services in Johannesburg
issued a comment on the measure which contained the following passages:
"The heavy influx has already led to some acute local problems
in varîous parts of Britain. For instance, migrants have tended to
concentrate in certain districts in London and in industrial areas
elsewhere in the country; in spite of the strong racial tolerance that
is the trait of Britain, strains could easily develop into clashes between
immigrants and the local population.
The proposed Iegislation, while certainly not designed to discrimi
nate on grounds of race, will in practice mainly affect immigrants
from the newer Commonwealth countrics because it is the incrcase
in the number of these immigrants which has led Her Majcsty's
Government to take this action.
Taking everything into consideration ît bccame obvious to Her
Majesty's Government that some form of control was essential,
both to reduce the risk of a social and economic strain inherent in the
existence of imassimilated commimities and to provide itself with powers
to regulate the flow of immigrant labour as future economic conditions
might require 3." (Italics added.)
Despite a reduction in the numbers of immigrants entering Britain as a
result of the application of the Act, there have recently been numerous
4
demands for further restrictions on immigrants •
' The TYibime, 23 Oct. 1964.
2 Sherman, A., "Immigration after Smethwick", Daily Teiegraph, 28 Oct. 1964.
3 Commenlary /rom Britain, op. cil., footnot1, p. 270, supra.
• The Sirnday Times, 18 Aug. 1963. CHAPTER IV
RESPONDENT'S POLICIES: POST-WAR ADJUSTMENTS
I. Respondent demonstrated in the aforegoing Chapter that the
results of applying the "norm" of universal adult franchise in a cen
tralized administration have often been calamitous, or at least un
desirable, particularly where there ·existed well-defined ethnie differences
within the population of the State concerned. The existence of such
differences in South West Africa has presented Respondent also with
intractable problems in framing its policy. ln the Counter-l\lemorial 1
Respondent indicated the difficulties that must be faced in complying
under present day circumstances with the obligations of the sacred trust.
Basically the problem concerns methods of enabling the ultimate exercise
of self-determination by the members of certain groups without at the
same time in effect depriving the members of other groups permanently
of the self-same right. In South Africa itself Respondent endeavours to
solve this problem by a policy of separate development, which is a culmi
nation of policies of segregation or apartheid deeply rooted in South
African history 2•The purpose of the policy of separate development is to
eliminate all forms of racial friction by the creation of separate homelands
for the rnrious indigenous groups, in which-they will be able to de\·elop to
their full capacities and exercise complete self-determination 3•
Ha\·ing regard to the specific problem of the future of South West
Africa and its peoplcs, Respondent, as has been noted 4,could by way of
solution see no alternative to an approach involving similar objectives
and principles to those of the South African policv of separate develop
ment. For this reason, and also to accelerate developments in all spheres,
Respondent appointed the Odendaal Commission, the composition and
terms of reference of which are set forth in the Counter-Memorial 5.The
report of the Commission has confirmed Respondent's view that separate
development has indeed represented the onlv general trend of policy
which can provide adequately for the needs, the accelerated advancement
and the ultimatc self-realization of all the inhabitants of South West
Africa 6.
For reasons set out in the Counter-Memorial 7,Respondent has not yet
taken a decision on certain recommendations of the Commission, although
the report was accepted in broad principle. Respondent has made it clear,
however, that such acceptance-
" ... inter alia, involves agreement with the Commission's finding
that the objective of self-determination for the various population
groups will, in the circumstances prevailing in the Territory, not be
1 II, pp. 458-460.
2 Ibid., pp. 461-466.
l Ibid .. pp. 46(,-472.
• Ibid.pp. 472-.t76.
5Ibid., pp. 476-477.
6
7 Vide R.P. Xo. 12/1964
IV, pp. 213-21f,. REJOI!\'DER OF SOUTH AFRICA
promoted by the establishment of a single multiracial central
authority in which the whole population could potentially be re
presented, but in which some groups would in fact dominate
others .... The Government also endorses the view that it should be
the aim, as far as practicable, to develop for each population group
its own Homeland,1in which it can attain self-determination and
self-realization ."
By way of illustration of the dcvelopment possibilities inherent in the
policy of separate development, Respondent also gave a brief survey in
the Counter-Memorial of certain of the fruits of that policy in South
Africa 2•
2. The systematic explanation in the Counter-i\Iemorial of the back
ground content, implications and results of the policy of separate dcvelop
mcnt as summarized above, did not elicit any comparably systematic or
comprehensive reply from Applicants. On the contrary, Applicants in the
Reply largely ignore Respondent's exposition, but nevertheless proceed
to present assertions in conflict therewith, without, however,attempting
to show why their assertions are to be preferred to Respondent 'sreasoning.
1t will be best, therefore, to deal with Applicants' argument in the Reply
with reference to the various points (isolated though they are) on which
their averments and contentions meet, or conflict with, Respondent's
expositions.
3. The first, and fondamental, issue between the Parties relates to the
method whereby political advanccmcnt of the inhabitants of the Terri
tory is to be secured. Respondent was at pains in the Counter-Memorial to
dcmonstrate that the only realistic alternative to separate development
was domination of the whole Territory by majoritv Native groups (or,
possibly, by a despotic régime derived from them):Respondent empha
sized particularly that there was no middle course-ail expedients and
manipulations intended to achieve such a course really being just sligh3ly
more extended ways of arriving at majority rule by Natives • The
correctness of this assessment not only has been borne out by
further events in Africa • but is confirmed by the attitude adopted
by Applicants in the Reply. They urge, without any qualification
abolition of ail differentiation between groups, treatment of the whole
population as a unit. and universal adult suffrage -claims which have
also been pressed by majority groups at the United Nations in recent
years.
4. The implications of Applicants' attitude are of great importance.
A policy or system of government cannot be properly evaluated by
wcighing it against theoretical standards of perfection, and, if found to
have some adverse consequences in some respects or under some circum
stances for some people, be condemncd as a policy which does not pro
rnote we11-being and progress to the utmost. This applies particularly to
the policy of separate development, which was designed to strike a
balance between extremely complicated human interests and needs, and
therefore cannot possibly be expected to serve the advantage, short-term
1 IV, p. 2r3.
1 Il, PP·477-483.
' Ibid., pp. 468-471 and 473 (para. 27).
• Vide Chap. III, supra.
5 Vide IV, p. 44r.244 SOUTH WEST AFRICA
and long-term, of all persons at ail times and under ail circumstances.
The mere fact, therefore, that it may have some disadvantages, in
particular respects, cannot serve to condemn it as violative of Article 2,
paragraph 2, of the Mandate. For a proper evaluation of its merits, it
must be weighed against possible alternatives. And, as noted above, the
only real alternative, and the one suggested by Applicants, is attempted
integration, which must inevitably lead to domination by a majority
Native group or groups, or a dictatorial clique derived from them. Clearly,
this alternative would also have unavoidable disadvantages, in addition
to such advantages as it might have. Therefore, anyone attempting to
choose, on merit, a policy best calculated to promote to the utmost. can
do so only after placing in the scales all the respective advantages and
disadvantages of each of the onJy two real alternatives.
5. At no stage in their pleadings do Applicants approach the funda
mental issues in this case in the manner indicated in the preceding para
graph. They never attempt any serions assessment of the advantages and
disadvantages of the policy advocated by them: they virtually content
themselves with the fact that United Nations organs have advocated
such approach in regard to South West Africa and other territorics. For
the rest, they concentrate on pointing out the disadvantages, real and
imaginary, of Respondent's policy of separate development, or its appli
cation. Their allegations in this regard are of two kinds. Sorne are directed
towards showing that separate development is an intentionally oppressive
policy. Others, however, faH short of this extreme, and are advanced
merely in order to show that separate development has adverse effects in
certain respects. Evidence of the latter type can clearly not assist Appli
cants. Even in an evaluation purely on merit, the existence of disadvan
tages can have no material significance-they have, as shown above, to
be brought into account in the total picture. But the matter docs not
end there. As has been shown, it is not the function of this Court to found
its decision on an evaluation purely on merit, but on the basis whether a
Mandatory which makes such an evaluation, can bona fide,in the exercise
of its discretion, corne to the conclusion that separate development is the
policy best calculated to promote well-being and progress to the utmost. 1.
1t is patent that, in such an enquiry, the mere demonstration of d1s
advantages or defects in the policy chosen by the Mandatory, cannot in
itself justify condemnation of such policy as being violative of the
Mandatory's obligation.
6. When considering Applicants' detailed points of criticism, the Court
should, it is respectfullysubmitted, bear in mind the above considerations,
the cogency of which is increased in the present case by the fact t~at
Applicants do not scriously attcmpt to meet Respondent's case regardmg
the advantages of separate development as compared with attempted
integra~ion as a possible policy for South West Africa. These adv~ntages
2
were d1scussed in the Counter-Memorial and may be summanzed as
follows:
(a) Separate development is not a policy of domination, but the very
antithesis thereof-it contemplates evolutionary termination of
1 Vide Part II 1, sec. C, para. supYa.
2Il,pp. 466-473. REJOINDER OF SOUTH AFRICA 245
guardianship in a manner calculated to lead to peaceful co-existence.
Attempted integration, on the other hand, must, in the circumstance
prevailing in South West Africa, inevitably lead, at least, to domina
tion of some groups by others.
(b) The aim of separate development is justice for all, not only for
some. It seeks to avoid a situation where the exercise of self-deter
mination by some of the inhabitants would involve the denial of
self-determination to others.
(c) Separate development seeks to prevent a situation in which the
more developed groups, which are at present responsible for the
economic progress and high standards of administration and
prosperity in the Territory, may be swamped and probably forced
out of the Territory by much less advanced groups with entirely
different values and outlooks.
(d) i'.l'loreover,parate development would not involve, as attempted
integration would, the abdication of the sacred trust regarding the
least developed groups, which would undcr the latter policy be
left at the mcrcy of a new majority government with competing
interests and possible hostile inclinations or intentions, as was the
position in the past.
(e) Separate development avoids the deleterious results of ignoring
ethnie differences, loyaltiesand reactions which manifest themselves
strongly when one people feels its existence or basic interests
threatened bv another. Such results, as noted above 1, have often
inc]uded tension, unrest, hostiJities and bloodshed, and, in Sorne
cases, the imposition of ruthless dictatorial rule in order to suppress
the tensions in question.
(!) Avoidance of tension and group reactions of self-preservation
is securcd by separate development not only in the political sphere,
but also in the economic life of the country. This policy provides
parallel, protected spheres of economic interest for the various
groups, in which their members can advance without constituting
or being regarded as a threat to other groups, as compared with
well-known forms of discrimination and resistance almost in
variably encountered where integration between differing groups
is sought to be attained against the wishes of one or more of such
groups.
(g) Separate development renders possible constructive co-operation
between White and non-White groups, on a basis of equality, to
their mutual benefit-in contrast with the fate which has befallen
White minorities, in other African countries handcd over to Native
rule-to the detriment of all.
{h) Separate development renders possible the achievement of self
determination by various groups at different points of time. This
implication avoids unnecessary delay in the attainment of self
determination by more advanced groups merely because of lack of
advancemcnt and maturity on the part of othcr groups. Conversely,
it involves for the latter groups the safeguard of retention by
Respondent of the sacred trust obligaüons towards them even after
1 Vide Chap. III, rnpra. SOUTH WES"f AFRICA
other groups may have chosen independence in the exercise of their
right of self-determination.
(i) Finally, separate development leaves to the free will of the groups
concerned the ultimate decision whether, and in what form and to
what extent, they will link up or co-operate with others, inter .~e.
politically, economically and otherwise-as opposed to forcing
upon them a pre-determined system whether unitary or federal,
which some may feel to constitute a threat to their existence,
interests or identity.
ln short, separate development is intended and calculated,
negatively, to avoid the human tragedies which have occurred,
and are occurring, in African territories such as the Congo, the
Sudan, Rwanda 1,and others, as well as in the systems of ruthless
dictatorship found necessary in so many other territories with a
1
view to maintaining even a semblance of order .Positively, separa te
development envisages the establishment of a system of peaceful
and friendly Co-existence, based on mutual respect for one another's
identity, culture, right to existence and human dignity, coupled
with fruitful co-operation in matters of common concern. Attempted
integration, on the other hand, involves inevitable injustice to mi
nority groups-the highest and the !east developed ones-inevitable
retrogression in standards of economy and administration, and a
very high degree of probability of a repetition of the human tragedies
of other terri tories, or ruthless dictatorial rule, or both.
7. Naturally the advantages of separate development, as outlined
above, can only be obtained at a price. Boundary lines have to be drawn,
politically, territorial!y,and in the economic sphere. Unpopular control
measures require to be maintained during the period of evolutionary
transition towards peaceful attainment of the ideals. In all such regula
tory processes individual interests sometimes have to be abated for the
benefit of the larger cause of the whole community, and whole commu
nities may have to pay some price for an overriding advantage. Such
contributions and sacrifices would, however, in the further application of
the policy of separatedevelopment inSouth West Africa. not be demanded
only of some groups, to the exclusion of others. Aswill be demonstrated in
the more detailed treatment below, members of ail groups would be
affected by reciprocal restrictions on political and economic opportunities
and other facilities in the homelands of other groups. Transitional steps,
e.g., moving to a new home, would affect at least some members of all
the groups. Specifically as regards the White group, alleged by Applicants
to be specially favoured, it will be noted, e.g., that not only would a large
number of them have to give up fanns owned and developed by them.
but the group as a whole would, through the public revenues, have to
make very substantial economic contributions to the accelerated and
large-scale development of the non-\Vhite homelands and the upliftment
of the non-White peoples.
That some members of the non-White peoples would also be ad,·ersely
affected in some respects, or would have to make special contributions or
sacrifices, cannot be denied. But in Respondent's view the extent thereof
is very minor as compared with the over-all benefits involved for their
t Vide Chap. III,su/na. REJOIND,ER OF SOUTH AFRICA 247
respective peoples, and indeed for all the inhabitants of the Terri tory, as a
whole. This aspect is further considered in the next Chapter, where
various points of attack and criticism advanced by Applicants against the
policy of separate development are dealt with against the background of
what has been stated above. These concern both Respondent's motives
regarding the policy, and alleged aspects of adverse effects 1•
1 Vide para. 5, supra. CHAPTER V
RESPONDENT'S GENERAL POLICY: ATTACKS THEREON BY
APPLICANTS
A. The Charge of Mala Fides as now Formulated
r. For convenience, Respondent here repeats the basic charge which 1
Applicants now formulate, and which Respondent has demonstrated is
clearly stiH based on an aHegation of bad faith on its part. The charge
reads as follows:
" ... Respondent's policy and practice ... is (sic) directed toward the
primary end of assuring an adequate 'Native' labour supply in the
Territory, particularly in üs 'White' Police Zone (comprising more
than seventy per cent of the Terri tory), subject always to the
condition that, in the words of Respondent's Prime Minister, 'Therc
is no place for him [i.e., the Bantu] in the European community
above the level of certain forms of labour' 2".
This statement is introduced by the words "as will be shown", and is
followed by a number of unsubstantiated assertions regarding e2ch of the
aspects of "educational apartheid" 2, "economic apartheid" , "political
apartheid" 3, and "policies ... in respect of rights of security of the
persan, residence and movement" ". As noted 5,these assertions lead up
to the following conclusion: "In sum, under apartheid. the accident of
birth imposes a mandatory life sentence to discrimination, rcpression and
humiliation •."
The question for determination in the present Chapter is in how far
the above charge, assertions and conclusion are supported by anything
contained in the discussion of general principles in Chapter IV B of the
6
Reply. As Respondent has already indicated , consideration will be
given in latersections to Applicants' specific charges relating to education,
political rights, the economic aspect, etc.. and it is consequently u~
necess~ry at this stage to deal with the general assertions made by Apph
cants m the present context with reference to these aspects.
2. Before proceeding to consideration of more detailed criticisms of its
policies, Respondent proposes to deal generally with the three crucial
aspects of the charge, viz., that-
(a) the "primary end" of Respondent's policy is that of "assuring an
adequate 'Native' labour supply ... in its 'White' Police Zone";
(b) the" 'White' Police Zone" comprises "more than 70 percent. of the
Terri tory";
(c) Respondent's policy envisages that there will be "no place for him
1
Vide Chap. I, para. 2, supra; sec. A, para8. 2-10, supra; Part C, paras. 32-39,
supra.
2 IV, p. 272.
3 Ibid.,p. 273.
• Ibid.,p. 274.
5 Vide Chap. I, para. 2, supra.
6 Ibid.,para. r, supra. REJOI:S:DER OF SOUTH AFRICA 249
(i.e., the Bantu] in the European community above the level of
certain forms of labour''.
As will be shown, the contentions stated in (a) and (b) are totaHy
untrue, and the quotation referred to in (c) is cited out of context,
creating a wrong impression. Moreover, the whole charge obviously
ignores altogether the Odendaal Commission report, and Respondent's
reaction thereto.
3. As regards para. 2 (a): Not a jot of evidence is offered in the whole
of Chapter IV B in support of Applicants' contention in this regard. ln
particular, they make no attempt to indicate how this assertion can be
reconciled wîth the recommendations of the Odendaal Commission re
garding the extension and intensive development of homelands. It is
consequently impossible for Respondent to deal with this accusation,
save to say that it is unsubstantiated and unwarranted.
4, As regards para. 2 (b): By referring to the " 'White' Police Zone
(comprising more than 70 per cent. of the Territory)" 1, Applicants
seek to convey the impression that an area comprising 70 percent. of the
Terri tory has been set aside or reserved by Respondent for occupation by
Whites. Elsewhere in the Reply they refer to "the 70 per cent. of the
Territory set aside as the 'real home' of the 'European' inhabitants" 2,
and to the ''pre-emption of 70 per cent. of the Territory for a small
minority of the population" 3•
Applicants do not, however, quote any source for the statement that
70 percent. of the Territory has been pre-empted or set aside for members
of the White group. The statement is not supported by the figures given
by Philip Mason in Annex I to the Reply 4; Mason apparently assumes
that the whole area of the Police Zone has been set aside for the White
group. This assumption, which presumably also forms the basis of Appli
cants' above-quoted assertion, is quite clearly incorrect. \Vithin the Police
Zone there are a number of reserves occupied by non-\Vhites; there are
large tracts of land which have been set aside as Diamond Areas, to which
access is forbidden to everyone save those concerned with the diamond
industry; thcre arc game reserves and the Namib desert; and there are
large areas of unalienated state lands which have not yet been al\ocated
for occupation by any population group ..
The allegation that 70 percent. of the Territory has been set aside for
European occupation is in fact untrue; so is the statement by Mason ~
that after acceptance of the recommendations of the Odendaal Com
mission the division of land in the Territory would leave five-eighths
thereof to the Whites. The true position is that, when the Odendaal
Commission made its recommendations, only 47.92 percent. 5 of the land
in the Territory was owned or leased by members of the White group 6•
Should effect be given to the Commission's recommendations, a White
area will be established in the Territory, the extent of which will be still
1 IV, p. z7z.
2 Ibid., pp. 466·467.
3 Ibid., p. 458. Vide in this regard also p. 405 and p. 460, footnote 3.
• ibid., p. 336.
5 Made up of farms (47.34 percent.) and land in towns and townships (0.58 per
cent.).
6 Vide sec. H, Chap. lif, para. 27infra (table).250 SOUTH WEST AFR!CA
less than the percentage of 47.92 already mentioned, since a total of
3,406,rSr hectares of land presently owned or leased by Whites are to be
added to the areas of the non-White homelands. According to those
recommendations the extent of the various areas comprising the Terri
tory will be 1 :
White arca Farms ............ . 43.22 per cent.
Towns and townships . . . . . . 0.58 percent.
Natives reserves . . . . . . . . . . . . . . 40.07 percent.
Diamond areas, game reserves, and unalicnated
state lands . . . . . . . . . . . . . . . r3.55 percent.
Farms owned by non-Whites . . . . . . . . 2.58 percent.
5. As regards para. 2 (c): Applicants' quotation of Dr. Verwoerd as
saying "there is no place for him [i.e., the BantuJ in the European com
munity abovethelevelof certain forms of labour" is apt to be misleading.
Tt formed part of a speech on Bantu education, which is dealt with more
fully below 2• In the first place, it is ta be noted, Dr. Verwoerd indicated
clearly that in their homelands the Bantu would be enabled to reach the
highest rungs of the Jadder. Jndeed, he expressly stated that one of the
aims of Ban tu education would be to provide training for" ... those who
would develop to the_higher professions by means of which they will be
able to serve their own community" 2•
Not only in the homelands, but also in the Native urban areas within
the Police Zone. Respondent's policy has bcen to encourage Natives to
rise above the level of labourers, and to assist Native tradesmen and pro
fessional men 3•
But the expression "certain fonns of labour" may be misleading even
in relation to the European economy proper. As will be shown below 3 the
levels of employment which Natives have attained in South West Africa
are by no means confined to the unskilled categories, as may be suggested
by the context in which Applicants quote the above phrase.
B. Certain Facts Said To Be "Decisive and Undisputed"
6. Applicants say:
"The decisively relevant facts concerning Respondent's policies
and objectives, relied upon by Applicants in support of their Sub
missions with ·regard to Article 2, paragraph 2, of the Mandate, are
undisputed 4." ·
Respondent has demonstrated that this contention is correct only in
so far as it relates to that part of Applicants' case which is based upon
the alleged "norm of non-discrimination or non-separation" 5,inasmuch
as there is no dispute about the fact that Respondent's policy differen
tiates on the basis of membership of a group. As regards Applicants'
further charge (which is apparently advanced in the alternative, although
Applicants do not expressly say so) that Respondent's policy is a deli
berately oppressive one, the above statement is. of course, completely
1 Vide sec. H, Chap. III, para.27. infra (table).
2 Vide sec. G, Chap. Il, para. 17, infra.
3 Vide sec. H, Chap. II, para. 6, infra.
• IV, p. 262.
1 Vide sec. H, Vide sec. A, para. 8, supra. REJOINDER OF SOUTH AFRICA
wrong. The latter part of Applicants' case is based on facts and inferences
which are strenuously contested, as witness the bulk of the pleadings in
these proceedings.
7. Despite what was said in the preceding paragraph, Applicants
appear to contend that, even in regard to their charge that the policy
of separate development is an intentionally oppressive one, the crucial
facts are not disputed. In this connection they rely on "Respondent's
own formulations of that policy, as set out in excerpts drawn ... from the
Counter-Memorial ... as well as from public statements of Respondent's
highest officiais" 1, and on "Respondent's measures for implementation
of its policy'' 1, the existence and nature of which are. according to
Applicants, "undisputed as facts" 1.The "measures for implementation"
are dealt with separately by Applicants 2, and Respondent will reply
thereto at the appropriate juncture 3•The treatment in the succeeding
paragraphs will accordingly be restricted to the formulations of policy
relied upon by Applicants.
8. Although Applicants profess to have "endeavored to avoid quo
tation out of context or other distortion of Respondent's intended
signification"\ their actions do not appear to measure up to their
laudable intentions. Thus in the part of the Reply now under discussion,
they suggest, by quoting in juxtaposition two sets of extracts from
speeches by Dr. Verwoerd 5, that there have been inconsistencies in the
formulation of Respondent's policy; and the same charge is expressly
made elsewhere 6 on the strength of the same extracts. However, as will
be shown, Applicants' accusations in this regard indeed depend on
quotations out of context. Thus they quote the following statement by
Dr. Verwoerd, Respondent's Prime Minister:
"Reduced to its simplest form the problem is nothing else than
this: We want to keep South Africa White ... 'K . eeping it White' can
only mean one thing, namely White domination, not 'leadership', not
'guidance', but 'control', 'supremacy'. If we are agreed that it is the
desire of the people that the White man should be able to continue
to protect himself by retaining White domination ... we say that
it can be achieved by separate development \"
However, the context of Dr. Verwoerd's speech leaves no doubt at all
that by the words '.'South Africa". he_meant-, and would.obviously. have
been so understood, that part of the country which would, in terms of
the policy of separate development, remain available for \Vhite occupa
tion, and that he did not intend to depart from the often expressed
objective of providing homelands for the Bantu in which they would be
able to develop to the full extent of their capacities. lndeed, in the course
of the very same speech, Dr. Verwoerd said, inter alia:
"I quote from the speech I made when addressing the Natives'
Representative Council ...
'The only possi~le way out ... is ... that both, i.e.,the White
1 IV, p. 263.
2 I.e., inIV,Chapter IV B 3.c.of the Reply.
3 Part F et seq., infra.
• IV, p. 264.
5 Ibid.,pp. 264-265.
6
Ibid.,pp. 275, 315-317252 SOUTH WEST AFIUCA
man and the Bantu, accepta development separate from each other.
The present Government believes in the domination (baasskap) of
the \\!bite man in his own area, but it equally believesin the domination
1
(baasskap) of the Ban tu in his area .(Italics added.)
On 27 January 1959 I said in this House- ·
'South Africa is at the crossroads. It must be decided whether it
will go in the direction of a multi-racial society with a common
political life or whether it will bring about total separation in the
political sphere . . . ·
I also see to it that I choose a course by which on the one hand I
retain for the White man alone full rights of government in his area,
but according to which I give to the Bantu, under our care as their
guardians, a full opportunity in their own areas to put their /eet on the
road of development along which they can make progress in accordance
with their capabilities. And if it so happens that in future they pro
gress to a very high level, the people living at that time will have to
consider how further to re-organize those relations . ·.. ' (Italics
added.)
I further stated, on 20 May 1959-
'I would rather eventually have a smaller State in a South Africa
which is White and which will control its own army, its own fl.eet,
its own police and its own defence force, and which will stand as a
bulwark for White civilization in the world; in other words, I would
rather have a White nation here which can fight for its existence
than a larger State which has already been handed over to Bantu
domination ... 2'(Italics added.)
'... The standpoint of the National Party is one of striving for a
permanently White South Africa, whatever dangers may threaten it,
but which is prepared to develop areas in which Bantu contrat may
increase under the guidance of the Whites as guardians, and with the
understanding that even though thi"sshould lead toBantu i"ndependence
we will try by our statesmanship to ensure that this development
takes place in such a spirit and in such a way that friendship will
remain possible, but without the White man ever finding himself
under any form of Bantu control ... 3' (Italics added.)
There was no doubt whatsoever as ta the attitude of the National
Party: The White man will govern his country and the Bantu wül
govern his people, his areas ... 4" (ltalics added.)
9. It is clear, therefore, that Dr. Verwoerd has never recanted his
promise to provide separate homelands for the Bantu groups, and that
Applicants' accusation of inconsistency has some superficial plausibility
only because Applicants have, contrary to their protestations, quoted a
single extract from Dr. Verwoerd's speech completely out of context.
ro. A different forrn of quotation out of context affords the explanation
for the inconsistency suggested by two further quotations from speeches
1 R. of S.A. Parl. Deb., House of Assembly, Vol. V, 2nd Sess., Second Parliament,
(Jan. 1963), Col. 225.
2
3 Ibid., Col.228.
Ibid., Cols.228-229.
~ Ibid., Col. 230. REJOIKDER OF SOUTH AFRICA . 253
1
by Dr. Verwoerd • The context which Applicants ignore is not that of
content, as in the case considered above, but that of the time when the
two speeches were respectively delivered. lt will be noted that ten years
separate the two addresses, the earlier having been delivered in r95r,
and the later in 196r. Respondent cxplained in the Counter-Memorial 2
that post-war circumstances and events resulted in widespread changes
ofgovernment policies throughout Africa. Respondent lms never disputed
that its policy has also undergone development and adjustment during
the past years-indeed, one chapter of the Counter-Memorial 3, was
devoted solely to such development and adiustment. ln the course
thereof Respondent particularly stressed the fact that public announce
ment on its behalf of the possibility of independent Bantu states,. as an
attainable end result, first occurred in 1959, and explained the reasons
therefor, as well as commenting on implications thereof 4• One develop
ment since 1951 has been that the poli.tical advancement of the Bantu
has proceeded at a faster rate than was anticipatecl or announced at the
time. ln this_regard, there can be but few, if any, polîcy statements made
in r951 on behalf of any government with interests in Africa which were
still of unqualified application ten years later. It is consequently difficult
to see what inference Applicants seek to draw from the fact that in 1961
Respondent's Prime Minister spoke of a greater degree of ultimate
independence for Bantu homelands than he had mentioned a decade
earlier. ·
·The further statements of Dr. Verwoerd quoted by Applicants 1 are
dealt with elsewhere and do not require any comment at this stage.
rr. The only further source quoteci by Applîcants in support of their
contention that "the decisively relevant facts concerning Responcient's
policies ... are undisputed" 5, is the Counter-Memorial, from which long
extracts are cited. These extracts exclusively concern certain facets of the
economic aspects of Respondent's ·policies, and related questions re
garding educational policy. As noted, these are presented as being
"decisive"-thus paving the way for the later assertions that such
economic aspects (and especially the negative parts thereof) constitute
the "primary end" of Respondent's policies 6• This is a major distortion.
The primary question at issue is political-the form which self-rule and
self-determination must take in order to avoid strife and struggle for
domination and preservation, and to ensure harmonious relations. In
order to secure justice and sound relations in these respects, which are
of overriding importance, separate development is dcsirable. As a con
sequence, boundary lines become necessary also in the economic sphere,
otherwise attemps at political separatism would be rendered nugatory.
The system of separate development in the economic sphere in itself has
outstanding advantages for the Native peoples, as has been shown in the
Counter-Memorial 7 and will be further demonstrated herein 8. That it
1 IV, p. 265.
2 Il, Book IV, Chaps. VI and VII.
3 Ibid .. Chap. VII.
• li, pp. 464-466 (paras. 14-17) and 487-488 (para. 62).
~ IV, p. 262.
6 Vide para. r,supra.
7
Vide III, Book V, secs. A-D: in particular, e.g., pp. ror-103.
" Vidr. sec. H, in/ra. SOUTH WEST AFRICA
254
must in some respects or circumstances have adverse effects for certain
individuals is inevitable-but, as will be shown, the extent thereof is verv
limited and the compensations more than adequate. To speak of such
adverse or limitative aspects as being in themselves part of the "primary
end" of separate development, is, it is submitted, ridiculous.
12. Certain major points of attack advanced by Applicants as regards
the general principles and approach of the policy of separate develop
ment, particularly the so-called "homeland policy", occur repeatedly
in the Reply-e.g., in the text thereof, sometimes more than once, and
again in the various Annexes, especially Nos. 1-4. Respondent will in the
following sections deal with such points with reference to all the various
places at which they occur in the Reply, and thereafter deal seriatim
with remaining points in the text and Annexes.
C. Historical Background in South Africa ltself
13. In the section of the Reply, dealing with rights of residence,
security of the persan and freedom of movement, Applicants altege that
"... Respondent relies upon its version of history as justifying pre
emption of 70 percent. of the Territory for a small minority of the popu
lation" 1.And they say further:
"Although Respondent's historical survey deals with South
Africa itself, thus raising a question of relcvance in respect of the
international obligations assumed with respect to the Mandate,
Applicants are constrained to set straight the historie record,
inasmuch as Respondent places so heavy an emphasis upon its own
version 1."
Applicants thus create the impression that Respondent relies heavJ!y
upon its version o2 South African history as justifying "pre-emption" of
a large portion of South West Africa for the White minority of the
population of that Territory. In this regard Applicants refer to Chapter
VII of Book IV of the Counter-Memorial where Respondent explained
in two short paragraphs that in South Africa the policy generally known
as segregation was founded on the basis of the historical circumstance
that the European and Bantu 3roups tended to settle in separate and dis
tinct parts of the country •Beforereferring to this circumstance Respond
ent made it perfectly clear, however, that the policies and practices
adopted and applied in South West Africa had always been moulded with
reference to circumstances as they existed in the Territory, and that,
while Respondent was frequently influenced, inter alia, by experience
gained in South Africa itself in regard to comparable problems and
policies aimed at their solution, anv translation of such experience into
action in South West Africa occurred solely on the basis of due adaptation
to the needs, interests and circumstances of that Territory, and of the
principles and objectives of the Mandate 4.Respondent was a\so at pains
to explain that, while it would be instructive to make brief refcrence to
certain aspects of policies relating to group relations in South Africa,
1IV, p. 458.
2There is no question of 70 percent. of the Territoryhaving been set aside or
reserved for the \\'hite group. Vide para. 4supra.
3 Vide II, pp. 461.462.
• Ibid., p. 457. REJOINDER OF SOUTH AFRJCA 255
Respondent did not propose to attempt anything approaching even a
full sketch of the development of such policies 1. lt is consequently not
clear to Respondent how Applicants could have been brought under the
impression that Respondent relies heavily on South African history as
justification for its policies in South West Africa.
r+ ln what they term a "Relevant Historical Resumé" 2, Applicants
in the Reply purport to~
"... correct the fundamentally false impression Respondent creates
of a kind of historie 'separateness' or apartheid, which it asserts as an
explanation and justification for its present policies ... 3".
In this "Resumé", apart from referring to the 1960 census figures per
taining to the Territory 4.Applicants deal only with events in South
Africa itself, and, as bas already been shown 5,they do not seek to contra
dict Respondent's expositions 6of the historical and socio-economic cir
cumstances in South West Africa which compelled Respondent to adopt
a policy of differentiation in the Territory, but expressly admit the sub
stantial accuracy thereof. It is, therefore, highly surprising to find that
at the end of their said "Resumé" Applicants refer to the contents thereof
as a "correct version of developments in South Africa and in the Terri
tory ... " 7•
15. It appears on analysis, that Applicants, in the said "Resumé",
purport to show:
(a) that South Africa was already effectively occupied by non-Whites
before Europeans began to settle in the country;
(b) that the Europeans proceeded to take occupation of non-White
land;
(c) that the Voortrekkers, being "an exceptionally colour-conscious
people", established "a caste system" 4 which was maintained at
and after the unification of South Africa; and
(d) that as a result of the influx through the years of Natives into
White areas, a multi-racial society in South Africa, as in South
West Africa, is a fact.
The last aspect, which appears to have little, if any, relation to history
in the true sense of the word, is dealt with in the next succeeding para
graphsof this Rejoinder. Although, in view of what has been stated above,
the rest of Applicants' "Resumé" has very little, if any, relevance to the
issues in these proceedings, Respondent deems it desirable to deal briefly
with Applicants' version of historv. However, înasmuch as Respondent
does not wish to interrupt its discussion of Applicants' attack on. its
general principles of policy with an exposition of purely historical facts,
Respondent will deal with the matters referred to in sub-paragraphs (a)
to (c) above in an Annex to this section of the Rejoinder-Annex A. In
the said Annex Respondent will also deal with matters of histor>'raised in
the 1963 report of the United Nations Special Committee on the Policies of
1
Il, p.461.
2IV, p. 459.
3 Ibid., pp. 458--159.
• Ibid., p.460.
5 Vide Cha p. I[,para. r, supra.
• Vide, e.g., Ill,pp. ::238-fi.
7 IV, p. 464. (Italicsadded.) SOUTH WEST :\FRIC:\
Apartheid of the Government of the Republic of South Africa, an extra1t
from which report is contained in Annex 3 to the Reply •
Respondent will in its treatment in Annex A hereto show that, far
from "set[ting] straight the historie record", Applicants and the said
United Nations Special Committee create an entirely misleading image of
historical events in South Africa; that they make several allegations with
out reference to any authorities whatsoever, and that, even when they
quote sources, these for the most part do not bear out their allegations.
Il. The Allegation that in South West Africa, as in South Africa ltself,
"A Plural or Multi-racial Society Is a Fact"
16. As has been poînted out above 2,Applicants in the Reply, under
the heading "Relevant Historical Resume", purport to show that-
"[i]n South West Africa, as in the Republic itself, a plural or multi
racial society is a fact; policies based upon a contrary premise rest
upon a fiction Y'.
This theme, emphasizing to what extent, in both countries, Natives live
outside the reserves and have allegedly become ''detribalized' ',also occurs
in several other parts of the Reply 4. In the succeeding paragraphs Re
spondent will deal first with the relevant allegations pertaining to South
Africa, and then with those relating to the Territory. Since, however,
conditions in South Africa are not in themselves in issue in these pro
ceedings, Respondent does not propose to discuss the former allegations
fully, but will merely point to some facts in orderto show that Applicants'
conclusion, quoted above, is without substance.
17. On analysis, the contentions advanced in the Reply in support of
the said theme with regard to South Africa, appear to be the following:
(a) that the Bantu reserves could not in the past, and cannot at present,
support their inhabitants "even at the subsistencc level" 5;
(b) that as a result of pressure on the land in the reserves, the Bantu
inhabitants are economically obliged to resort to wagc-earning in
the White areas to such an extent that at present Jess than 40
per cent. of the incligenous inhabitants of South Africa are living in
the reserves, white the Bantu population of the White areas, es
pecially the urban areas, is increasing rapidly 6;
(c) that as a result of the aforestated dcvelopments Bantu have been
present for several generations in the White areas, and have become
a permanent part of the population of such areas 7; and
(d) that many of the Bantu living in the White areas have become
"largely detrihalized and have little attachment to the reserves" 8•
r8. In the Counter-;\lemorial 9 Rcspondent pointed out that before
Union the then governingpowers of what are at present the four Provinces
1 IV, pp. 349-358.
1 Vide para. 15, supra.
3 IV, p. 46o.
4 Ibid., pp. 317-318, 332,351,357.
5 Ibid., p. 351.
6 Ibid., pp. 317, 351, 459 and 462.
' Ibid.,pp. 332 and 459.
8
9 Ibid.,p. 459.
III,p. 236. REJOINDER OF SOUTH AFR!CA 257
took concrete steps to provide for the Bantu groups and tribes protec
ted possession of lands of their own, and that 9,976,290 morgen had been
set aside in South Africa for the exclusive use of Bantu. Respondent
further stated that after Union the Native Lands Act of 1913 had dearly
demarcated the Bantu reserves, and that the South African Native Trust,
established in terms of the Native Trust and Land Act of 1936, had during
the period 31 August 1936 to 31 March 1953, acquired further areas
to the extent of 4,121,020 morgen for the sole use and occupation of
Bantu 1.More land has since bcen acquired, and as at 30 September 1964,
the position was that only 1,856,270 morgen of the quota of 7,250,000
morgen provided for in the last-mentioned Act still had to be acquired
2
bv the Trust •
19. In passing it may be pointed out that there is no substance in the
allegation that "[t]he delay in the acquisition of the land" by the Trust
"is due to the resistance of European farmers and the inadequacy of
funds appropriated for the purpose", and that, in contrast, "[t]he 'Black
Spots'-African3owned land in European areas-are ... being rapidly
eliminated" •
Although it is true that some White farmers have been unwilling to
sell their land to the Trust, greater resistance has been experienced in the
case of Bantu to whom larger and better areas than their own have been
offered in exchange for their land situated in the White areas. In the
words of the Prime Minister of South Africa:
"Our problem ... in regard to matters pertaining to land is the
psychology of the Native. If a Black spot is bought out, and even if
a more expensive, larger and better White area adjoining this Bantu
area is given gratis to the inhabitants of this Black spot, generally
there is the greatest difficulty in getting them to move. Then there is
a lot of unjustifiable talk about oppression and coercion, .. Therefore
it is essential that this process should rather take place through
proper co-operation between the Bantu Government and the White
Govemment 4."
The Prime Minister mentioned:
"I want to add this also. In the Transkei there is a very special
problem, namely the White spot problem. In terms of what I have
just said, those areas will in the meantime remain White spots, and
therefore under the control of the Republic, but the process, as I
have announced cartier, of the graduai and, if possible, rapid darken
ing particularly of the smaller White spots, will have to take place.
In other words, portions of the White spots will continually pass ·
over into the territory of the Transkeian Government. In the case
of Umtata, because it is big, the problem isconsequently also greater,
and it will take longer to solve, but I do not think anyone can escape
the fact that just as a city like Nairobi and large White arcas in
Kenva fall under that Government, so in the course of time also a
city like Umtata will become part of the territory of the Transkeian
Government s."
1
2 III,pp. 236-238.
3 Departmental information.
IV, p. 3.5r. footnotr.
5 R. of S.A. Parl. Deb., House of Assembly,Vol. '2(1962), Col. 87.
lbid .. Col. 88. ~OUTH WEST AFRICA
).fost, if not ail, of the so-called "black spots" are overcrowded, without
proper water supplies or adequate roads. They are tiny islands in the
White areas offering no scope for expansion to meet the needs of their
ever-increasing population. Experience has shown again and again
that the ultimate advantages to the Bantu concerned of the elimination
of these spots, and the provision of new land adjacent to existing Bantu
reserves, far outweigh any possible initial clisadvantage and inconvenience.
It may be pointed out that only 90,349 morgen (i.e., less than 13 per
cent.) of the total of 728,537 morgen which were initially regarded as
1
"black spots", have so far been cleared , while more than 70 percent. of
the land intended for acquisition by the Native Trust in terms of the
Native Trust and Land Act has already been acguired for the sole use of
Bantu 2.The sweeping assertion that there has been undue delay in the
acquisition of land for Natives by the Trust, in contrast to the rapid eli
mination of "black spots", is consequently devoid of substance.
20. In the Reply and its Annexes repeated reference is made to the
fact that the Bantu areas comprise only approximately one-seventh of the
total area of South Africa 3• Respondent has to point out, however, that
an arithmetical comparison of the land held by Europeans and Bantu
respectively is quite unrealistic, since the Bantu reserves have a much
higher agricultural potential per unit or area than the White farming
areas. This matter will be further dealt with below ~-
21. In support of its allegation that the reserves cannot support their
inhabitants "even at the subsistence level", the United Nations Special
Committee, in Annex 3 to the Reply, refers to the report of the Tomlin
son Commission in which it was allegedly stated that "the Reserves can
decently support only half of their population" 5• What the Commission
in fact said, was that the reserves could support about 51 percent. of their
population in a subsistence agriculture- 6• The Commission further esti
mated that when the full quota of land provided for in terms of the Native
Trust and Land Act has been acquired, the reserves would be able to
carry 50,000 more farming families, i.e., altogether 357,000 such families 7•
It should be observed that the 1955 fmding of the Tomlinson Commis
sion was based on the state of affairs which then existed in the reserves,
and which was largely a legacy of past neglect and policies of laisser-faire 6•
The same Commission stated, however, that-
"... from the present backwardness ... flows simultaneously the
realisation of the great increase in carrying capacity which could be
1 Departmental information.
2 Vide para. rS, supra.
3 Vide IV, pp. 33r, 35r and 359.
• Vide para. 48, infra.
6 IV, p. 35r.
U.G. 61-1955, Chap. 28, p. 114 (para. 10).
1 Ibid., para. 21. As regards the allegation that "[t]he most optimistic estimates
place the agricultural potential of the reserves at nearly 20 per cent. of that of the
Republic", vide IV, p. 351 it should be noted that the Tomlinson Commission found
that after the addition of land still to be acquired under the ~ative Trust and Land
Act "the Bantu arcas will ... contain 23.2 per cent. of the Union's agricultural
po8ential"-U.G. 61-1955, Chap. 28, p. 117 (para. 41).
Vide para. 25, infra. REJOINDER OF SOUTH AFRICA 259
brought about if the present backwardness were removed by a
programme of intensive development.
The development programme aims at building up a diversified
economy in the Bantu Areas, in other words, at building up the
other occupational sectors alongside agriculture. If this is not done,
the carrying capacity of these areas will be limited to that of a one
sided agricultural economy. Planning in the primary sector, will make
possible a collective carrying capacity of about 2-4 million persons
agriculture 2.14 million, forestry 0.16 million, and mining o.r mil
lion.With this fact as basis, the total population which can be ex
pected to result from the application of a complete development pro
gramme in all sectors of the national economy, may now be cal
culated.
\Vith a population of 2.3 million engaged inagriculture and forestry,
the total carrying capacity based on the opportunities of employment
provided bythe Bantu Areas themselves, would amount to a population
of about 8 million. The attainment of this figure will depend upon
the intensity of the development effort. To arrive at the residential
carrying capacity, an addition must be made in respect of the num
ber of people who can be maintained there by breadwinners working
elsewhere in the Union. In the light of the numbers of those working
in other parts of the country at present, the Commission puts the
possible addition at 1.5 million dependents and retired persons. In
this manner, a potential residential carrying capacity totalling
9.5 million is in prospect. If migratory labourers are added, the
dt jure population will amount to about 10 million 1.''
22. Shortly after publication of the report of the Tomlinson Commis
sion the then Minister of Native Affairs (the present Prime Minister) sum
marized the recommendations of the Commission as follows:
"Firstly, steps should be taken to see that improved use is m·ade
of the soil and its riches by the Bantu himself, and not only agri
culturally; secondly, there should be a suitable distribution of
population in the rural parts of the Bantu areas and in their towns
and urban areas. Furthermore, there should be the placing of future
\Vhite industries in such a way as to assist the Bantu population, at
least to the greatest possible extent, having their home in the Bantu
areas, And finally, the separate opportunities for development should
be reserved and extended to the Bantu in every sphere 2."
The i:1inister continued:
"This basic reply is accepted by the Government, and it cannot
do otherwise but to accept it, because that is its policy; it is the
traditional policy of South Africa ... 2"
The principles of development of the reserves recommended by the
Commission, or modified versions thereof adopted by Respondent as a
result of practical experience in the nine years that have elapsed since
the Commission reported, are in the process of being implemented in the
Bantu homelands under the current five-year plan of the Department
' U.G. 61-1955, pp. 178-179.
2 U. of S.A. Pari. Deb., House oj A ssembly, Vol. 91 (1956), Col. 5297. 200 SOUTH WEST AFRICA
of Bantu Administration and Development, while othcr government
agencies are actively promoting industrial development in areas border
ing on these homelands 1•
It follows that in the future there will be no question of the Bantu
homelands not being able to support their present populations, and even
increased populations. ln fact, the comparatively recent industrial revo
lution in South Africa has made it possible to create economic growth
points in and on the borders of the homelands to such an extent that their
carrying capacity will, for practical purposes, be almost unlimited.
23. Respondent concedes, however, that at an earlier stage in the
evolution of the South African economy from a mainly pastoral-agri
cultural to an industrial one, Bantu who wished or were compelled by
economic pressures to earn cash wages, had little real choice but to leave
the reserves and enter the White areas in order to find employment.
One of the main reasons why the reserves could not in the past support
ail their inhabitants, was that the Bantu were not soi! conservation
minded farmers, but semi-nomaclic, shifting cultivators who persisted in
their wasteful agriculturq.l and pastoral practices-even when the possibil
ity of trekking further afield in search of freshsoiland pasture, rather than
tocultiva te orgraze reasona bly, had ceased. The reserves, therefore, became
ov~r-populated only in terms of the particular type of uneconomic non
industrial utilization of resources which had prevailed there in the past.
In this regard it should be kept in mind that during the entire period
between 19~0 and 1948 the National Party was in power for less than
ten years (1924-1933), and that practical circumstances-especially the
depression of the 193os-prevented the successive governments from
accomplishing much in initiating economic rehabilitation of the Bantu
areas during the decade preceding the Second World \Var. That war,
and its aftermath, prevented effective progress for many years, and the
present Government consequently inherited the relatively serious situ
ation in the reserves depicted by the Tomlinson Commission.
It would be wrong, however, to assume that economic pressure in the
reserves was the only reason that gave rise to the influx of Bantu into the
White areas. Traditionally the Bantu male regarded himself as the hun
tcr, the warrior and the stock farmer, soil cultivation being left to the
woman. Consequently, as he found lcss opportunity of exercising his
traditional calling, he did not turn to the land, but preferred to do a
"man's job" by sclling his labour in the White areas. Others went in
search of adventure, and while some returned, others stayed in the cities
and on the farms in the said areas.
24. Applicants point out that at the time of the 1960 census only about
39 percent. of the Ban tu in South Africa were in their homelands 2,while
the Bantu urban population in the White areas had by thcn increased to
3
3,444,000 • These figures are substantially correct 4, but it should be
1 Videpara. 52, in/ra,1t is clear, thereforthat there is no substancein the as
sertion of the Hon. O. D. Schreinerthat Respondent's "Bantustan policy" does not
seek "the physical development of the Reserves"-vide IV, p. 318.
2
3 IV, pp. 459 and 351.
Ibid.,p. JI7·
• If Bantu barn outside South Africa are exc:Iuded, the number of Santu living in
the homelands amount to 40 per cent. of the total Bantu population of South
Africa. REJOINDER OF SOUTH AFRICA 261
kept in mind that it was only during the last 30 years that the number of
Bantu in urban areas started to increase significantly. Thus the total
Bantu urban population in 1921 ,vas 587,000 (or 12.64 percent. of the
total Bantu population), and in 1936 it was 1,245,682 (or 18.89 percent.
of the total population) . There is consequently Jittle substance in the
suggestion that substantial numbers of Bantu "have been present for
2
severalgerterations" in the White areas .
It should also be observed that large numbers of the Bantu living and
working in the White areas are not South Africans, but came from the
British High Commission Territories, or territorics to the north.
Nevertheless, Respondent concedes that substantial numbers of South
African Bantu are at present living in the White areas, and that this
fact constitutes a very real problem. As will be shown 3,however, the
problem is in Respondent's view by no means insoluble.
25. The significant increase in the numbers of Bantu in the White
areas sincc approximately 1930 was partly the result of circumstances
beyond any government's contrai (a period of prolonged depression,
followed by a world war and economic readjustment), but partly also of
a laisser-faire policy, especially during the period in which the United
Party was in power. The effects of this policy have been thus stated in a
memorandum explaining the background and abjects of the Promotion
of Bantu Self-Government Bill of 1959:
"The Bantu areas have consistently been preserved as living space
solely for the Bantu. No European may sett1e in a Bantu area with
out the permission of the Bantu community and the Union Govern
ment, and when permission is granted it is restricted to a specific
purposc, for example the rendering of a particular service. Similarly,
it was the intention that the Bantu should not enter the European
area without the consent of the European community, and then, too,
only for the purpose of rendering a specific service.
The last-mentioned purpose was, however, gradually lost sight
of with the result that the Bantu, for whose sole use certain living
space had been set aside, was allowed to occupy the living space of
the European, while the European was and still is prohibitcd from
occupying or entering the living space of the Bantu for any other
pnrpose than the rendering of service to the Bantu in the spiritual,
economic and administrative fields.
The issue was further clouded in that permission was granted to
Bantu, at fi.rst tacitly and later even by Legislation, to scttle on a
family basis in the European area and thereafter to obtain residen
tial rights on the grouncl of birth in that area, \vhile the granting of
corresponding rights to Europeans in Bantu areas was, and is to
this day, not tolerated. In this way the living space of the European
was invaded not only by Union Bantu but also by Bantu fro.m t,he
three Protectorates and even Bantu frorn numerous other terntones
in Africa.
Contra[}' to the stated basic aims the Bantu has been allowed to
make his home whercvcr hc elects in the whole of South Africa and
1 Departmental information.
2 IV, p. 332. (Ita\iadded.)
' Vide para. 25, infra.262 SOUTH WEST AFRICA
this practice has necessarily created the impression that, in addition
to exclusive rights in the Bantu areas, the Bantu can also Jay daim
to the same rights as a European in the European areas, which have
been set aside solely for the Europeans.
The fact that Bantu from the three Protectorates enter the Union
in ~reat numbers on precisely the same basis as Bantu from the
Umon's reserves enter the European area, clearly illustrates how
untenable this view is. lt stands to reason that no Bantu from the
Protectorates can Jay claim to civil rights in the Union. The Transkei,
for example, is economically less dependent than Basutoland upon
the labour market of the European area and it is, therefore, illogical
to grant rights in the European area to the Xhosa, which are denied
to the Basuto, merely because the former's country was formally
set aside only after Union and not three years previously at the
1
time of Union .' •
In returning to the basic aims, mentioned in the above passage, the
present Government realized that the solution of the problems created
by partial deviation from the said aims in the past, Jay in the intensive
economic development of the Bantu homelands. As has been pointed
out 2,Respondent has embarked upon a programme of such development,
and it is estimated that the tide will turn by about 1978 when it is ex
pected that emigration of Bantu from the White areas will exceed immi
3
gration of Bantu to such areas .
26. Applicants quote passages from the reports of the Holloway
Commission, the Social and Economie Planning Council and the Fagan
4
Commission with a view to demonstrating that these bodies were of the
opinion that a policy of separate developrnent did not provide a solution
to the race problern in South _Africa. It should be observed, however,
that these bodies reported before the present Government came into
power, and during a period when, as a result of the above-mentioned
policy of laisser-faire, virtually nothing was done to develop the Bantu
homelands and to stem the influx of Bantu into the White areas. What
is even more important is the fact that the major industrial revolution
in South Africa, which has made sufficient capital available for extensive
economic development of the homelands, only occurred after the said
bodies had reported. The views expressed before 1950 by the Social and
Economie Planning Council and the two Commissions consequently
have little relevance to the prospects of the present Govemment's policy
being snccessfully implemented in the South Africa of the 1960s 5 •
W.P. 3-'59,pp. 4-5.
Vide para.22, supra.
3 R. of S.A. Parl. Deb., House of Assembly, Vol. 7 (1963), Col. 6930.
• lt may be pointed out Applicants have left out a phrase in the extracfrom the
report of the Fagan Commission quoted by them at IV, pp. 462-463. The Com
mission stated that "the movement from country to town ... may ... be guided
and regulated, and may perhaps also be limited, but that it cannot be stopped ... "
(Italics added.)-U.G. 28-1948, p. 19, para. 28. The italicized phrase does not oc
cur in the Reply, although no indication is given that it is lèft out.
' The same is a fortiortrue of the opinions expressed by Prof. de Kiewiet in 1941,
and in 1956, when he no longer had any direct contact with South Africa-vide
IV, pp. 463-464. As regards the general unreliabiliof the views of Prof. de Kiewiet,
vide sec. H, Chap. II, paras. 9-IO and 93, and Chap. V, para. 3,infra. REJOINDER OF SOUTH AFRICA 263
2ï, As regards the last contention mentioned above 1,viz., that many
of the Bantu living in the White areas have become "largely detribalized
and have little attachment to the reserves" 2,it should be observed that
no authority whatsoever is quoted in support of this contention, which
clearly is not based on facts. In this regard reference may. be made to the
following statement of the present Minister of Ban tu Administration and
Development:
"... I want to rnake this statement that the vast majority of those
people [Bantu living in the White areas] have never lost their links
with their own territories. I personally made some pilot surveys and
the Tomlinson Commission made a large number of pilot surveys
over the whole country, and it was found that easily 80 percent., if
not more, of those Ban tu had always retained some Iink or other with
the Bantu areas. \Ne are not faced here with a problem of displaced
persans. Our practical experience has been that although a Bantu
has been in the city for years, for perhaps two or three generations,
he still knows where his tribe is, and you will be surprised to know,
sir, how readily he is absorbed again into his tribe 3."
Commenting on the assumption that Natives who have lived in the urban
areas of Africa for some time have necessarily lost affinity with their
tribes, Melville J. Herskovits, Professor of African Studies in the North
Western University (U.S.A.), has stated:
"An outstanding example of this kind of reasoning is to be seen
in the concept of detribalization, which has had considerable vogue
among students of contemporary Africa. It was especially employed
in analysing African life in the new cities that came to dot the Sub
Saharan continent, especially in the Union of South Africa, where the
twin forces of urbanization and industrialization have been more
powerful than anywhere else. Again, in its formai aspect, modes of
African city-life seemed so different from indigenous patterns that it
was prima facie impossible to continue antecedcnt conventions, and
that adjustment in terms of earlier orientations was inconceivable.
It is significant that one of the first attempts to correct perspective
was that of an African scholar, Z. K. Matthews •. Writing some years
before the concept of reinterpretation had been advanced, he clearly
saw the power of aboriginal custom in shaping the life of the urban
dweller in the Union. Anticipating by at least two decades the S1ving
toward greater balance in the study of the urbanized African whereby
the conceptof 'detribalization'came to be rejected, he stated: 'It seems
altogether unwise to attempt to drive a wedge between this urban
group and the so-called purely tribal native by refusing to recognize
what they have in common and the contribution which the former can
make and are making to native life and thought by their synthesis of
1 Vide para. 17 (d), supra.
2 IV, p. 357 and videaise p. 462 where Applicants state that many Bantu have
become "permanent residents of the '\Vhite areas' comp!etely divorced /rom the
!'eserves and/rom the tribal sl!'uctures(Italicsadded.)
3 U. of S.A. Parl. Deb., House of A ssembly, Vol. ror (1959),Col. 6021.
• Prof. Matthews is a South African Bantu; cited by Applicants; vide IV, p.290. SOUTH WEST AFRICA
Western and Native c1nceptions wherever the y are comp!ementary and
not contradictory' ." {ltalics added.)
But even in so far as some Bantu may have Iost most affiliations with
their tribes and the homelands of their origin, it would be wrong to
assume that they have .adopted the culture and concepts of the White
group. On the contrary, in South Africa, as in other parts of Africa, even
Bantu intellectuals do not become absorbed in European culture or cus
toms. In the words of Edward Shills:
"Most intellectuals in underdeveloped countries are not as 'eut off'
/rom their own culture as they and their detractors suggest. They live
in the middle of it, their wives and mothers are its constant repre
sentatives in their midst, they retain close contact with their families,
which are normally steeped in traditional beliefs and practices. The
possession of a modem intellectual culture does removc them, to
some extent, from the culture of their 2ncestors, but much of the
latter remains and lives on in them ." (Ita!ics added.)
In sum: the various population groups in South Africa have retained
their own separate cultures and identities, and have never formed an
integrated society.
28. ln view of what has been stated above, Respondent submits that
there is no substance in the assertion that in South Africa "a plural or
multi-racial society is a fact".
29. 1t is significant that Applicants go to much greater length in the
case of South Africa than in the case of South West Africain their attempt
at substantiating their basic contention under consideration. In fact,
Applicants, in respect of South West Africa, merely quote some of the
1960 census figures reported by the Odendaal Commission and then pro
ceed to make the sweeping and unsubstantiated statement that in South
West Africa "a plural or multi-racial society is a fact" 3_
30. As regards the census figures relied upon by Applicants 3, it is true
that at the time of the census IO percent. of the population of the north
ern territories were working in the Police Zone. Applicants fail to men
tion, however, that this ro percent. were working on a temporary basis,
i.e., for periods ranging from one to two and a half vears, that the approxi
mately 28,500 Ovambos and Okavangos concemed were in fact perma
nently domiciled in the northern territories, and that they had their fami
lies, cultural, social and political connections and affiliations in those ter
ritories. Applicants also fail to mention that, according to the same census
figures, 54-46·per cent. of the total population of South West Africa (and
98.3 percent. of the groups involved), was permanently domiciled in the
northern territories, which are exclusivelv reserved for Natives 4•
\Vith regard to the Police Zone, Applic.ants create the impression that
the quoted census percentages relate only to Natives. This is not the case.
The report of the Odendaal Commission clearly shows that of the total
population of the Police Zone (inclusive of Europeans, Coloureds, Basters
and Natives) 47 percent. were in urban areas, 37 percent. in the rural
1
"The Role of Culture-Pattern in the African Acculturative Experience",
Présence Africaine (Africa's ûwn Literary Review), Vols. 6-7, Xos. 34-35, p. r4.
2 Shills, E., "The Intellec:tualsin the Political Developrnent", World Politics,
p.349.
3 IV, p.460.
4 R.F. I2-r964, p. 41. REJOl:,./DER OF SOUTH AFRICA 265
arcas and 16 pcr cent. in the reserves 1. Moreover, a percentage of the
Natives residing in both urban and rural areas were doing so on a com
pletely temporary basis, being in fact permanently domiciled in the re
serves.
Furthermore, even those Natives apparently settled in areas occupied
by the White group usually maintain strong ties of family, kinship and
culture with members of their respective groups in the reserves, and often
work in such White areas for the specific purpose of saving money to go
back to a more peaceful existence in the reserves. Within the White areas
they maintain their group identity, and socially and culturally mix almost
exclusively with members of their own group. Numerous examples of this
fact are on record, such as that the Ovambo requested the erection of a
separate school for their children in the new Katutura residential area for
Bantu in Windhoek; that the Herero traditionally resort to separate
dwelling areas and even refuse to have their dead interred in the same
cemetery with the dead of other ethnie groups; and that even on farms
Native employees usually maintain a strict code of separateness by living
apart and not integrating socially with different ethnie groups 2•
3r. lt is true that, as in the case of South Africa, the substantial
number of Natives at present living in the White areas constitutes a
real problem. For the following reasons, however, this problem adroits of
a relatively easy solution in the case of the Territory:
(a) As pointed out above, 98.3 per cent. of the groups for which the
reserves in the northern areas were set aside, are ordinarily resident
in those reserves.
'(b) It is possible to add substantially to the reserves in the Police
Zone so that they can become propcr homelands for the groups
concerned. As is shown in another section of this Rejoindcr 3,
implementation of the proposais of the Odendaal Commission will
bring about an increase of more than noper cent. in the size of the
reserves in the Police Zone. The percentage gain will be the highest
in the case of the groups which at present largely live outside their
reserves, viz., approximately 94 percent. for the Nama, and nearly
700 percent. for the Damar 3.
(c) Duc to the fact that significant contact between the Native groups
and the Europeans goes back little more than half a century, and
that the influx of Natives into urban areas has not assumed serious
proportions, virtually ail the indigenous inhabitants of the Terri tory
living in the White areas still retain very strong tribal affiliations.
32. As in the case of South Africa, Respondent sees the solution ot
the existing problem in the economic development of the proposed home
lands. Implementation of the recommendations of the Odendaal Com
mission will, in Respondent's view, in the long run create conditions in
the homelands which will induce Natives now living in the White areas
to return of their own free will to the areas of their respective groups.
33. An analysis of the Annexes to the Reply shows that the only asser
tions on which Applicants might conceivably rely in support. of their
contention under consideration are that-
1 R.P. 12-1964, p. 41.
2 Departmental information.
3 Vide' sec.1,Chap. III, para. 7, infra.266 SOUTH WEST AFRICA
"Africans from the homelands temporarily employed in the White
zone are variously estimated at from 27,ooo to 40,000, and altogether
some 160,000 live there-about one-third of the non-White popu
lation 1";
that-
"[a] total of 13,709 Damaras, Hereros and Namas and 8,893 Basters
are settlcd in Native reserves and the Rehoboth Gebiet which will be
included in their respective 'homelands'; this total represents less
than IO per cent. of the Non-European popula2ion permanently
settled in the southem section of the Territory ",
and that, on the basis of the recommendations of the Odendaal Com
mission,
" ... the proposed 'White area' would initially have a de facto
population of 73,I06 Europeans and n6,383 Non-Europeans, as
well as an additional 28,621 Non-European migrant labourers
recruited from the 'homelands' on the northem border of the Terri
tory. A majority of the Non-Europeans in the Southern portion of the
Territory would thus live in the 'White' area rather than in their
'homelands' 3."
34. It is admitted that a relatively small percentage of the Native
population of the Police Zone, consisting of the Herero, Nama and Dama,
at present live in the reserves in the Zone. The assertion in Annex z that
the total number of non-Whites living in the reserves in the Police Zone
represents less than IO percent. of the total non-\Vhite population of the
Zone, is, however, clearly wrong. A total number of 38,648 non-Whites
(not 22,602 as stated in the said Annex), representing 23.27 per cent.
of the non-White population of the southem sector, in fact live in reserves
in the Police Zone ~.
The suggestion in Annex I that the number of Natives living in "the
White Zone" represents "about one-third of the non-White population",
is also not founded on fact. The total number of Natives living in the
Police Zone outside the reserves is n7,r68, i.e., approximately 26 per
cent. of the total non-White population of the Territory (452,540) "·
The assertion in Annex 2 that on the basis of the recommendations of
the Odendaal Commission the proposed White area would initially
have "a de facto population of 73,106 Europeans and I16,383 Non
Europeans", is in broad substance correct, but the further allegation
that-
"[u]nless continued European immigration alters the position, Non
Europeans would also continue to form the majority of the popu
lation in the 'White' area 3",
may not remain true for the future. The United Nations Secretariat
obviously ignored the fact that the reserves in the Police Zone are to be
increased by over noper cent. sand that, as a result of that fact, as well
as of the various development projects envisaged for such reserves, they
will be able to support many more Natives than at present.
• IV,p. 336.
2 ibid.p. 342.
3 ibid.,p. 343.
• R.P. No. 12-1964, p. 4r.
~ Vide para. 31, supra. REJOINDER OF SOUTH AFRICA 267
35. In the result Respondent submits that there is no substance in
Applicants' contention that "[i]n South West Africa ... a plural or
multi-racial society is a fact".
E. The Alleged Unfaimess of the Allocation of Land Proposed by the
Odendaal Commission
36. Applicants' allegation that the allocation of land proposed by the
Odendaal Commission would be unfair towards some of the inhabitants
of the Territory involves, upon analysis, five different' grounds of com
plaint. These will now be mentioned and dealt with in turn.
37. In the first place, Applicants are opposed to the principle of sepa
ration as such: they contend that Respondent'saim should be "the institu
tion of universal adult suffrage and the promotion of participation on the
part of all qualified individuals in all levels of govemment and admini
stration, within the /ramework of a single territorial unit" 1• (ltalics added.)
Applicants contend that this is the policy which Respondent should
adopt for the Territory, but they have not made any systematic attempt
to show why such a policy is to be prefcrred in principle to the one applied
by Respond~nt, or to weigh up the advantages or disadvantages of the
2
two alternatives •
The principle of having a partition at ail is inextricably bound up with
Respondent's policy of separate development, and therefore falls to be
considered within the broad framework of that policy. Respondent has
already dealt with the necessity of applying such a policy in South West
Africa 3, and does not propose to repeat what has been stated in this
regard.
38. In the present context, Respondent would merely draw attention
to the fact that Philip Masan, whose views are reproduced in Annex I
of the Reply ", does not appear to support Applicants' outright condem
nation of any form of differentiation or separation between groups. For
the Republic, he is apparently prepared to accept partition as a solution,
provided only that there should be "a far more equable division of
resources" 5• As to South West Africa, he recognizes the existence of a
special problem, saying:
"It would be quite wrong to suggest that the problem of dealing
with a more developed and a less developed population within the
same nation-state is anywhere easy. India is finding the Nagas a
problem and the United States have not found a wholly satisfactory
answer for thcir Amerindians, let alone the Negroes. Both these
countries have thegreat advantage that the Jessadvanced groups are
minorities and thus that if any assimilation takes place it is likely to
be the more advanced culture that prevails. South Africa's problems
are far more intractable.
The Odendaal Commission has rightly pointed out that in such
circumstances the less developed culture needs both protection and
1 IV, p.441.
2 Vide Chap. IV, paras. 3 and 5, supYa.
3 Ibid., para.r. and referencestherein to the Counter-~Iemorial.
4 IV, pp. 328 ff.
5 lbid.'p. 335.268 SOUTH WEST AFRICA
development. It is not casy to strike a right balance between them 1."
In the political sphere, the solution which Mason advocates for South
West Africa's special problem is-
" ... a steady preparation of the non-White groups for a share,
perhaps, in a federal system, certainly in one in which all the groitps
could play a part 2". (ltalics added.)
lnasmuch as Applicants proceed from the so-called "decisive major
premise" that all " 'distinctions and differentiations' ... based upon
membership in a group" arc repugnant to Article 2, paragraph 2, of the
Mandate" 3, and on this basis advocate "universal adult suffrage ...
within the framework of a single territorial unit" 4 ,their attitude is in
clear conflict with the goal set by Mason.
Mason is consequently no authority for the view advanced by Appli
cants on this aspect of the case; indeed, his approach appears to be an
attempt at softening the obvious disadvantages of the system favoured
by Applicants. Mason goes part of the way with Respondent, by ac
knowledging that each group should be afforded the opportunity of self
expression. He differs from Respondent's approach, however, in this
respect, that he would presumably impose a federal system on the
inhabitants of the Territory, whereas Respondent envisages the develop
ment of a free association of separate independent states in which the
various groups could ultimately decide for themselves on the form of
political co-operation desired 5• This aspect of the matter is further dealt
with below 6_
39. In the second place, Applicants also contend, relying on the dew
of a "Group of Experts" expressed in a report relating to conditions in the
Republic of South Africa, that "[p]artition would not solve, but would
intensify and aggravate racial conflict" 7• This contention is also bound
up with the wider aspect of Rcspondent's separate development policy as
such. It has already been explained in detail why it is Respondent's firrn
conviction that its policy, including as it does the principle of allocating
separate areas to the different population groups. is the only realistic
method by which the conflicts behveen such different ethnie groups, so
manifest elsewhere in the world, can be avoided 8•Applicants have not
advanced any evidence in support of the contrary contention contained
in the aforesaid report of the "Group of Experts"; nor does the report
itself even presume to analyse or to controvert Respondent's motivation
of its policy. There is accordingly no need for Respondent to deal further
with this aspect of Applkants' complaint against the principle of scpara
tion as such.
40. In the third place, Applicants complain that, contrary to the
principle "that an essential prerequisite of a valid and viable political
system is consent of the governed", Respondent's policy "is predeter-
1IV, p. 336. The position of the Xegro in American Society is more fully referred
to later in this Rejoinder,Chap. XI, infra.
2 ibid.,p. 337.
3 Ibid., p. 440.
• Ibid., p. 44r.
5 Vide Chap. IV, para. 6 (i),supra.
6 Vide paras. 42-44,infra.
7 IV, p. 319.
8
Chaps. III and IV, supra. REJOINDER OF SOUTH AFRICA 269
mined and the method of its application is pre-fabricatcd" 1.ln this con
nection the extract from the Report of the United Nations Special Com
mittee reproduced in Annex 3 of the Reply 2 contains the allegation, with
reference to the Republic, that "the 'Bantustans' were not demanded by
African leaders, but were imposed against their wishes" 3, while Philip
Mason says that in South Africa the solution of partition "is being im
4
posed by one party'· •
41. Applicants' insistence that the consent of ail groups in South West
Africa must be obtained as a prerequisite to partition is unrealistic, and
proceeds from fallacious premises. lt loses sight of the basic fact of the
situation, which is that the relationship between Respondent and the
inhabitants of the Territory is that of a guardian towards its wards, a
relationship which arose bccause of the latter's need of guardianship
and upliftment. It is inherent in that relationship that the guardian must
be able, in its discretion, to determine the bcst methods bv which the
welfare of all the wards could be promoted to the utmost." Applicants'
contention presupposes, however, that, white the relationship of guardian
vis-à-vis wards still subsists, the wards must be given the opportunity of
nullifying the policy conceived by the guardian, after careful considera
tion. as being the most beneficial in the circumstances. Indeed. Applicants'
contention, taken to its logical outcome, goes much further: it is tanta
mount to a demand that a particular section of the inhabitants must be
afforded the opportunity. simply by virtue of their superior numbers, of
choosing not only emancipation and control of their own affairs, but also
control over the other smallergroups in the Terri tory and their affairs and
possessions-including contrai over the most advanced group, which has
been largely instrumental in developing the larger groups to the stage
where they are capable of controlling their own affairs. With reference to
the Republic, Applicants' contention involves the daim that the wards
must e,·en be able to demand control over the guardian's own affairs and
possessions. Such a daim, Respondent submits, demonstrates the fallacy
underlying Applicants' complaint. It is surely inherent in the situation
that the guardian must be entitled to say ta each group of its wards:
you may rule yourselves in your part of the land, but you may not rulc
the other groups in their territories-at least not without their consent.
42. Applicants' argument furthermore ignores two important features
of the factual situation in South West Africa.
The first isthat historically the various ethnie groups in the Territory
ha\"e always to a large extent occupied separate parts of the country.
Respondent's policy, therefore, accepts an existing state of affairs, a~d
seeks to further the development of the various groups on that bas1s.
By contrast, the policy of integration of the groups, advocated by Appli
cants, would effect a major change in conditions in the ·Territory.
Secondly, while alleging that Respondent's policy lacks the "consent
of the governed", Applicants conveniently ignore the fact that their own
favoured policy of intcgration suffers from precisely the same defect.
There can be no doubt that the White group is opposecl to integration
1 IV, p.J'.!Ovide alsop. 325.
2 Ibid., pp. 349 fl.
3 Ibid.,p. 357 (para. I47)
• Ibid.,p. 331.270 SOUTH WEST AFRICA
and that a policy of integration 1 would have to be enforced against
White resistance. The attitudes of the Native groups in this connection
are dealt with hereinafter 2• Similarly, a federal system, such as that
suggested by Philip Mason 3,could only be established by forcing it on to
objecting groups.
In so far as the "consent of the governed" is concerned, therefore,
Applicants' theories for the political development of the Territory do not
disclose any virtue that is allegedly lacking in Respondent's policy.
The above-mentioned twofold fallacy of Applicants' approach is de
monstrated by the followingextract from a speech of the Prime Minister in
the House of Assembly during the discussion of the Odendaal Com
mission's report:
"I have already referred to that, right at the outset, but now
wish to state in more detail that what the report suggests is not to
introduce apartheid to South West Africa but to take into considera
tion the historical facts of South West Africa. They are that there
have always been inSouth West Africa quite separatc ethnie groups,
groups which in the course of history often clashed with one another.
Therefore one would not be forcing them apart now if you were to
continue the development of each group's territory. One should
indeed rather not allow oneself to force together those who never did
belong together. There is no question of extending apartheid to
South \Vest Africa, there is no forcing apart of groups. What is sug
gested is to refrain from forcing together, against the whole trend of
their history, peoplcs who are separate. Therefore I wish to emphasize
that the basic idea with which we are dealing is not the creation
of homelands. It is the prescrving of homelands. In some cases these
homelands have already almost fallen apart. There it is a question
of taking the kernel which still exists and, by an extension of ter
ritory and by bringing scattered groups together, with their co
operation (those who belong together}, to re-establish the ,·alued
former conditions that they have always known about and contin
ually have asked for. 1,as a former :Ministerof Ban tu Affairs, can state
categorically that I visited each of these various groups and have
always been asked for the further proper development of their own
ethnie groups and areas i."
43. In the preceding two paragraphs Respondent, mcrely for the sake
oi demonstrating the fallacies underlying Applicants' argument, dealt
therewith on principle, i.e., independently of the factual allegation
involved therein, viz., that the policy of separate development is being
imposed against the wishes of the non-White groups. In fact, however,
that contention is incorrect with respect both to South West Africa and
to the Republic itself. Sincc the factual aspect of the alleged lack of
consent to partition is bound up with Applicants' more general charge
that Responder:it bas failed to consult with the non-White groups or to pay
1 Xot only in South ,vest Africa, but also in the Republic. Vide the Report of
the Tomlinson Commission, U.G. 61/1955, Chap. 2, p. 10 (para. 55); Chap. 25,
pp. H>3-105 (paras.20 and 28).
2
3 Vide paras. 67-84,infra.
IV,p. 337; vide furtberpara. 38, supra.
• U. of S.A. Pari. Deb., House of Assembly, Weekly Edition, No. 15 (4 :'Ilay to
8 ~ray 1964), Cols. 5452 and 5453. REJOINDER OF SOUTH AFRICA 271
anv attention to their wishes, it will be more convenient to deal with this
aspect of the matter separately at a later stage of this Rejoinder 1.
44. The desirability of allowing different groups to develop to maturity
separately, rather than forcing them to integrate, is reflected in the
following comment on the situation in African States:
"With the sudden end of empire, too much may be attempted too
hastily. This applies as much to federation-making as to anything
else. In the last resort, there is a lot to be said for the view that only
free peoples can really debate the issue of a federation on its merits. This
was the way the classical federations were formed. The whole
experiment in colonial federation-building is a colossal gamble in the
sense that, with the best of motives, the colonial power may be
wanting to join together the wrong peoples. As an interestcd third
party, it has powers of persuasion, direction, contrai or even force
at its disposai. But tempting as it mav be to use such powers, as
indeed they have been used in Centràl Africa, they can never in
themselves get people to live together who have no desire to live together.
Nationalism today is a heady and captivating doctrine, no matter
how small or poor the nation may be. It is no good talking about
the virtues of the economies of scale to 'nationalists' whose political
horizons are still bounded by those of the tribe. Colonial empires in
Africa may have to be balkanized be/ore their peoples-both African
and European-can discover for themselves with which of their neigh
bottrs they cana fjordto form close and congenial political associations."
Respondent cannot ignore, as Applicants do, the absence of consent
on the part of ail the groups in South West Africa to merge into one
integrated society. In the result Respondent is obliged to proceed with
the policy which recognizes the separate identities of the groups with
their separate homelands as the basic pattern within which progress and
development must take place. In their own areas the groups are free to
move towards the type of self-government they desire for their hornelands,
and eventually to make those homelands entirely independent states
in which they can adopt whatever policies they choose, whether in regard
to the form of co-operation with other states, or otherwise. Thus, the
Prime Ministcr explained during the debate on the Odcnclaal Commission
report in the House of Assembly:
"Then I corne to a second point as far as Govcrnment policy is
concerned. As I have already indicated, the picture painted here by
the United Party of a compulsory shifting of population groups 1s
a false one. Thesc homelands will in fact be made available for their
own political development. There will be more and more opportuni
ties for them to occupy higher posts in their own homelands ...
They will also have the right of self-determination. These are the
demands which are being made by the outside world. The outside
world demands emancipation, better opportunities and the right of
self-determination; the trustee is expected to look after the nation
under its care until it reaches that stage, and eventually there
must be no domination of one group by another. Inherently the
1 Vide paras. 67-84, infra.
2 Carnell, F. G., "PoliticImplicationsof Federalismin Xew States", Federalism
and Eco11omic Growlh in Underdeveloped Countries. A Symposium (1961), p. 59.272 SOUTH WEST AFRICA
solution that we put forward satisfies all those demands which have
been formulated in the council chambers of the world.
Further, we have adopted the standpoint that there must be
economic co-operation, but in addition we make provision in our
policy for the possibility of political co-operation. However, we do
not seek this by means of a federation in which there will be a
dominant group and in which a majority group will rule a minority
group. Our principle is that in the highest body there should be a
consultative body, that for political co-operation with one another
there must be consultation in regard to common interests on an
equal footing, as in a commonwealth. Therefore there is inherent in
our policy the principle of developing the possibility for economic
co-operation and the possibility for political co-operation, in accord
ance with what is being attempted in present-day Europe. After
having said ail this, it must be clear that this is not an inflexible
policy. In fact, it is a policy which indicates a direction and for
mulates certain basic principles which allow much scope for move
ment ... I therefore lay it down as a principle that we envisage the
eventual right of self-determination for each of the smaller and larger
social groups in South West Africa. Secondly, we offer protection
for every group in their development towards the highest fonctions
within each group, including self-administration in ail spheres. The
report proves this very c1ear1y, and the education envisaged is
directed towards that object. Thirdly ... the limitations imposed on
the freedoms of people (as we find practically over the whole \Vorld
where anybody lives in the territory of somebody else) fall away
as soon as everybody can enjoy his own freedom in his own terri
tory ... Human rights will have more opportunity to develop to the
full in terms of our policy when separation takes place and the
nations exist alongside each other ... 1"
45. Respondent turns next to Applicants' fourth ground of complaint
against the proposed partition of the Territory. They allege unfairness,
quantitatively and qualitatively, in the proposed allocation of land.
They do this in the first place bv representing the division of land as being
2
one under which 70 per cent. ·of the Territory is reserved for Whites ,
and by alleging that" 'non-White' inhabitants are confined to the poorest
areas of the Territorv" 3and that the area set aside for Whites "contains
most of the wealth of the Territory and a highly developed economy" 4•
They also refer to the position in South Africa, alleging a "manifestly
false equivalence of its asserted balancing of rights and interests as be
tween 'Natives' and 'Whites' in South Africa as well as in the Terri tory" 5.
With reference to South Africa, Mason furthermore alleges that the
proposed division of land i,; unfair, quantitatively and qualitatively 6,
and the allegation of unfairness is also contained in the extract from the
1 U. of S.A. Parl. Deb., House of Assembly, Weekly Editio(4 May to 8 i\lay 1964),
Cols. 5640 and 5641.
2 Vide para. 4, supra.
3 IV, p. 464.
• ibid., p. 467.
5 Ibid., p. 317.
6 Ibid., pp. 331-332 for the details of his charge. REJOI:-.DER OF SOUTH AFRICA 273
Report of the United Nations Special Committee contained in Annex 3
to the Reply 1.
46. Respondent has already demonstrated that Applicants' allegation
that 70 percent. of the land of the Territory is reserved for White occu
2
pation is untrue •But Applicants' allegation of unfairness contains a
further major distortion in respect of both South Africa and South West
Africa. By merely comparing land areas, Applicants assume the homo
geneity of the natural potential of all the land areas concerned. This
assumption is falsc, and the impression sought to be conveyed by Appli
cants of 11011-\Vhitesbeing unfairly treated is accordingly equally false.
In order to demonstrate this, Respondent will first refer briefly to the
position in the Republic and thereafter deal with the position in South
West Africa.
47. In regard to South Africa, Applicants have ignored the significant
differences in the natural resonrce endowment of the respective areas.
An indication of the importance of this factor is contained in the following
comment of L. E. Neame:
"The Natives complain that the Reserves are too small and point
out that together with the 'released areas' they amount to only
13 per cent. of the surface of the Union while the Whites are left
\\'Îth 87 per cent.
But the Reserves are chiefly in what are called the 'productive
areas' where the rainfall ranges from 15 to 40 inches a year, while
much of the land left for the \Vhites faits in country with a very
low rainfall.
. . . . . . . . . . . . . . . ..
Visitors to the Reserves deplore the evidence of soil erosion, the
destruction of the vegetal covering and the consequent impoverish
ment of the inhabitants. But the deterioration is not <luesimply to
overcrowding. The Reserves are what the Natives have made them.
\Vere they doubled or trebled in size they would, under present 3
methods of cultivation, sink to the level of the arcas now occupied ."
48. Since the faimess of the division of land in the Republic of South
Africa is not in issue in these proceedings, Respondent does not propose to
give a systematic exposition of such division. Respondent will merely
mention some figures and quote some comments to illustrate that
Applicants have failed to substantiate their charge of unfaimess.
As far as the agricultural potential of the different areas of land is con
cerned, an arithmetical comparfaon o{ the acreage held by Whites and
non-Whites is quite unrealistic. The Bantu reserves have a much higher
agricultural potential per unit of area than the White farrning areas \
in fact, they are situated in the agricultural heart of South Africa 5.For
example: while 56.6 per cent. of White farming land lies within the
regions suited only for extensive cattle and sheep farming, only 37.6 per
cent. of the Ban tu areas lies within the extensive cattlc farming area and
there is no Bantu land in the extensive sheep farming region; while 23.8
percent. of the Bantu areas fal\s within an agro-cconomic region with a
1 IV, pp. 349-358.
2 Vide parn. 4,supra.
3 Neame, r•.E., White il1an's Africa (1953), pp. 44-45 and 46.
• U.G. 61-1955, p. 117 (para. 41).
' Xeame, op. cil., quotingthe 1936 Native A "(}airs Commission Report. p. 43. SOUTH WEST AFRICA
274
high cropping potential, only 4.9 percent. of the White areas falls within
the same region 1. In this regard Paul Giniewski states:
"A large part of the area is situated in the warmest and most
fertile part of the Republic and has the highest rainfall. Seventy-six
per cent. of these Bantustans receive more than 20 inches of rain
a year. The remaining 24 percent. receive more than r5 inches. Of
the whole of South Africa, 22.7 million acres have an arid climate
and only 2rr,ooo acres of the Bantu lands fall in this category.
A rainy, temperate climate is considered to be most propitious for
farming. Of the 24 million acres in the whole of the Republic
benefiting from this climate, r2 million are situated in the Reserves.
The experts consider that, on an average, IOO acres of the Bantu
lands have a similar agricultura\ potentiat as 147 acres of the White
holdings, that these lands, utilizcd properly, could consequently be
2
one-and-a-half times as productive as the White lands ."
49. ln connection with the aforegoing comment, and in order to view
the quantitative aspect of the division of land in the Republic in proper
perspective, it may be useful to draw some comparisons with land areas
and population figures in European countries. The Transkei covers an
area of 12,975 sq. miles, which is about 80 per cent. of the area of
Denmark (16,619 sq. miles); in 1960, the population of the Transkei was
1,379,000 as against 4,585,000 in Denmark. In Natal, the areas set aside
for Bantu cover 13,995 sq. miles, and in 1960 were inha bited by about
1,174,000 people; these areas are larger than the area of the Netherlands,
with a population in 1962 of about 1r.7 million (total area 12,616 sq.
miles). The total surface of the Ban tu areas covers about 53,685 sq. miles,
which is about one-quarter the size of France (212,822 sq. miles); in 1960,
the total Bantu population of ail Bantu areas numbered 4,069,000, as
comparecl with the 1962 population in France of approximately 46.3
million. In 1960 the population density of all the Bantu areas in the
Republic was 78 persons per square mile (Transkei, 105; Natal Ban tu
areas. rn3; Tswana Bantu areas, 31). This may be compared with the
corresponding figures in the following countries: Netherlands, 929. 1;
West Germany (excluding West Berlin), 586.7; Italy, 43r.9; Denmark,
275.9; France, 217.6 3•
50. In regard to minerai potential, it is not true to say that the Bantu
areas "have few known minerai resources" 4•It is true that gold and
diamonds, which are the mainstay of Respondent's mining industry in
the Republic, have not so far been discovered on a significant scale in
Ban tu areas; but it should be remembered that the areas where these
minerais are at present being mined were not inhabited by non-Whites at
the time of the original discoveries. The process of exploring the minerai
resources of the present Bantu areas has by no means been completed
yet, but already minerai deposits of considerable value and diversity have
been discovered or are already being mined. Obviously no detailed survey
can be given here; a few examples will suffice. A rich platinum reef falls
1
2 U.G. 61~1955, p. r 7 (para. 40).
3 Giniewski, P., Bantustans: A Trek towards the Future (1961), pp. 120·I2l.
Ali data on overseas countries taken frorn Information Please: Almanac Atlas
and l'earbook r964, at pp. 615 and 676 ff. South African data: Departrnental
information.
• IV, p. 357 (para.150). REJOI:-DER OF SOUTH AFRICA
275
largely within the North-Eastern Transvaal Bantu areas; in the same area
there is a phenomenal quantity of titaniferous magnetite (estimated to
exceed 2,000 million tons), and plans for a steel-works based thereon are
under consideration; a large part of the central Transvaal chromite
deposits, believed to be the largest in the world, falls within Bantu areas;
large portions of the Cape Crocidolite (asbestos) field fall within the
Tswana Bantu areas, wherc thcrc arc also coal deposits cstimated at a
little under 1,000 million short tons. ln 1952 the value of sales of all
minerais mined in Bantu areas already amounted to R9.45 million 1.
51. In regard to industrial potential, Respondent disputes ]'11ason's
statement that the Bantu homelands in the Republic are "badly placed
for industrial development" 2•Again some examples will suffice. So, for
instance, it is widely accepted that the Tugela Basin, with its large Ban tu
areas, is one of the principal regions of the Republic's future industrial
growth; it is endowed with ample water supplies, well served by the
power network of the Electricity Supply Commission, and it lies in the
vicinity of the Republic's largest coal mines, as well as being one of its
foremost agricultural and forest areas. Similarly, the rich water resources
of the Transkei present great possibilities of industialization 3• Large
scale afforestation schemes and the introduction of new agricultural crops,
especially fibres, are laying the foundation for a large number of pro
cessing and manufacturing plants, which, in turn, will stimulate further
developments in auxiliary industries and services, while the creation
of urban areas in the homelands will increasingly bring in their train
service and trade establishments 4•In Bantu areas Bantu already own 135
grain mills, 42 bakeries, 28 other manufactnring or processing enterprises,
2,375 general dealers' shops, 503 butcheries, 566 cafés and restaurants,
and 465 other commercial enterprises, and it is clear that these numbers
are bound to rise considerably in the near future, bearing in mind the
credit and educational facilities provided by Respondent.
52. The Bantu Investment Corporation, referred to in Annex 3 of
Applicants' Reply 5,has sufficient funds to meet the demands of the Ban tu
in their own areas, and substantial progress has been made to assist the
Bantu in building up their own commercial and industrial enterprises.
Already the Corporation has given financial aid in about 740 cases for
the furthering of the interests of traders and small industrialists; direct
business loans have amounted to R1,465,ooo and some 250 Bantu traders
have been assisted to acquire stock-in-trade on a credit basis from whole
sale concerns controlled by the Corporation. In addition, businessmen
who have received financial aid are visited regularly by officers of the
Corporation in an effort to train them in the proper conduct of their
affairs; non-borrowers are also making considerable use of these facili
ties free of charge. As the demand for capital increases, further provision
will be made therefor. Of necessitv, on account of the as vet limited
absorptÎYe capadty for capital on the part of the Bantu, their economic
1 Vide also Giniewski, P., Bantustans: A Trek towards the Future (r96J), p. 149.
1 IV, p. 332.
3 Vide also Fair,T. J. D. and Green, L. P., "Development of the Bantu Home
lands", Optima, Vol. 12, No. 1 (Mar. 1962), pp. 7-r9.
• Vide further,as ta the industrialpotentialof the Bantu homclands, Giniewski,
P., Bantustans: A Trek towards the Future (r961), pp. 148-151.
5 IV, p. 358 (para. 152). SOUTH WEST AFRICA
progress will initially be slow, but Respondent has every reason to believe
that, with the educational opportunities provided by it and the ex
periencc gained by the Bantu in the White areas, the tempo of progress
will soon be incrcased, with the result that more and more employment
opportunities will be created for the Bantu in their own areas.
Because the Bantu are unable to respond quickly to the requirements
of economic growth in their own areas, White-controlled industries will
necessarily have to create opportunities for some time to corne. It is for
this reason that Respondent has encouraged and concentrated on the
establishment of border industries 1, which will in the meantime bring
together White capital and technical knowledge and the labour resources
of the Bantu, to the mutual advantage of bath. Respondent is a\'erse to
1
allowing White private persans to establish industries in Bantu areas ,
as this will only lead in the long run to Whites controlling industry and
commerce in the Bantu homelands, thus preventing the Bantu from
making progress in this sphere, as he would be faced with the supcrior
capital resources and technical skill and experience of the Whites. The
protection of the Ban tu in their own areas against superior competition
is an essential facet of Respondent's policy of separate development. The
border industries, moreover, give the maximum benefit to the Bantu,
in that they are provided with employment opportunities 2 near their
permanent homes-which obviates the need for migrant labour-while
being enabled to gain the experience necessary for establishing their own
inriustries. Thus, the border industries, far from exploiting the Bantu for
the benefit of the Whites, are designed to enable the Bantu to build up
their own industries in their own areas as quickly as possible.
53. Respondent now proceeds to deal with the division of land in
South West Africa itself. In this regard, too, Applicants have simply
disregarded the differences in the natural potential of the varions areas
concerned.
In fact, the areas reserved in South West Africa for the exclusive
occupation of non-Whites are on the whole far more favourably endowed
by nature, and hence offer much greater potentialities, than the areas
to which White settlement is confined. This is conclusively proYed by
the information supplied in the Counter-Memorial 3, as well as by further
details which will be more conveniently given later in this Rejoinder ~.
For present purposes, Respondent will mention only some facts and
figures in order to i!Justrate the fallacy inherent in comparing only the
extent of the different areas.
54. As far as agricultural resources are concerned, 70 per cent. of the
total non-White population of South West Africa, and only 20 percent.
of the White population, are to be found in the most favourable rainfall
region-the only region suitable for dry-land agriculture-white S5 per
1 Vide IV, pp. 357-358 (paras. 151 and 152).
2 The figures quoted in the last sentenceof IV, p. 358, para. 152, are disputed.
According to the 1959/1960 industrialcensus, 55,000 Bantu workers were employed
in priva.tesecondary industry in the Bantu homelands and border areas,apart
from a further 25,000 in the Durban-Pinetown area, which is also a border area. In
the past four years. and mainly in the past year, the development of border an~as
has resultedin the em11loyment of an additional 28,000 Bantu in these areas.
l Il,pp. 295-298.
• Sec. H, Chap. III, paras. 1S-2r, infra. REJOINDER OF SOUTH AFRICA
277
cent. of the area to which Whites are confined falls within the lowest
rainfall areas 1.The area of land in non.White homelands receiving an
annual average rainfall exceeding 500 mm. (the lower limit for marginal
dry·land farming) is nearly two.and-a·half times larger than similar
land in the White farmland area 1. Similarly, the livestock carrying
capacity of the northern and north-eastern non-White regions on the
who1efar exceeds that of the White region 1;these non-White regions are
also in a far more favourable position with respect to seasonal distri
bution, effectiveness and variability of the rainfall, evaporation, vegeta·
tion, water resources, cropping potential and forestry reserves 1.
55. Presumably Applicants' charge that the White area of the Terri tory
"contains most of the wealth of the Territory" 2 rests on the fact that
the bulk of mining operations is conducted in the southem sector. ln this
connection it should be borne in mind, however, that the diamond mines
arc situated on unallocated govemment land. Apart from this, the situa
tion of the mines in the southern sector cannot be interpreted as proof
of unfair treatment of the non-\:Vhites. Firstly, all minerai rights are
vested in Respondent as the Govemmcnt of the Territory-the owners
of land on which mining is carried on are only entitled to certain owners'
ducs, which are of minor importance. Secondly, in the historical position
existing in 1920, Respondcnt was obliged to allow the continued exploi
tation of the mines by foreign entrepreneurs who had in any event already
obtained vested interests, in order to make the expansion of the economy
possible 3.Thirdly, Respondent has utilized the income detived from min
ing for the benefit of the Territory as a whole. In this connection, the
necessity of establishing growth points in certain areas, and the existence
of "a highly developed economy" 2in the southern region of the Territory,
are explained in a later part of this Rejoinder •.
56. The manner in which the areas of land occupied by non-Whites
have been extended in the past-of which details will be supplied later
in this Rejoindcr -as also Respondent's attitude in regard to the further
enlargement of these areas by over 50 per cent. as proposed by the
6
ûdendaal Commission ,prove that Respondent has always been prepared
to extend the non-White areas in accordance with the needs of the
different population groups. Respondent is convinced, bearing in mind
the circumstances, particularly the productive potential of the different
areas concerned, that the division of land envisaged in the Odendaal
Commission's report is fair and equitable with respect to all the popula
tion groups in the Tcrritory.
57. Respondent now proceeds to deal with Applicants' fifth and final
ground of complaint against the allocation of land recommended by the
Commission. Applicants contend that the homelands in the Tcrritory
would be neither "politically viable as 'independent' entities, or other
wise", nor "economically viable as entities 'intcrdependent' with Respond-
1Sec. H, Chap. III, paras. 1S-2r, infra.
2 IV, p. 467.
3 Vide Il, p. 4ro.
+ Vide sec. H, Cha p. Il, paras. 16-17, infra.
5 /id .. parasr5-1r,.
~ Ibid., paras. 27-28. SOUTH WEST AFRICA
ent, or otherwise" 1•Again, reference is also made to the position of the
Bantu homelands in South Africa 2•
58. Dealing fi.rst with the economic aspect, it is not clear what exactly
Applicants intend to convey by the expression "economically viable",
and whether the reference to the possibility of "interdependence" with
Respondent contains an implied criticism of such a state of affairs.
If Applicants' charge is that the homeiands would not be economically
independent, then Respondent submits that the charge is meaningless,
since economic independence is to be found nowhere in the wor1d except
in subsistence economies; all countries, whether in the early stages of
development or highly industrialized, are dependent on trade and other
international economic relations.
Respondent's policy in fact envisages a close economic co-operation
between Respondent and the various future independent homelands 3•
The economic interdependence of these future states with Respondent
would be no different in principle from the economic relationships be
tween other countries. In other parts of Africa the need of increased
economic co-operation between different States has been recognizecl 4,
flowing from "the formidable obstacles that make it difficult for many
countries to build viable economies within the strict confines of their
boundaries" 5. Indeed, the non-White areas, both in the Republic and in
South West Africa, may be regarded as being in the exceptionally fortu
nate position of being interdependent with Respondent's economy, the
most broadly based and prosperous on the African continent. Even the
High Commission Territories, which do not constitutionally form part of
South Africa, enjoy this advantage.
If, on the other hand, "viability" is understood in the sense of "the
capacity of an economy to maintain a customary or expected Ie,·cl of
income, or to increase it" 6,or the "attainment of a healthful existence
and a steadily improving quality of life for the people of the territories" 7,
then Respondent states that its policy, both in the Republic and in South
West Africa, has been and still is one of systematic and vigorous develop
ment of the Bantu homelands towards economic viability. With regard
to South West Africa, the various methods applied by Respondent in this
respect have been detailed in the Counter-:111emorial Asto the•Republic,
Respondent does not consider that it would be warranted to burden the
record with more detailed information than the brief indications of past
and future developrnent contained in the Counter-1femorial 9,which have
not been contested hy Applicants.
In general, Respondent states that its policy has conformed to the
requirement laid down in the following passage:
t IV, p. 318; vide also p. 325.
2 Ibid., pp. 319, 320 and 349-358.
3 Vide para. 10, supra.
• Annual Report of the Economie Commission for Africa to the Economie and
So5ial Council at its Fourth Session (E1C~.14/1f,8), para. 265.
Indus/rial Growlh in Ajrica (E/CN.14/INR/1/Rev.1), 1963, pp. 76,77.
6 Berg, E. J., in The United States and A/rica, edited by Walter Goldschmidt (re
vised edition,F. A. Praeger) (1963), p. 129.
1 Basutoland, Bechuanaland Protec/orate and Swaziland. Report of an Economie
Survey Mission (1960), p. 12.
s Vide III, pp. 1-103.
9 Il, pp. 481-482. REJOIN"DER OF SOUTH AFRICA 279
"It is essential that the utilization of the rcsources of the Non
Self-Governing Territories should be in the best interests of their
inhabitants and should lead to the attainment of a maximum
degree of self-reliance and to the establishment of a sound and
stable economy L_"
59. If the rate of progress of the Bantu homelands towards economic
viability appears to have been slow, the reason therefor is not a lack of
interest or an ulterior motive on the part of Respondent, but rather the
low absorptive capacity of the Bantu themselves. In this connection it is
relevant to compare the promising prospects of the South African Bantu
homelands with the following assessment made by an official commission
of enquiry into the future prospects of the three British High .Commission
Terri tories:
"\Ve have approached our task with the question whether there
are any development projects which could be started promptly and
carried through within the next decade or so-projects which would
carry each Territory well on the way to becoming a viable economic
unit. \Vhile unable to specify the time likely to be required, we
believe that our rccommendations ... make the attainment of this
goal a near certainty in the case of Swaziland, a reasonable proba
bility inthe case of the Bechuanaland Protectorate, and a possibility
in the case of Basutoland. lt should be emphasized, however, that
'viable' does not mean economically independent, or even in
dependent of allocations from Colonial Development and Welfare
funds or other sources; it does mean independent of annual budge
tary assistance and it implies attainment of a healthful existence
and a steadily improving quality of life for the people of the
Territories. In our conception of this approach to viability we ...
have not anticipated ... a reversal~for any reason other than
improved economic conditions in the Territories---of the tendency
for labour to migra.te 2."
60. ln regard to the political aspect, it is a!so not clear what is meant
by Applicants' assertion that the homelands would not be "viable" politi
cal!y. Applicants have not advanced any factual grounds in support of
their assertion, except, perhaps, for the contention that all the inhabitants
of the homelands have not consented to the partition of the Terri tory-a
contention which has already been dealt with above 3•
61. In the political sphcre Respondent's policy, both in the Republic
and in South West Africa, envisages the development of the Bantu ho~e
lands to the stage where they are capable of attaining independence with
in the framework of a free association of states similar to that of a
commonwealth. Respondent's policy ensures that the various groups of
the population are enabled first to develop a sense of unity and nation
hood, before they are given political independence. 1t is precisely those
qualities that have been lacking in several newly independent States in
Africa-with resultant doubts as to their "viabi!ity". Respondent's
1 G.A., 0.R.,Twelfth Se;s., SupplNo. 15 (A/3647), Il, p. 15 (para. -iz).
2 Basutoland, Bechuatialand Proteclorate and Swaziland.Report of an E,:onomic
Survey Mission (1960),p. 12.
3 Vide paras. 40-44, supra.280 · SOUTH WEST AFRICA
policy furthermore avoids the possibility of the domination of some
groups by others-a phenomenon which has also been manifest in many
of the new African States.
It is not true, therefore, as Philip Mason 1 alleges, that Respondent's
policy is to ensure survival for the \Vhite group, or any portion of the
White group-Respondent's policy seeks to ensure the survival of all
groups.
62. Equally unfounded is Mr. Mason's statement that the creation of
Bantu homelands in South Africa is proposed "partly to satisfy a logical
principle and partly to perpetuate White hegemony when White supre
macy has to go'' 2•The only reasoning on which this allegation is based is
to the effect that a consistent application of the principle of creating
separate homelands for different "tribal groups" (to use Mr. Mason's
phrase) would result in a situation whereby Kenya would have to be
divided into 23 states, and Nigeria into more than 100, many of which
in both territories would still contain minorities 2•
The basic fallacy in the above reasoning lies in elevating a practical
consideration relating to political stability into a universally applicable
rule of logic. Respondent does not propound any policy or dogma to the
effect that "Africans of different tribal origins cannot live together" 2•
\Vhether or not different tribes can live together is a question for determi
nation in each particular case. For instance, Respondent has every reason
to think that the eight tribes of Ovamboland could develop into a stable
political unit, and even possibly later join up with the fi.vetribes of the
Okavango.
The features which render different human groups either capable or
incapable of peaceful co-operation within a single state or society, are
many and complex, and science has not spoken the last word on this
topic. What is clear, however, is that ethnie differences (not tribal ones, as
stated by Mr. Mason) between groups would suggest a strong probability
that many such groups are not so capable. The correctness of this pro
position has been established by the whole course of human history, and
the high price paid for disregarding it in recent times has been noted 3•
However, even where there exists ethnie differentiation, Respondent does
not state categorically that different groups "cannot live together". In
some instances there may be features tending towards co-operation which
are stronger than the disruptive forces involved in ethnie differentiation.
Unless such features are manifest, however, Respondent does not con
sider it wise or practicable to force different ethnie groups together into
a mixed social or political entity. If, upon reaching a suffident stage <;>f
development to exercise a mature judgment, some or all of the ethmc
groups in South West Africa were to decide to amalgamate, they would
receive Respondent's biessing, but in the absence thereof Respondent
will resist any attempt at creating a mixed society which Responde1_1t
knows, from experience and historical example, will probably end up m
chaos, bloodshed and disorder.
Mr. Mason refers also to the existence of minorities within the area
of particular "tribal groups" (as he calls them) in Nigeria and Kenya.
The position of minorities is, of course, always difficult. One would like
z Ibid.p.3335.
' Vide Chap. III, supra. REJOINDER OF SOUTH AFRICA
to provide self-determination even for small groups, ifthev are inassimil
able with the majority in a particular State. ln practfce this would,
howcvcr, in many cases be impossible. Although minority status would
probably be most unpleasant for the members of the group concerned,
the existence of such groups would not necessarily affect the political
stability or effectiveness of the State. The latter would depend not so
much on the existence of a minority, but on its relative sizc, power, re
sources, allies, relationship with the majority, etc., or, in other words, its
political effectiveness.
Applying the above principles to Nigeria and Kenya, it becomes
apparent that no valid opinion could be expressed as to the most favour
able political division in those countries without a careful examination of
the local situation. It is clear that mere tribal or dialectic differences
between sections of the same ethnie group would not prima faci,esuggest
any need for separate political institutions, and, as noted above, even
among different ethnie groups cohesive forces may be greater than
disruptive ones. To what extent the systems in Nigeria and Kenya have
indeed made sufficient allowance for the centrifuga! forces of ethnie
differentiation only timecan tell. 1t is nevertheless already clear that both
these States are faced with considerable problems in this regard, and
contain a substantial body of opinion in favour of greater recognition of
ethnie affiliations 1.
F. Consultations with, and Real Wishes o_f,the Native Groups
63. Applicants, in various passages of the Reply 2, charge Respondent
with failure to consult with, or obtain the consent of, the inhabitants of
South Africa and South West Africa before applying a system of home
lands to these territories. In many of these passages Applicants fonnulate
and repeat the charge in general terms; in others reference is made to
specific aspects of Respondent's policy, viz., the creation of Bantu
authorities, the establishment of the Transkei Bantustan, the recommen
dations of the Odendaal Commission, and the endorsement by Respond
ent of the principles of those recommendations.
Respondent will deal firstly with the general charge and thereaftcr
with the specific aspects mentioned by Applicants.
64- In general, Applicants allege that, contrary to the "principle ...
that an essential prerequisite of a valid and viable political system is con
sent of the governed" 1, "Respondent's self-styled policy of 'territorial
apartheid' is predetermined and the method of its application is pre
fabricated". They charge Respondent with "predetermination to imple
ment its policy of apartheid without consultation, other than of an illusory
and perfunctory nature" 4; with "disregard of all attempts to achieve
consultation" 5 ;and they refer to "[t]he history of Respondent's rejection
of consultation" 5; "Respondent's policy of rejecting consultation with
1 Vide Chap. III,supra.
2 Vide IV, pp. 320-325.
3 lbid., p. 320; this passage has already been referred to,vide para. 40,supra.
• Ibid.,p. 320; vide alsop. 323.
' Ibid.,p. 321.282 SOUTH WEST AFRICA
1
the 'Native' electorate" ; and Respondent's "practice of no-consultation
[sic]in South Africa" 2•
65. As has already been indicated 3, Applicants' charge of non-con
sultation rests on a false premise: it presupposes that Respondent's
homeJands policy js directed at changing an existing state of aHairs, by
creating homelands where there had been none before, or by creating a
partition which had previously been non-existent; it suggests by impli
cation that a fully integrated multi-racial society exists in South Africa
and in South West Africa, in fact; that Respondent's polîcy seeks to
change such society by dividing it into separate racial groups and sepa
rating these groups, and that the consent of these groups must therefore
first be obtained. Applicants' approach to the question of consultation
ignores, and is in conflict with, the actual facts of the situation.
Historically the varions ethnie groups inhabiting the Territory to a
large extent always occupied different and separate areas of land, and
each group retained its own identity.
In South Africa the position is the same. Respondent did not create
homelands for the various groups, nor did Respondent bring about the
fact that through the years each group retained its own identity; these
are simply the results of historical development. The situation is reflected
in the following comments by the Tomlinson Commission:
"During the course of time the areas which were effectively
occupied by the Bantu were regarded as reservations for their use
and occupation ... {'.'
"The pattern of land occupation of the races was woven during
the formative period of the history of the settlement of South
5
Africa ... ''
"Territorial segregation bas been the accepted policy of South
Africa since earliest times 6."
And it was succinctly described by the Prime Minister in the following
remark in the House of Assembly: "... we are not now dividing up South
Africa; history divided it up long ago and we are just accepting the ...
consequences 7."
66. Respondent's policy recognizes the factual situation existing in
South Africa and South West Africa; it accepts the separate identity ?f
the groups with their traditional homelands as the basic pattern withm
which progress and development must take place. For this purpose, itis
submitted, Respondent does not require the consent of the groups.
ln so far as Respondent's policy involves changes in the existing state
of affairs, i.e., by the extension of the home areas, or the furtherance of
political and other development of the groups within their areas, or the
adaptations required in the political structure of the groups, within the
framework of the general policy, Respondent has always accepted, and
given effect to, the need to consult with and to obtain the co-operation
1 Vide IV, p. 323.
2 ibid., p.324.
3 Vide paras. 41-42, supra.
• U.G. 61-1955, p. 42 (para. 2).
s Ibid.,p. 46 (para. 44).
6 Ibid.,p. rnr (para. 4).
1 R. oj S.A. Part. Deb., House of Assembly, Vol. 2 (1962). Col. 89. REJOüWER OF SOUTH AFRICA
and consent of the groups concerned, as will be demonstrated below 1.
In those areas of South Africa and South West Africa which are set
aside for occupation by the White group, and in which numbers of non
Whites became settled, it was never contemplated by any group that the
non-White group would acquire political rights within such areas.
Respondent's policy does not seek to alter this position, except to the
extent that members of the non-White group are to be afforded the
opportuity of exercising political rights in respect of their homelands.
In tact, it is the policy advocated by Applicants that would seek to
bring about a major change in the existing situation, for Applicants
propagate "the institution of universal adult suffrage ... within the
framework of a single territorial unit" 2•Such a fundamental change can
obviously not be contemplated without obtaining the consent of all the
groups concemed. In particular, the extension of the franchise to non
Whites within the White areas is inconceivable in the absence of the
consent of the Whites themselves. But there is no doubt that it would not
be possible for any governing authority to obtain such consent, either
in South Africa or in South West Africa. Thus, the Tomlinson Commission
reported:
"... there is a greater determination on the part of the European
to maintain his identity ... This determination expresses itself in
resistance to everything leading in the direction of assimilation 3•
That the European people will not be prepared willingly to
sacrifice their right of existence as a separate national and racial
entity must be accepted as a dominent [sic] fact in the South African
4
situation •
On the part of the European population there is an unshakeable
resolve to main tain their right of self-determination as a national and
racial entity ... 5"
In regard to support generally given to Respondent's policy of separate
development, attention is învited to what is stated hereinafter 6•
67. Turning now to the particular incidents of non.consultation alleged
by Applicants, the first of these relates to the establishment of Bantu
authorities. Applicants stigmatize as an "untenable contention" 7 Res
pondent's statement that "the majority of Bantu have welcomed the
creation of. the Bantu.authorities and have afforded Respondent an in
8
creasing measure of co-operation in developing and extending them" •
In further proof of the correctness of Respondent's above-quoted
statement, Respondent points out, in the first place, that in terms o{
existing legislation it is impossible for Respondent to establish any Bantu
authority without having first consulted with the Bantu concemed. In
terms of section 2 (r) of Act 68 of 1951, "consultation with every tribe
and community concerned" is made a prerequisite for the establishment
1 Vide paras. 67-84, in/ra.
i IV, p. 441.
3 U.G. 61-1955, p. 10 (para. 85) and IV, p. 229 (para. 55}.
• IV, p. 103 (para. zo).
5 Ibid., p.105 (para. z8}.
6 Vide Chap. VI, infra.
7 IV, p. 320, footnote 1.
8 II, p.480. SOUTH WEST AFRICA
of a Bantu tribal authority, while the establishment of a regional or
territorial authority is subject to the following proviso:
"Provided that no regional or territorial authority shall be
established, except after the Minister has consulted the natives in
every area in respect of which such authority is to be established."
In practice, a procedure has been adopted whereby Bantu authorities
are established only on the initiative of the groups concemed, i.e., only on
a request therefor. In fact, no Bantu authorities have ever been estab
lished except upon special request. In the few instances in which the
establishment of an authority was opposed, the opposition emanated
from small dissident minorities. In this regard Applicants rcfer to a
statement made by the Minister of Bantu Administration and Develop
ment in the South African Parliament in 1963 that the Government was
not at that stage planning to grant powers of self,government in any
additional South African areas. As Respondent has indicated, sclf
government for Bantu areas is nota matter that is planned independently
of the wishes of the people concerned; and devclopments in this regard
must therefore await the initiative of the Bantu people themselves.
68. ln regard to the Transkei, Applicants quote an extract from a
statement of the then Chairman of the Territorial Authority of the
Transkei, Chief Kaiser M.atanzima, in which, according to Applicants,
he set out the ground upon which he "defended his support of Respond
ent's proclaimed intention to establish the Transkei 'Bantustan' '' 1.
In order to view the Chief's remarks in their proper perspective, reference
must be made to the portions of the statement preceding and following
the quoted extract. For the sake of convenience, Respondent reproduces
the whole of the latter part of the statement, including the passage quoted
by Applicants:
"There are two roads leading to freedom, namely (a} by peaceful
means and (2) (sic) by revolution. The people who oppose the attain
ment of self-government under the proposed Transkeian Constitution
are the protagonists of a revolution on communistic lines. White
South Africa is one hundred percent agreed on the maintenance of
white control of the white Parliament. Only their defeat on the
battlefi.eld will divest them of this resolution. Will those people who
oppose the peaceful road taken by the Transkei corne out and
advocate a revolution? They will not do so. They will only put the
ignorant Bantu with their resounding, meaningless phrases of
'Freedom in our time', 'Inkululeko ... , etc.' into trouble aftcr
collecting all the money thcy can get from these poor people for
their comfort.
The Transkei people, with the exception of the mental patien~s
who are easily misled, will not be duped into a situation which w1ll
ruin their country. The Whites who advocate a multi racial Parlia
ment for the Transkei are not sincere. They are hypocrites of the
worst kind. They know that if this cheat is accepted by the Bantu
and (sic) whites wîll always control the affairs of the Transkei under
their old policy of 'time is not ripe'. The Transkei people want to
take control of every department of the Transkei state. They want
1IV, p.320. JlEJOI~DER OF SOUTH AfRICA 285
to hold executive positions in their govemment in order that they
may direct the economy of their country in the interests of the
Ban tu of the Transkei; but this must be done gradually and success
fully in order to avoid the chaos which characterised the lives of the
people in the socalled free African States. The people of the Transkei
will not object to their kinsmen doing the same in other Ban tu areas
of the Republic. The Transkei people would like to have the mono
poly of trade in their areas. They would like to own industries and
control their system of education in the same way as whites do in
their own areas. ln this way only will the Ban tu live peacefully with
their white neighbours. The people of the Transkei are opposed to
white domination. That is why they advocate a division of the
land-the only practical policy towards the solution of racial conflicts
in the land 1."
69. The same Chief, now in his capacity as Chief Minister of the
Transkei Govemment, subscribed to the policy of separatc dcvelopment
in the following terms when he delivered a policy speech to the Transkei
Legislative Assembly: ·
"We wholeheartedly endorse the policy of separate development
as being the only policy whereby the different races in South Africa
can live side by side in peace and harmony. For this policy ensures
to each racial (sic) full political rights and the maximum possible
development and progress in his own part of our common father
land 2."
70. Applicants allege further that "Respondent's pre-determination
to create 'homelands' ... was made manifest, in explicit terms, long
prior to the events" mentioned in the Reply 3 ,being the events which
immediately preceded the granting of self-government to the Transkei 4•
Applicants' allegation discloses the fallacious assumption which has
already been exposed above, viz., that Respondent's policy is to "create"
homelands 5•The sources quoted by Applicants in support of their alle
gation 6 do not in fact warrant any such assumption 7;they merely show
that it was the extension of political rights to the Bantu in their cxisting
homelands which had long been foreshadowed 7.
In fact, as has been shown in the Counter-Memorial 8, the initiative
and driving force behind the establishment of self-government in the
Transkei came from the inhabitants of the Territory themselvcs.
7r. Finally, Applicants relate their charge of non-consultation speci
ficaUy to the ûdendaal Commission report and its endorsement, in
principle, by Respondent 9•They assert that "Respondent attaches so
1 Texto( statement sent to the Press.
1 Debates of the Transkei Legislative Assembly, 2nd Session, Firsl Asseinbly, 5
May to 19 June 1964, p. 67.
3 IV, p.324.
• As described in II, pp. 478-479 and referred to in IV, p. 324.
' Vide paras. 42 and 65, supra.
6 IV, p. 324, footnote 3. The person referred to in this footnote in connection
with the programme announced in 1950 (Dr. Eiselen) was not a member of Respond
ent's Govemment, nor in its service at that time.
7 Vide II, pp. 464-465.
8 Il,pp. 478-479.
9
IV, pp. 324-325.286 SOUTH WEST Al.-RICA
little significance to consultation with the 'Natives' in the Territory,
that the Memorandum nowhere refers to such consultation as having
taken place prior to the release of the Commission's report or of its endorse
ment, in principle, by Respondent". Similarly, it is alleged that ''no
mention is made of consultation, either in the terms of reference of the
Commission, or in the Report of the Commission itself" 1.With reference
to an extract from the report, quoted by Applicants 2,they allege:
"Apart from attributing recommendations for establishment of
'territorial apartheid' in the Mandate to a mere 'impression', based
upon undisclosed 'evidence', the Commission does not refer to the
fact-which consultation with the inhabitants would have made
inescapably clear-that the inhabitants would 'prefer' to 'have and
retain residential rights' and 'political say' in the White area ... 3"
Respondent will show that the charge of non-consultation in connection
with the recommendations of the Odendaal Commission is untrue.
Attention will first be given to consultations held by the Commission
itself before it brought out its report; thereafter consultations subsequent
to the publication of the report will be dealt with.
72. In support of their averment that no mention is made of consulta
tion in the terms of reference of the Odendaal Commission, Applicants
refer to an extract from the terms of reference which was quoted in
Respondent's Counter-Memorial 4.Respondent submits that it is implicit
in the extract quoted from the terms of reference that the Commission
would consult with the inhabitants of the Territory; withotit such
consultation the Commission could not have carried out its task "to
enquire thoroughly into" the various matters mentioned in the terms of
reference.
Moreover, it appears from the Commission's full terms of reference,
reproduced in its report (which Respondent has introduced as a relevant
document in these proceedings) 5,that the Commission was granted the
following power:
"And in order that the Commission may be better able to carry
out this Commission, it is granted full power and authority to
interrogate at its discretion ail persons who in its opinion are able
to furnish information on the subjects mentioned in its terms of
reference or on matters relating thereto 6."
73. The Commission in fact made every attempt to consult with and to
obtain the views of as large a section of the inhabitants as possible. This
is amply proved by the following extracts from the Commission's report:
"2. Procedure.
In carrying out its terms of reference your Commission
(a) held meetings where necessary;
. . . . ................. .
(d) heard evidence at various centres, geographically so planned as
1 IV, p. 324 (italics in original, footnotes omitted).
2 Ibid., pp. 324•325.
3 Ibid., p.325.
• Il, p. 476; IV, p. 324, footnote 6.
5 IV, p. 197 (para. 2).
6 R.P. No. 12/1964, p. 3 (para. 1 (iii)). REJOINDER OF SOUTH AFRICA
to be within reach of each person, body and authority in South
West Africa ...
(e) publicized the enquiry by-
(i) notification in Government Gazette, Vol. V, No. 336 of the
21st September, 1962, Government Notice No. 1535, in
both official languages;
(ii) notification in OfficialGazette Extraordinary of the Adminis
tration of South West Africa, No. 2430 of the 21st Sep
tember, 1962, in Afrikaans, English and German;
(iii) notices in the press, both in the Republic of South Africa
and in South West Africa, announcing the tenns of re
ference, as well as by invitations to persons and bodies to
make relevant contributions;
(iv) furnishing particulars to the inhabitants of the Territory
through the officiais concerned where necessary;
(v) news broadcasts on Radio South Africa.
3. Your Commission did everything in its power to publicize this
matter as widely as possible. Persans and bodies were invited to sub
mit evidence, either in writing and/or orally, on any matter of any
nature whatsoever which could contribute to the development of
South West Africa and its population. If they so desired, witnesses
were allowed to give evidence in camera before the Commission 1."
In regard to paragraph 2 (e) (iv) of the report, quoted above, the
particulars were made known to the inhabitants by means of circular
letters which were distributed by officiais in the various Native areas, and
also by oral intimations by such officiais to the recognized leaders,
organizations and other individuals in such areas.
In connection with paragraph 2 (d) of the report, quoted above, a list
of the places visited by the Commission is set out elsewhere in the report 2;
from this it is apparent that the whole of the Territory was fully covered
and that ample opportunity was afforded to ail persans in the Territory
to attend the meetings and to make representations to the Commission.
74. The Commission succeeded in making widely known its desire to
consult persons and organizations on the matters covered by its terms of
reference. In consequence of the steps taken to that end, as described
above, a large number of persons and bodies gave oral evidence before
the Commission and/or submitted written memoranda to it. A list of
these persons and bodies is supplied in the Commission's report 3. By
far the majority of them were members of, or represented, the non-White
groups of the Territory. From the said list it would seem that 1,267
representatives of the Bantu groups in the Territory, 346 Nama represen
tatives, 6 Damara representatives, and 14 Coloured persons, making a
total of 1,633 non-Whites, appeared and gave evidence before the Com
mission, while 20 individual Natives and a number of non-White bodies
submitted written memoranda.
The Commission gave ail the persons and bodies appearing before it
every opportunity to air their views. In particular, the Commission by
means of questions endeavoured to ascertain the wishes of the various
' R.F . .No. 12/1964p. 3 (para. 1 (iii)).
2 Ibid., pp. 533 and 535.
3
Ibid.,PP· 537,539,541,543,545,547,549 and 551. 288 SOUTH WEST AFRICA
groups of the population as to their further development. As will apptar
from statements in its report, the Commission, in formulating many of
its recommendations, gave due consideration to the representations made
toit on behalf of the various groups.
Apart from the Bushmen, there were only two groups whose members
failed to make any representations to the Commission. These were the
Herero in the Police Zone and the Rehoboth Basters, numbering 35,354
and II ,257, respectively. But it was certainly not the fault of the Com
mission that they did not appear before it. They were in fact specially
invited to meet the Commission, but declined the invitation.
75. ln their above-quoted comment lon the report of the Commission,
Applicants refer to the fact that the evidence mentioned in the report
was "undisclosed". The Commission decided to treat all the evidence
given before it as confidential. The fact that the evidence was not pub
lished does not, of course, in any way detract from the Commission 's
2
statement that its impression was supported by the evidence.
By the tenor of their reference to "a mere 'impression', based upon
undisclosed 'evidence' ", Applicants, however, imply that thcre was in
fact no evidence to support the Commission's recommendations. Re
spondent deprecates the suggestion of dishonesty on the part of the
members of the Commission, particularly in view of the fact that Appli
cants have made no attempt to substantiate their suggestion. The
members of the Commission are well-known men of high standing and
citegrity, and Respondent proposes to treat the suggestion with the
nontempt it deserves.
76. Applicants have not adduced any proof of the alleged "fact" that
"the inhabitants would 'prefer· to 'have and retain residential rights' and
'political say' in the White area" 3• Their statement of the "fact"
amounts to no more than conjecture as to what views would ha\·e been
advanced by the inhabitants, had they been consulted, based on the faIse
premise that they were not consulted. As Respondent has shown, the
Commission in fact did consult the inhabitants, and its findings were
bascd on the evidencc received by it.
77. Although it is correct that Respondent's Memorandum 4 does not
refer to "consultation as having taken place prior to the release of the
Commission's Report or of its endorsement, in principle, by Respond
ent" 5.Respondent denies the inference which Applicants seek to draw
therefrom, viz., that "Respondent attaches so little significancc to con
sultation with the 'Natives' in the Territory" 5• The incorrectness of
Applicants' assertion will be demonstrated by a bricf reference, in the
following paragraphs, to the consultations which were in fact held
1 Vide pam. 7 1,supYa.
2 lt may be notcd that the report was drawn up in Afrikaans, and that the
English version of the extract from the Commission's report quoted in IV, pp.
324-325, is not an exact translatioof the Afrikaans text. In the Afrikaantext the
phrase used is "beslis onder die indrugekom, gestaaf <leur getuienis".the equival
ent of which, in the English language,is "formed the definite (or clear) impression,
supported by evidence".
3 IV, p. 325.
• Ibid., pp. 2or-217.
5 Ibid., p. 324. REJ01:SDER OF SOUTH AFRICA
after the Report of the Odendaal Commission had bcen drawn up.
78. Shortly after the report of the Commission hacl been tabled in
Parliament, the Minister of Bantu Administration and Development
visited South West Africa and held meetings with the different Native
groups in the Territory. Between 18 and 25 February 1964 the i\Iinister
addressed meetings at Runtu, Ondangua, Ohanguena, Ongandjera,
Ohopoho, Okombahe and Okakarara. The tact that the meetings would
be held and the purpose thereof had been made known as widely as
possible in advance to the various groups by the officiais stationed in
Ovamboland, the Okavango and the Kaokoveld, and also amongst the
Damara and Herero groups.
At cach of these meetings the Minister explained the most important
recommendations of the Commission relating to the particular area. He
described the area of land which the Commission rccommended should
be set aside as a homeland for the group concerned, and detailed the
Commission's proposais for such homeland with regard to the creation
of legislative councils, executive committees, community authorities, and
courts, the institution of citizenship and the franchise, the extension of
health services, the expansion of educational facilities, the improvement
of agricultural methods, economic development, and so forth. At each
meeting the i\1inister prescnted copies of the Commission's report to the
leaders of the groups attending the meetings to enable them to study the
contents and to convey information to their followers, and at every
meeting the leaders and mcmbers of the groups attending were en
couragecl to put questions to the Minister, and to express their attitudes.
These consultations took the form of meetings, which is the traditional
method of communicating or dealing with the Native groups and tribes,
and it has been in vogue since the inception of the Mandate. In this
regard Respondent finds it apposite to quote the following remarks of
General Smuts in his statement to the Fourth Committee of the United
Nations General Assembly on 4 November 1946:
"The wishes of the Natives were expressed in an equally demo
cratic but rather different form, having regard to their differing
tribal customs. The Committee will appreciate that in the Jess
advanced communities such as comprise the Natives of South West
Africa, the tribe is the recognized political unit. lt provides in effect
the whole basis of administration and government. Any form of
consultation therefore which did not have propcr regard to ;',l"ative
tribal customs and susceptibilities, which was not in accord with
the fonn in which the Natives are consulted in the course of normal
administration and government by their chiefs and councils, would
not have resulted in a valid or free expression of their wishes. Hence
it would be mistaken to regard the consultation which was carried
out as a referendum of individuals. Such a notion is entirely alien to
the mind of the tribal native. Rather was it a consultation of the
wishes of tribal units, the views of the individuals being ascertained
by the tribal authority in the recognized traditional and customary
1
fashion ."
t Government White PapeY, containingthe Documents relatingto the considera
tion by the United Xations General Assembly at the 2nd Part of its 1st Session on
the question of the future status of South \Vest Africa, p. 33.290 SOUTH WEST AFRICA
79. AHthe meetings addressed by the Minister, referred to above, were
well attended hy members of ail the groups, with the exception of the
meeting at Okakarara (Waterberg Reserve), where noi many Herero were
present. The minority section, which was represented, expressed its
agreement with the Commission's recommendations relating to the
Herero. At Runtu (Okavango territory), Ondangua and Ohanguena
(both Ovamboland), spokesmen of the groups expressed their agreement
with the recommendations of the Commission as explained to them by the
Minister. At Ongandjera (Ovamboland) one speaker raised objections to
the Commission's recommendations, but the reaction of the leaders and
the people present was generally very favourable to the Commission's
recommendations. At Ohopoho (Kaokoveld) the reaction of the audi
ence was neutral, the attitude of the headmen being that they could
not speak if Hosea Kutako had not spoken. At Okombahe three of the
Damara leaders expressed agreement with the recommendations, while
one, who was supported by only a small section of the gathering,
opposed them. .
Thus, excepting the meeting in the Kaokoveld, and except for the
majority of the Herero group in the Police Zone (who refused to attend
the consultations), _thereaction of ail the Native leaders, i.e., the Chiefs
and Headmen who were consulted, and the majority of their followers,
was overwhelmingly in favour of the Commission's recommendations.
80. Consultations were also held with the other non-White groups in
the Territory. On 17 and 18 February 1964 the l\1inister of Coloured
Affairs addressed meetings of the Coloured people at Windhoek, of the
Rehoboth Basters at Rehoboth, and of the Nama people at Tses and
Karasburg. At each meeting the appropriate recommendations of the
Commission were explained and a copy of the report handed to the
representatives of the people present. The Coloured group enthusiasti
cally supported the recommendations, but small minorities of the Nama
and Damara, and the majority of the Rehoboth Basters, were opposed to
them.
During March 1964 a meeting was held with the Bushmen at Tsumkwe,
in the proposed Bushmanland, at which the Commissioner-Generai for
the Native population of South West Africa explained the appropriate
recommendations of the Commission.
81. The Deputy Minister of Bantu Administration and Development
addressed meetings of the Location Advisory Boards of Walvis Bay and
Windhoek on 21 and 22 February 1964, at which meetings the recom
mendations of the Commission were summarized, with special reference
to the proposed homelands for each population group and the recom
mendations regarding Natives in the urban areas. Each Advisory Board
was handed a copy of the report, and questions were asked and answered.
The Board members intimated that they could not accept or reject the
report on behalf of their people but said that they would inform their
people of the contents and implications thereof.
82. The Prime .Minister addressed a large gathering of the White
inhabitants of the Territory-some non-\Vhites were also present-at
Windhoek on 15 February 1964. He explained in detail the main recom
mendations of the report. Subsequently, the Legislative Assembly of
South West Africa resolved unanimously to adopt the Commission's
report and to approve of the decisions of the Government as contained REJOINDER OF SOUTH AFRICA
in the ~lemorandum in connection with the Commission's recommenda
tions 1•
83. More recently, further consultations have been held with the non
White groups in the Territory.
During October 1964 the Commissioner-General for South West Africa
addressed well-attended meetings of all the Ovambo tribes in their own
areas. He referrcd to the main recommendations of the Odendaal Com
mission and fully explained Respondent's decisions as contained in its
Memorandum. At all the gatherings, after the Commissioner-General
had spoken, representatives of the tribes expressed their sincere thanks
for the measures already taken to implement the Commission's recom
mendations and asked that the remaining recommendations should be
carried out as quickly as possible.
Later, the wholc Ovambo nation through its tribal leaders submitted
a written petition to the Prime Minister requesting, inter alia, the imple
mentation of the Commission's recommendations, and particularly the
recommendation re]ating to the creation of a central governing body for
Ovamboland 2•
In the Okavango territory, the Bantu Affairs Commissioner held
meetings during September 1964 with ail the tribes in their own areas.
The meetings were well attended and a keen interest was displayed in the
discussion of the recommendations of the Commission relating to the
Okavango terI"itory and Respondent's decisions thereon. The Okavango
people were pleased with what had already been done to give effect to
some of the proposais and expressed the hope that the remaining recom
mendations would be implemented without delay.
The Administrative Officer in charge of the Kaokoveld also presided at
similar meetings in that area. Ali those present at the said meetings de
clared themselves in favour of the recommendations of the Commission,
especially the proposai that a homeland should be recognized for each
group.
ln the Police Zone further steps have been taken to acquaint the non
Whites in the reserves and in the urban locations with the Commission's
proposais and Respondent's decisions thereon. With the exception of
members of the Herero and Rehoboth Baster groups, who have adopted
an attitude of aloofness towards anything connected with the Odendaal
Commission, the information has been received with great interest.
Many requests have been received that the recommendations should be
implemented as soon as possible, and co-operation in carrying out this
task has been promised.
84. ln the premises aforestated Respondent denies Applicants' various
allegations regarding lack of consultation with the inhabitants of South
Africa and South West Africa.
G. Applicants' Allegations regarding "Fostering" of Tribalism
85. Throughout the Reply Applicants repeatedly refer to what they
1 IV, pp.201-217.
2 Vidt Petitionto the Honourable Dr. H. F. Verwoerd dated 24 October 1964
from Chiefs and Hcadmen of Ovamboland. 292 SOUTH WEST AFRICA
term Respondent's "policy of fostering [the] differences" 1 between the
various population groups in South West Africa and of "encourag[ing]
separateness among the 'groups' " 2•At times this policy is also described
as one of "encouraging" 3 or "fostering tribalism" \
This alleged policy, as well as the measures which are allegedly applied
in implementation thereof, is not only repeatedly criticized in the Reply,
but Applicants also venture to comment that "Respondent ... stops
short of an attempt to justify its ... policy of fostering such differences'' 5•
The charge is a strange one, for nowhere in the Counter-Memorial did
Respondent say, or in any way intend to suggest, that its policy involved
the fostering of differences. Respondent admittedly stated that its policy
was based on the existence of differences between the various population
groups, differences which were of such magnitude and permanence that
Respondent thought it necessary that its policy should have due regard
thereto. Rcspondent also dealt with the wishes of the different groups in
this regard, and with what it considered to be the advantages of a system
of differentiation and separatc development. The fact that Respondent in
framing its policies gives due consideration to the existence of material
differences betwecn the population groups is, however, no justification for
a charge that Respondent fosters such differences.
86. It would appear, however, that Applicants' complaints in the
present context are founded on the premise that any differentiation on
the basis of membership in a group, class or tribe is violative of Respond
ent's obligations under the Mandate and cannot be justified in law.
Thus they statc generally that Respondent's "policy of fostering" the
differences between the various population groups are "precisely [the]
aspect, inter alia, of Respondent's conduct toward the inhabitants of the
Territory upon which Applicants ground Submissions 3 and 4''6•
And with regard to particular aspects of govemment, Applicants makc
allegations which can only be consistent with a proposition that the
Mandate did not permit the fostering of tribal institutions or affilia
tions 7•
87. Respondent has already demonstrated that the authors of the
Mandate could never have intended to impose a prohibition against
differentiation on a group basis, and in fact themselves made express
provision for such differentiation in respect of certain particular matters 8•
If Applicants' contention relative to tribalism (i.e., as understood in the
preccding paragraph) were to be correct, it would be surprising that
Respondent was pcrmitted throughout the lifetime of the League of
Nations to apply the policies on which it regularly reported to the Council
of the League. In pursuance of the said policies Respondent, while
taking steps to eliminate tribal customs and practices which were re
garded as being in c:onflictwith civilized concepts and standards, and while
1 Vide, e.g., IV, pp. 261, 262 and 271.
2 Ibid., p. 316.
JIbid., p. 375.
• Ibid., p. 413 and vide also p. 469.
5 Ibid.,p.26r and vide also p.271.
6 Ibid., pp261-262. As to the premise underlying Applicants' Submissions 3 and
4, ibid.pp. 269 and 493.
1 Ibid ..pp. 375 and 4rz-.p 3.
8 Vide sec. B. paras. 8-n, supra. HEJOINDER OF SOUTH AFRICA 293
seeking to introduce to the Natives modern methods and to lead them on
a path from a traditional society to a modern one, at the same time re
cognized their indigenous social and political institutions and adopted a
system of "indirect rule", in which the said institutions could, and did,
play a meaningful part 1,as they still do today. But not only was Respon
dent permitted to recognize and make use of the existing tribal systems
and institutions, it was indeed commended by the Pem1anent Mandates
Commission for doing so. In this connection the following statements
in the Counter-1\lemorial relative to the attitude of the Commission, being
strikingly apposite, are for convenience repeated here:
"In 1922 the Commission is recorded to have said:
'The Commission expresses the hope that the primitive organisa
tion in tribes may be maintained unaltered wherever it still exists' 2."
"In 1923 M. Yanaghita expressed the view~
'that the mandatory Govemments are to be commended on their
adoption of the principle of maintaining the former organization of
the tribes, and of recognising the power of the chiefs up to a certain
point' ."
88. As Respondent has further demonstrated 3, until the Second
World \Var, and to some extent even for some years thereafter, the posi
tion was substantially the same in ail the colonial and mandated terri
tories in Africa south of the Sahara, in that the indigenous population
groups, while not participating in the processes of central government,
were allowed a measure of self-government of a traditional or localized
nature through their indigenous or tribal institutions.
It may be apposite also to give an illustration of the views expressed
in meetings of the Permanent Mandates Commission by members of the
Commission and representatives of the respective Mandatories relative to
such practices in particular mandated territories. This will be done by
quoting extracts from the Minutes of the Commission which relate to
certain territories.
(a) Tanganyika
(i) Mr. Ormsby-Gore (Representative of the Mandatory Power) in
I925 ~:
"\Vhere the tribal organisation was fully alive, the best
system of administration was to work through the Native
organisation.
It was the policy of the British Government to retain the
tribal organisation, and, where possible, this would be the
policy in Tanganyika.
. . . . . . .
It was the policy in regard to Tanganyika to rebuild the tribal
system, where it has been destroyed and to maintain and
extend it where it existed."
' II,pp. 422-424.
2 [bid.,p. 417.
3 Ibid.,pp. 430-431.
4 P.M.C., Min., VI, p. 126. SOUTH WEST AFRICA
294
(ii) Mr. Scott (Representative o.f the Mandatory Power) in I926 1:
"The idea of the Government of Tanganvika was that a 'good
African' should be an African from the bottom, and that
meant that he should not be eut away from his roots, which
were in the country and in the traditions in which he was barn
and in which he Iived.
. . . . ................ .
The Government did not wish to deny to the African Native
the benefits of Western civilisation. but wanted him to assimi
late gradually the most suitable and best elements of that
civilisation grafting them on to his old and original African
ideas and traditions. He should be improved and trained by
the influence of Western civilisation, but in such a manner that
the ingrained native feeling should not run counter to or
smother it."
(iii)Sir Donald Cameron (Representative of the Mandatory Power)
in I927 quoting /rom the Mandatory'1, Report for the year I926:
"Being convinced that it is neither just nor po;;sible to deny
permanently to the natives of the territory any part in the
government of the country, the Government of this territory
has adopted the policy of native administration, a policy which
aims at the elimination of race-friction by the provision within
the li!_Ilitsof their own nativè administrations of legitimate
scopc for the political interests and aspirations of Africans both
educated and uneducated, so making it possible for them to
evolve, in accordance with their traditions and th~ir most
deeply-rooted instincts, as an organised and disciplined com
munitv within the State, which, bv reason of the widelv
divergent degrees of civilisation and 'wealth of its componerit
races, does not admit of political evolution analogous to thàt
of homogeneous nations in Europe and elsewhere in the world.
. . . . . . . . . . .....
We have supported this system of native administration
principally for the reasons which I have given-that is, to
find for the native a place in the body politic, giving him a posi
tion which is founded on his own inherited rights and duties,
which is based on his own native laws, customs and traditions.
It is a system which he understands, and for that reason we
are not inventing it nor have we invented it, as some of the
critics have inferred who have no knowledge or experience
of the administration of countries with a population of primi
tive Africans. \Ve have not invented the svstem; it is a svstem
which the native has inherited. · ·
Apart from the political reason, the second reason why we
have adopted this system is in order to preserve the discipline
and authoritv which the native knows, in order that the whole
social fabric of the native may not fait to pieces, as it has donc
in certain parts of Africa where the native has become detri
balized 2."
2 Ibid.,XI, pp. 61-62. r40. REJOI~DER OF SOUTH AFRICA 295
(bJ Togoland (under British Mandate)
Mr. Thomas (Representative of the Mandatory Power) in 1931:
"With regard to general administration, the system of indirect
rule has for some time been encouraged in .the northern terri
tories and the northern section of the British sphere. Political
officers have given study and thought to native customs, laws
and institutions, which will assist in paving the way for re
establishment of the native authority, and the introduction of
indirect administration in Dagomba 1."
(c) Cameroons (unier British Mandate)
(i) M r. Ormsby-Gore (Representative of the M andatory Power)
in 1926:
"In West Africa, the Administration was endeavouring to
develop the system of indirect rule through the indigenous
native institutions. The policy was not to appoint individual
natives who would be in the service of the British Government
but to work through the emirs and chiefs and the tribal organi
sations 2."
(ii) M. Orts (Acting Chairman of the Commi·ssion) i·n1936, referring
to the M andatory's report for 1935:
"This system, which was based on native institutions and
customs and on the local conditions of each administrative unit,
varied considerably in different districts. The only essential
consideration which was everywhere applicable was, according
to the report, the principle that the native authority, whether
represented by a single chief or a more or less numerous council
of natives, should be able to command and receive the obedience
of the community. It was stated ... that the system was
popular and was working satisfactorily 3.''
(d) Ruanda-Urundi
M. Halewyck de Heusch (Representative of the Mandatory Power)
in 1928:
"... the Belgian Govcrnment still adhered to the system of
indirect Govemment, which had given excellent results i".
(e) New Guinea
(i) Sir Joseph Cook (Representative of the Mandatory Power) in
1922:
"The Policy of the Commonwealth Govemment was to pre
serve native customs, interests and rights wherever such
customs, interests and rights could usefully be retained.
Among the new Ordinances there was an Ordinance for the
special purpose of protecting native customs ."
(ii) Sir Joseph Cook(Representative of theMandatory Power) in 1924:
"... it was clear from the report that the policy of the Adminis
tration was to educate the native with a view to enabling him
' P.M.C., Min., XXI, p. 4r.
2 Ibid.,X, p.95.
3 Ibid., XXX, p. 53.
'Ibid., XlV, p. 117.
' Ibid., IIp. 34.296 SOUTH WEST AFRICA
to contrnl his own destinies under the supervision of the man
datory. Native leaders were set over tribes and left as far as
possible to look after their affairs.
. . . The intention was to give the native as much local govern
ment as he was fit to receive. Refercnce had been made in the
report of last year (paragraph 165) to the fact that the German
Govcrnment had established a system of indirect administra 1
tion and that this system was being continued and extended ."
89. In the circumstances Respondent finds it strange, to say the least,
that, while Applicants have avoided any attempt at controverting the
facts stated in the Counter-Memorial relative to the practices which were
permitted during the lifetime of the League, and the conclusions drawn
by Respondent therefrom, they now advance a charge that Respondent
has violated its obligations under the Mandate because its policies "foster
tribalism".
Perhaps an explanation of Applicants' attitude in this regard is that
they do not deny that "fostering'-'of "tribalism", in the sense of making
use of tribal institutions, was permissible during the lifetime of the League
of Nations and even commended by the Permanent Mandates Com-
2
mission ,but that they contend it is not permissible today. .
In this regard Respondent draws attention .to the fact that in dealing
:with what they rcfer to as Respondent's "poJicy of laissez-faire with
respect to tribalism", Applicants speak of "abdication" by Respondent
of "the positive and progressive obligations of the Mandate" 3, and that
they say that "Respondent's policy may fairly be characterized as a
headlong advance into the pas/" 4. It would thereforeseem that Applicants'
attitude is that, inasmuch as Respondent's obligations in this regard are
"progressive", Respondent must adapt its polic1esto conform to modern
views and should not perpetuate practices which, though permissible in
the past, are in conflict with views generally held at present. Such an
attitude would be in conformity with Applicants' basic proposition
regarding the existence of a so-called current norm of "non-discrimination
or non-separation", in respect of which their argument runs along the
following lines:
, "The relevance of the evolving practice and views of States, growth
of experience and increasing knowledge in the political and social
sciences, to the determination of obligations bearing the nature and
purpose of the Mandate in general, and Article 2, paragraph 2,
thereof in particular ... is of the very essence of the obligation
itself5." (italics added),
an argument which is developed towards a conclusion that Respondent's
obligations under Article 2 of the Mandate are to be adjudged in accord
ance with-
"... the relevant norms currently and generally accepted, rather than
standards or criteria which may have been deemed applicable or
,1P.M.C., Mia., XIX, p. 131.
2 Vide paras. 3 and 4, supra.
' IV, p. 412 (italics added):vide in this regard sec. H, Chap. II, para. 93, infra.
• IV, p. 413 (italics added).
5 Ibid.p. 512. REJOINDER OF SOUTH AFRICA 297
acceptable at the lime the Mandate was conferred·and undertakenY'.
(Italics added.)
If, as would seem to be the case, Applicants' argument relative to tri
balism is intended to rest on the same line of reasoning as that in the
aforegoing quotations, viz., that there is a legal .norm, formulated on
current standards, which prohibits differentiation on, inter alia, a group
basis, and that Respondent's policy is violative of this norm because it is
based on tribal consideration, i.e., because it distinguishes between tribal
groups, then Respondent rcfers to what it has already stated in refuting
the proposition that the Mandate must be interpreted in the light of
2
current views and currently accepted norms or standards •
In their treatment of the economic aspect Applicants charge Respond
ent with "abdication of the positive and progressive obligations of the
Mandate by its policy of 'laissez-faire' with respect ta tribalism" 3, and
they say that-
"... tribalism, which was one of the reasons why 'Native' inhabi
tants were 'not yet able to stand by themselves under the strenuous
conditions of the modern world', bas been deliberately fostered
through apartheid ·I' '.
So also, with regard ta the education of the Native inhabitants of
South West Africa, Applicants aver that Respondent, by "its policy of
'mother-tongue instruction' ", is "encouraging tribalism and thus
rendering [the Natives] ever less 'able ta stand by themselves under the
strenuous conditions of the modern world' " 5.
go. Applicants also refer to criticism of Respondent's policy by othcrs,
such as, for example, Philip Mason who bas commented as follows:
"Can it really be thought that pandering to tribal parochialism
would make for peace or happiness. let atone the development of
any civilization or artistic achievement? ... the argument for
White separation, which is based on the need for White national
survival, is being applied ta the other people of Africa, partly to
satisfy a logical principle and partly to perpctuate White hegemony
whcn White supremacy has to go 6.''
Another cxample is their reliance on statements to the followiilg effect
in the r963 report of the United Nations Special Committee on the.
Policies of Apartheid.of the Govemment of the Republic of South Africa,
viz., "Fourth, the scheme aims at reinforcing tribalism and utilizing the
7
tribal system against African aspirations for equality" , and
"The creation· of Bantustans may, therefore, be regarded as
designed to reinforce White supremacy in the Republic by strcngthen
ing the position of tribal chiefs, dividing the African people through
the offer of opportunities for a limited number of Africans, and
deceiving public opinion 8."
' IV, p. 518.
2 Vide sec. B, supra.
3 IV, pp. 412-413.
• Ibid.,p. 413.
~ Ibid.,p. 375.
6 Tbid., p. 335.
1 Ibid.,p. 357 (para. 149).
8 ibid.,p. 358 (para. 153). SOUTH WEST AFRICA
Respondent denies these unmotivated accusations. That its policy of
separate development is·not inspired by motives as alleged in the fore
going statements, but is indeed directed at the upliftment and advance
ment of the indigenous groups in South West Africa, as we!l as in South
Africa, to self-respecting communities with the aim of ultimate self
realization for each group, is evidenced not only by what has been
stated in the Counter-Memorial and in other parts of this Rejoinder, but
also by what is said in the following paragraphs.
1
gr. As Respondent has already stated , the tribal institutions and
systems which play a part in its policy of separate development are not
considered to constitute the limit to which po!itical development of the
Nativepeoples could take place, but are seen as a part of a progressive
system of evolutionary growth. The traditional institutions and tribal
systems are regarded as, and in Respondent's policy serve as, a basis for
further political advancement which, combined with progress in the
fields of education and economic development, is intended to lead to
wards separate self-realization for the different Native population groups.
In this pattern of development the use of tribal institutions must not
be viewed as a permanent, but as a transitional phenomenon. Respondent
anticipates that in the process of socio-economic development, the tribal
system wiUundergo gradua] changes and may eventually disappear once
it has served the purpose of facilitating the transition from a tradition
bound to a modem society.
In this regard attention is drawn to the recommendations of the
Odendaal Commission relative to the constitution of homelands for the
different population groups in South West Africa and the establishment
of political institutions for such groups, in which institutions democratic
principles are to be grafted onto the traditional tribal systems 2• Also in
the economic and social spheres, the development of the homelands will
bring about changes and adaptations which will, in the course of time,
materially affect and change tribal attitudes and values. In fact, up to the
present, considerable changes in this regard have already taken place.
For example, the changed attitudes of the Natives to regular work; their
willingness to dispose of stock; their willingness to send their children to
school; their adoption of improved methods of farming and marketing of
their products; their change of attitude towards hygiene and health
matters; their development of a sense of thrift and the graduai recognition
of the advantages of storing surplus crops to tide them over periods of
drought and scarcity.
Further proof that Respondent's policy, far from Iimiting the progress
of the Native groups, is a vigorous and progressive one, will be found in
the repo3t of the Odendaal Commission relative to such matters as
health , education 4, agriculture 5, land tenure 6 and, economic and
industrial development 7, and in Respondent's reaction to the commis
sion's proposais 8•
1 Il,p. 478.
1 R.P. Xo. 12/1964, pp. Sr-107 and vide sec. F, para. 3, in/ra.
3 R.P. ~o. 12/1964, pp. 123-205.
' Ibid., pp. 219-263.
~ Ibid., pp. 267,311.
~ Ibid., pp. 85 (para. 310), 87 (para. 323) and 89 (para. 336 ff.)
7 Ibid., pp. 315-489.
8 Supplement to the Counter-ldemorial. REJOINDER OF SOUTH AFRICA 299
That Respondent's policy of recognizing the stabilizing influence of
tribal institutions and customs, and of building thereon with the object
of bringing about a gradual process of evolutionary growth, is a wise one,
can be demonstrated not only be reference to Respondent's experience
1
gained in the application of such a policy in South Africa ,but also by
reference to the views of other persons who can speak with authority
on the subject. This is a matter to be dealt with in the following para-
graphs. . ·
92. A notable authority on tribal institutions and customs, Colin M.
Tumbull, who has held the position of Assistant Curator of African
Ethnology at the American Museum of Natural History since 1959,
states:
"An impartial examination of the details of tribal systems reveals
the falsity of many popular misconceptions, and, although it is not
suggested that such systems can or should be deliberately perpet
uated, it is suggested that there is within them much of very real
value 2."
One of the popular misconceptions referred to by the author as held
among many Africans, Europeans and Americans, is that-
"... tribalism is something backward; incompatible in the modern
world to say the least-and that is leaving a great deal unsaid, for
tribalism is a source of shame to some Africans and a subject to
ridicule and scorn among other peoples 3".
He states as his personal belief that-
" ... there are in tribal systems many values, institutional and per
sona!, that could play a significant role in the developing of new
political and social systems and, indeed, might prove a major con
tribution in the realm of international relations ".
He says further that "... the desire to divorce tribalism from the modern,
contemporary Africa with which we have to deal is both unrealistic and
misconceived" 3•And he expresses the view that-
"[i]f tribalism is destroyed, so, in those areas, is all morality, and in
its place can only corne, for a time that might be an eternity, the
morality of expediency. Far from being incompatible with any
modern process of social evolution, tribalism, properly understood,
could help it on and, at the same time, bring toit all the richness of
the past \"
A similar view is reported in a recent issue of the publication West
Africa to have been expressed by Dr. Azikiwe, President of Nigeria.
In an article in the said publication dealing with a lecture delivered by
Dr. Azikiwe under the title "Tribalism-A Pragmatic Instrument for
National Unity", he is reported to have said that-
"... the word tribe is employed currently in a derogatory manner to
identify the peoples of Africa and Asia, who are invariably described
1II, pp.477-483.
zTurnbull, C. M., "Tribalism and Social Evolution inAfrica", The Annals of the
American Academy of Political and Social Science, Vol. 354 (July 1964), p. 22.
3 Ibid., p.23.
• Ibid., p. 30.300 SOUTH WEST AFRICA
as 'primitive' or 'under-developed' or 'developing' or 'backward' or
what most writers in the nineteenth century used to identify as
'barbarian societies' ".
And he is further reported to have added, "I hope that the new generation
of students of anthropology and history will put things right" 1.
Another authority, Brian McAllister, has expressed the view that-
"[i]t would be a tragedy for Africa if tribalism were to be so weakened
as to leave the mass of people with no feeling of unity, of security, of
belonging to a group. If tribalism is to go-and it will be a long time
before this happens-the great need is for something better to put in
its place, some real spiritual belief ·andstable organisation. Otherwise
the destructive forces which lie verv close beneath the surface will
bring down all the hopes of those who have put their faith in African
freedom 2."
93. Many authorities also testify to the fact that tribal affiliations are
still common and patent factors in the lives of most African peoples.
Thus Rupert Emerson, in dealing with American interests in Africa,
states:
"The social reality of Africa has been and largely continues to be
tribal in nature, dividing the continent into a multiplicity of distinct
and often warring. communities marked off from each other by
language, custom, and structure. As both caste and language
affiliationsare still of great political importance in lndia, soin Africa
the tribal attachments that many had thought anachronistic have
shown their vitality by their resurgence within the orbit of the new
political parties and.institutions 3."
. Writing on the character and stability of African political systems,
James S. Coleman r~marks, inter alia: , .
"... it would be incorrect to conclude that genuine tribalism is an
unimportant factor in African politics. The general trend for national
leaders to condemn any manifestation of tribalism-which, following
the loose language of non-Africans, they also use to denote ethnie
differences-is fair evidence that it must still be a relevant factor 1."
And A. L. Epstein, in a work entitled J:olitics in an Urban A/rican Com
munity, states as follows on the subject on tribalism:
,/.'Ina recent discussion of the question, Professor Harlow refers
to a widely held view that tribalism in Africa is on the way out, and
asks whether, this assumption is valid. 'We may be misled', he
remarks, 'if _wemistake revolutionary changes in tribal custom for
decay.' The potency of 'resurgent tribalism' should not be under
esti~ated, he arg1:1,esO. n the contrary.' its dynamic power should be
hamessed to the fask of nation building' 5.''
Significant in this regard is th.e role which tribal i~stitutions and
1
2 "Hatching Dr. Azikiwe's Egg", West Africa, 30 May 1964, p. 593.
McA]]ister, B., "Tribal Challenge in The New Africa; Resistance to Change
Among Primitive Communities", African World, Sep. 1963, p. 6.
• 3 Goldschmidt, W. (Ed.), The United States and A/rica: Revised Edition (1963),
p. 21.
• Ibid., p. 50.
5 Epstein, A; L., Politics in an Urban African Community, p. 228. REJOINDER OF SOUTH AFRICA 30I.
customs still play in the Applicant States, a matter to which·considera-'
tion is given in the succeeding paragraphs.
94. Liberia is an outstanding example of a State in which constitu
tional arrangements and governmental policies· are largely based on
tribal considerations. Not only is this the position in the Hinterland,
which is inhabited by .different tribes on a regional basis, but tribal
affiliations also play an important role within the more developed and
modern sector of the country along the coast.
According to a publication of the United States Department of Com
merce, Liberia is divided for political and administrative purposes
into-
"... five counties [the Coastal area], 4 terri tories ... and 3 hinterland
Provinces (Western, Central and Eastern). Districts within Provinces
contain local govemment units that are organized into chiefdoms
administered by .paramount, clan, and town chiefs. Until World
War II, the National Government exercised only a tenuous control
over the tribal organization of the hinterland Provinces, and people
from the Provinces took very little part in the administration of the
National Government ."
In commenting on this siti:.ation, W. A. Hance wrote:
"Although a Negro republic, Liberia is in the paradoxical position
of having a native policy very similar to that of a colonial power,
with district commissioners operating under a system of indirect
rule ." •
95. Another authority, G. H. T. Kimble, has given the following de
scription of the administration of the Hinterland areas in Liberia:
"Government in the tribal areas-the Hinterland Turisdiction-is
by clan and paramount chiefs under the direct supervision of district
and Provincial commissioners. In theory these chiefs owe their
authority to the Monrovia government; but the real basis of it is
usually their status, derived either by inheritance or by election, in
the tribal group. Any departure from the established tribal customs
in the selection of chiefs is apt to cause trouble, as the govemment
has discovercd in various instances 3."
In regard to participation in the Central Government, Respondent has
already mentioned that it was not until 1945 that the tribal people in the
provinces of the Hinterland received representation in the legislature of
Liberia for the first time and that representation is still largely based on
tribal lines; one·third of the members of the House of Representatives
represent the tribes. which constitute by far the majority of the popula
tion, whereas two.thirds of the members represent the sma!l minority of
Americo.Liberians i_
96. In Liberia tribal considerations have also shaped the judicial
system, which isof a dual nature in the sense that there are, in addition to
the ordinary courts, also tribal courts, presided over by tribal chiefs in the
1 U.S. Departmen/ of Commerce, "Basic Data on the Economy of Liberia", r959,
p. 4·
2 Hance, \V. A., African Economie Development (1958), p. 237.
J Kimble. G. H. T., Tropical Africa, Vol. Il (I960), p. 35r.
• II, pp. 507,503 and 527.302 SOUTH WEST AFRICA
country districts of the coastal area, and paramount chiefs in the Hinter
1
land provinces •
This system has been described as follows:
"Side by side with the Anglo-American system of jurisprudence
exists a second system of an entirely different nature and derivation.
This is composed of the laws and customs of the many tribes in
habiting Liberia and the courts established to hear cases involving
aborigines or persons residing in the Hinterland. Itis the announced
policy of the government to administer tribal affairs according to
tribal law and custom to the extent that they do not conflict with
statu tes or administrative rgulations ... 2"
In this regard it is instructive to note how future developments are
seen by the Liberian Governme·nt. President Tubman is recorded to
have-
"... stressed the uneven cultural development of the Liberian
people. He pointed to the necessity of having two sets of laws-dvil
law (taken from the West) and tribal law ... and cited arguments
heard elsewhere in Africa (including South African reserves) con
cerning the benefit to all of thisdualcode. But heagreed that tribalism
was a temporary phenomenon and said he planned that the Western
civil law be gradually extended from the forty-mile belt along the
coast into the interior until it covered the whole countrv ... Asked
again, President Tubman said he thought tribal law and,administra
tion would be replaced throughout Liberia in about fifty years 3."
97. In Ethiopia the position with respect to tribalism is somewhat
different from that witnessed in Liberia, and can perhaps best be de
scribed as paradoxical.
The following is a description by G. A. Lipsky of the population com
plex in Ethiopia:
"Ethiopia has been called an Ethnie Museum, and this is in
many ways an apt description. An estimated total of seventy
languages and over two hundred dialects are spoken. The peoples
of Ethiopia profess two major faiths and subscribe to a multitude
of widely differing local religious systems. The peoples are further
distinguished by separate origins, histories and political organiza
tion; by variations in physical appearance, dress, and customs; and
by diverse sources of self-identification and loyalty 4."
The same authority has outlined the attitude of the Central Government
to the population situation as follows:
"Despite the manifest ethnie complexity of the country, the
central government has not formulated any exp1icit ethnie policy.
With few exceptions (notably in the portion of the 1957 Penal Code
dealing with polygamy), it has avoided giving any positive sug
gestion that it recognizes Ethiopia to be a multinational state with
many languages, religions, and cultures 5."
1 Fraenkel, M., Tribe and Glass in Monrovia (1964),pp. 94-95.
2 Allott, A. X, Judicial and Legal System in Africa (1962), pp. 83-84.
3 Munger, E. S.,AfYican Field Reports r95z-r96r, p. 119.
• Lipsky, G. A., Etkiopia: lts People, lts Society, lts Cultr962), p. 34.
' Ibid.,pp. 37-38. REJOI~DER OF SOUTH AFRICA
303
Over recent years it would seem that the Government has been desirous
of bringing about nationalization of the Ethiopian peoples.
Thus the same author has stated:
"Since the return of the Emperor in 1941, the Ethiopian govern
ment has taken a number of steps that clearly indicate it is attempt
ing to prevent the development of strong ethnie loyalties where
they do not already exist, and to supplement ethnie, local, and
regional identification with allegiance to a central Ethiopian govern
1
ment and Ethiopian traditions ."
In this regard Respondent has already drawn attention to the constitu
tional developments in the country, particularly to the position which
obtained after 1931 when the Monarchy became a constitutional one in
which the members of the Chamber of Deputies were, as a temporary
2
measure, chosen by dignitaries and local chiefs , and to the changes
brought about by the new constitution in 1955, which provided for
universal suffrage 3•
98. Although outwardly it may, therefore, appear that ethnie and
tribal affiliations are no longer important considerations in the govern
ment and administration of Ethiopia, the opposite is in fact the case.
Indeed, the 1955 Constitution has been described as being-
"... more a blueprint for the future than a full and accurate
description of the present system. Sorne provisions restate in
Western-style legal language aspects of the traditional system of
the country. Others, as yet only theoretical, foreshadow institutions
and procedures the Emperor views as desirable for the future.
Nowhere is there a break with the basic assumptions of the tradi
tional system\"
Paradoxical in this regard are the provisions directed at the promotion
of national sentiment in the new constitution, when compared with the
views expressed by Emperor Haile Selassie in a speech to Parliament in
November 1955. The Emperor said:
"No single document, however profoi.md and comprehensive, can,
of itself, bring about far-reaching and fondamental constitutional
progress. No constitution al progress can take effect unless it is
rooted in the fondamental traditions, customs, habits, and predi
lections. as well as the legal customs, of the society upon which
it is based 4."
It is no wonder that the situation has been commented upon as follows:
"The Emperor was clearly aware of the difficult problems involved
in making this new constitution a living document.
If the r955 constitution is not to remain a dead letter like its
predecessor, it will have to be accompani~d by a veritable revolution
of thought and action on the part of both its administrators and its
beneficiaries. For it can by no stretch of the imagination be main
tained that this semidemocratic, semimonarchical document is
'rooted in the fondamental traditions' of Ethiopian society. It is, if
1 Lipsky, op. cit.p. 38.
2 II, p. 507.
3 lhid.,p.527.
~ Lipsky, op. cil.p.170. SOUTH WEST AFRICA
anything, so foreign to those traditions in some respects as to. be
scarcely recognizable as deriving from them ... At all events, its
meaning seems to be lost on the vast majority of Ethiopians, if,
indeed, they so much as know of its existence ... The promulgation
of the new constitution ... wa~ probab1y cakulated to impress
foreign observers of the Ethiopian scene and to enhance the prestige
of the Ethiopian govemment abroad 1."
That the new constitution, in so far as its objective was to bring about
nationalization of the people of Ethiopia, has had little effect in that
direction is clear from the factual situation.
Thus it has been stated:
"It will be a long time ... before ethnie identities will be diluted
in any way or supplanted by an Ethiopian nationalism. Even
among Amharas [the dominant group] and certainly in relations
between Amharas and Tigrais such nationalism has not developed 2.''
99. That constitutional arrangements and policies which either dis
regard the existence of tribes within a population complex or are directed
at the elimination of tribalism, are not only unrealistic but dangerous, is
perhaps best evidenced by developments in the new independent African
States, a matter which has already been dealt with 3•
IOO. In the light of the aforegoing, criticism of the wisdom of Re
spondent's policy on the ground· that it is orientated to tribal considera
tions, i.e., in the sense that it is directed towards separate deve!opment of
the different population groups, seems misplaced. And it is surprising that
such criticism should corne from the Applicants when regard is had to
the conditions and practices in their own countries, and particularly in
Liberia 4•
... Ior. In the premises Respondent repeats its denial of the charge that
in.:·tostering" differences between the population groups in South West
Africa and in "foster[ing] tribalism"-i.e., if these expressions can be
regarded as appropria te descriptions of Respondent's policy-it is inspired
with any improper motives relative to the Native groups, or any other
groups, in the Territory.
H. Migratory Labour-as an Alleged Consequence of the
Home1and System, and the Evils thereof
. 102. Allied to Applicants' central theme that Respondent's "policy
and practice . . . is directed toward the primary end of as..<;uringan
adequate 'Native' labour supply in the Territory" 5, are their allegations
in the Reply relative to the system of migratory labour which operates in
the Territorv.
· ·Applicanti.' contention in this regard is that Respondent's policy of
separate development. which "involves creation of so-called 'Bantustans',
'Homelands', or 'Reserves' ",
" ... presupposes, inter alia, a system of migratory labor .in which
1 Luther, E. W., Ethiopia Today {1958), p. 42.
2 Lipsky, op. cit.p. 38.
3 Vide Chap. III, supra.
• Vide paras. 94-96, supra.
5 IV, p.272. IŒJOINDER OF SOUTH AFRICA
305
men whose homes are in such areas spend long periods of labor in
distant urban centcrs or on farms in so-called 'White areas' 1".
They draw attention to the fact that 'in th~ operation of such a system
the workmen are separated from their families for substantial periods 1•
and they contend that the system is the "true cause" of social evils such
as "prostitution, venercal disease, alcoholism, crime and the like" 2• In
support of this contention they quote adverse comment from several
sources regarding alleged "disintegrating effects of migrant labour on
African life" 3, and the "economic ills" and "evil social consequences
particularly the disruption of famHy life" 2, alleged to be attendant on
the system.
103. Upon the case thus presented in the Reply Applicants advance
the following comment:
"Respondent, nevertheless, regards this implicit result of its
admitted policies as so irrelevant to the central issue as to warrant
no discussion whatever, arnong the volurni4ous details with which
the Counter-Memorial is concerned ."
ln Respondent's submission there is no substance whatsoever in this
allegation. It is true that the Counter-Memorial did not deal in particular
with the implications or consequences of the system of rnigratory labour
in the Territory, save for referring to the fact that the Natives in th~
northern territories arc not permitted to remain permanently in the
Police Zone but have to return to their. reserves at the expiration of their
contract periods. The reason for this lack of treatment of the subject in the
Counter-Memorial was precisely because Applicants themselves, while
referring in the Memorials to the fact that migrant labour is recruited in
the northern territories 5, made no complaints relative to alleged social
evits attendant on the system, nor did they then contend that Respond
en_t's policy of separate development "presupposes ... a system of
m1gratory labor" 6.
104. ln view of the allcgations now made by Applicants in the Reply
relative to the role of migratory labour in the policy of separate develop
ment and to the evil consequences of the system, Respondent includes in
this Rejoinder. in its treatment of the Economie Aspect, an exposition of
7
the system and the implications thereof • In thepresent context Respond
ent. in order to refute Applicants' aforementioned charges, wishes to
draw attention only to the following deductions from its more detailed
trcatment of the subject:
(a) although the system of rnigratory labour admittedly has certain
adverse effects and contributes to the social evils mentioned by
Applicants, the undesirable phenomena often attributed to the
system are to a large extent caused by the difficulties which are
lIV, p. 262.
2 Ibid., p.467.
3 Ibid., p.284.
• Ibid., p. 262: vide also footnote 4 on the said page for the peculiar comment that
Respondent's silence in the Counter-Memorial is all the more surprising in the light
of "widespread criticism of precisely this aspect of lsepara te development polie y"
by persans quoted in the Reply.
s ], pp. 123-124.
6 Vide para. 1,supra.
7 Vide sec. H, Chap. Ir, paras. 15-.p, inf•a.3c6 SOUTH WEST AFRICA
experienced, independently of migratory labour, by members of
traditional societies, such as those in South West Africa, in adapting
themselves to the conditions of modern economies and the ways of
modern civilization;
(b) that the system has decided advantages both for the migrant
·worker and for the economy of the Terntory as a whole, and that
it is generally recognized that in countries such as South West
Africa, where a dualistic economy is a fact, i.e., an economy com
posed of a modern sector and a traditional sector, the advantages of
the system far outweigh the disadvantages. Indeed, in the present
circumstances of the Territory, as is also the position in many
territories in Africa having as yet underdeveloped economies and
largely underdeveloped population groups, a system of migratory
labour appears to be the most practical method of utilizing the
available economic resources and fostering economic development 1;
(c) that, for the very reasons aforestated, the system of migratory
labour is a common phenomenon in most countries in Atrica as
well as in other countries of the world where expanding industries,
mining enterprises and agricultural development offer employment
opportunities to workers who are prepared to migrate temporarily
in search of hjgher wages 2;
(d) that, far from Respondent's policv of separate development "pre
suppos[ing] ... a system of migr;tory labor" and being directed
at creating conditions which give rise to migrations of labour, it
aims at the opposite end, viz., the economic dcvelopment of the
Native areas and proposed homelands, so that ever-increasing
employment opporti.mities will be created in such areas in con
sequence of which the incidence of labour migrations to the
European areas in the Police Zone is expected to diminish 3;
(e) that the suggestions made by Applicants that the present migratory
labour force of the northem territories should be permitted to
settle in the Police Zone, and should be permanently aosorbed in
the modern economy of that Zone, are not only economically
unsound and impracticable, but also unrealistic if regard is had
to the interests of the Native inhabitants of the Terri tory as a
whole 4.
In the premises Respondent submits that Applicants' allegations, both
in regard to its motives in permitting a system of migratory labour to
operate in the Territory, and in regard to the implications and conse
quences of the system, are without substance.
1. Philip Mason's Suggestion of Perpetuation of Measures of Discrimination
105. The third basic difference between separate development and
partition, according to Mr. Philip Mason, issummed up by him as follows:
"lndia and Pakistan, Ulster and Eire, face each other as equals;
a citizen of one when in the other is in a position similar to that of
an Englishman in France. The Bantu homelands have not of course
1 Sec. H, Chap. Il, paras.< 15-22.
2 Ibid., paras. 23-28.
3 Ibid., paras. 29-31.
• Ibid., paras.2-4 2. REJOINDER OF SOUTH AFRICA
307
yet reached the projected stage of independence, but it does not
appear to be contemplated that a sirnilar equality should ever
anse .1 ,,
This alleged difference is considered by Mr. Mason as even more
important than the two other reasons advanced by him for distinguishing
between separate development and partition, viz., that "there is ... no
agreement that there shall be partition and the partition proposed cannot
be regarded as fai: .''
106. This argument by Mr. Masan is fallacious, because it rests on the
entirely unwarranted assumption that the present legal provisions in
South Africa are to remain unchanged for ever.
These provisions were designed to meet specific situations and condi
tions, and will necessarily be subject to amendment and adaptation as
circumstances change. Many of them were introduced in the early,
patemalistic stage of group relations, and some have already been adapted
to the needs of the present times. As Mr. Masan himself recognized in an,
earlier work,
"... there can be Jittle doubt that in the patemal stage barriers
are needed and it may be that some barriers are necessary during
the difficult period of transition from a static to a dynamic so
ciety ... 2".
No doubt these provisions will be further adapted to meet changing
circumstances. In regard to ail measures which rnay be considered hurtful
to the dignity of any persan, it is Respondent's policy to repeal thern as
and when the need for them falls away. The position at any stage in the
future will consequently depend on the circumstances then existing, and
in particular on rnatters such as the stage of educational, social and
economic advancernent of the Bantu population generally, and the extent
to which the risk and fear of domination by one group over another has
been eliminated. In this regard, Dr. Verwoerd said recently:
"... the limitations imposed on the freedoms of people (as we find
practically over the whole world where anybody lives in the territory
of somebody else) fall away as soon as evervbody can enjoy his own
freedom in his territory. Even the type of rules which one applies
to protect oneself in one's own territory ... will then be seen in a
more realistic and constructive light. Human rights will have more
opportunity to develop to the full in terms of our policy when
separation takes place and the nations exist alongside each other,
than in terms of the United Party policy, according to wbich
attempts will be made to maintain the position of the Whites for
as long as possible in a mixed comrnunity ... 3"
And the end result sought to be attained was expr~ssed by lùm as "head
ing for racial peace. lt is only the National Party's policy that will
eventually lead to an absence of racial discrimination because itis only
when the races are separated and live like neighbours that discrimination
will be able to disappear" 4•
iIV, p. 332.
2 :Hasan, P., An Essay on Racial Tension {1954}, p. 133.
3 R. of S.A. Parl. Deb., Hou.se of Assembly, Weekly Edition {4 ta 8 l\lay 19(4),
Cols. 5641-5642.
• R. of S.A. Parl. Deb., op. cil(25 Jan. 1963),Col.230.308 SOUTH WEST AFRICA
107. As the pattern of group reJations changes, it may welJhappen that
the provisions objected to by Mr. Masan will disappear completely, or
that only vestigial traces of them will remain in the type of immigration
regulations which are found throughout the world. That these are not
far-fetched possibilities is shown, inter alia, by the fact that even at
present many distinguished non-European persans from foreign States
visit the Republic and are received with hospitality on a basis befitting
their dignity and status 1.And on their attainment of independence,
the Bantu states themselves may, in co-operating with Respondent on a
consultative basis, be able to play a rote in shaping the relations between
the various states and their citizens.
108. The possibilities discussed in the preceding paragraph arc, by
their very nature, bordering on speculation. Whether the developments
there set out will eventuate or not, only the future can tell. What is cer
tain, however, is that no persan is justified in assuming, as Mr. 11Iason
does, that the situation will remain static. Indeed, the probabilities point
in the opposite direction. If the policy of separate development towards
independent homelands is carried out toits completion, the whole sit11a
tion in South Africa will be so radically different from that obtaining at
present that there will in ail probability also corne about far-reaching
changes of various kinds in the relationships between Black and White
and in the legislation pertaining thereto. In Respondent's submission, it is
completely unrealistic, when considering the merits of a political system
which is sought to be established in the future, to condemn it on the
assumption that present legislation will continue in existence although
such legislation was motivated largely by the circumstances which the
future political system is designed to eliminate. ·
J. Mason's Suggestion that the White Population in South West Africa
Is To Be Taken into Account for a Transitional Period only
rng. ln discussing the role of Europeans, and, in particular, White
farmers, in South West Africa, Mr. Mason commences by saying that
the White population at the inception of the Mandate was less than 2
20,000 and that it hardly amounted to a vested interest at that stage .
He then continues:
"lt would show a lack of historical understanding however to
blame the Govemment of South Africa at that time ïor failing to
perceive how rapidly world opinion and African aspirations would
develop . . . It was believed that the prosperity of South West
Africa, and indeed of ail African territories, would depend on
development by Europeans, and European farmers were encouraged
to corne into the Territory 3."
At prese4t, says Mr. Mason, the Europeans are "a considerable veste~
interest" and "contribute substantially to the economy of the Tern
tory" 4. The question then arises: what policy should Respondent adopt
towards the Europeans?
Mr. Mason's answer to this question is as follows:
1 Vide, e.g., the statementby one of them in Chap. VII, para. 37, infra.
2 IV, p. 335.
3 Ibid.,PP· 335-336.
• Ibid .• p. 336. REJOINDER OF SOUTH A.FRICA
"... the :,trgument for giving the Whites special treatment is that
they make a_special contribution to the economy. As a transitional
measure this is a sound argument, but it can hardly justify giving the
Whites a privilcged position permanently 1". (ltalics added.)
This proposition appears incontestable, but it is clear that differences
of opinion could arise on the question as to what constitutes a "privileged
position". In particular Respondent does not consider that ultimate
self-determination for the Europeans is a "privilege" any more than for
the various non-European peoples. Once the "vested interest" of the
Europeans is conceded, as Mr. Mason does, Respondent accepts that
they have a right in the ultimate analysis to take the vital decisions on
their own future.
lt is on this point that Mr. Mason joins issue with Respondent. He
advocates, inter alia, the removal "with all deliberate speed" of racial
distinctions in the Police Zone and preparation of the non-White groups
for a share in political life, perhaps in a federal system. Regarding the
practical effect of the numerical preponderance of the Ovambo, he says:
"It is either disingenuous or naïve to claim that 'one man, one
vote' would mean domination of other groups by the Ovambo and
instead to recommend a system whereby domination is in. fact
preserved by the much smaller White group 1."
The fallacies in this argument are threefold. Firstly, "domination by the
much smaller White group" never existed, inasmuch as the Territory,
and particularly Native Affairs, was always under the ultimate control
of the South African Government and in important respects under the
immediate control of the Native authorities themselves • This situation
resulted from the grant of the Mandate to Respondent, and neither
Applicants nor Mr. Mason can reasonably complain about it. Conse
quently, there exists no "domination" which can be "preserved". Second
ly, the system proposed by Respondent will not involve any domination
by the White inhabitants of the Territory. Eventually the homelands will
become independent, and in the interim it is proposed that ultimate
control should continue to vest in Respondent's Government, n·otin the
European population of the Territory 3.Indeed, the Commission recom
mended explicitly that "only the proposed White area should be ad
ministered by an Administrator, Executive Committee and Legislative
Assembly" 3.And, thirdly, even the control which it is proposed Re
spondent would exercise in respect of homelands is destined to fall away.
The intention is that the end result will be a situation in which no group
will dominate any other.
IIO. In the result it is submitted that Mr. Mason must be held guilty
of the naïveté or disingenuousness of which he accuses Respondent.
Everybody, including Respondent, will agree with him that the present
position, in which the European section of the population of South West
Africa exercises greater political rights than other sections, can be justified
only on a transitory basis, and that the goal should be equality among
the various groups. Respondent does not, however, agree that this goal
can be achieved by reversing the present position and subjecting the
1 IV, p. 337·
2 Vidé IIIsec, E, pp. 105-131.
3 Vide R.P. No. 12/1964,pp. 61-62.JIO SOUTH WEST AFRICA
White inhabitants to political control by the largest group of non
Europeans. That wouJd be going beyond abolishmg the "pridleged
position" of the Europeans, and would in fact amount to depriving them
of their right of self-determination. And, despite what Mr. Mason says,
he cannot seriously suggest that any government controlled by any of
the non-European groups in South West Africa could, within the rela
tively near future, maintain the present high standard of administration,
order and prosperity in the.Territory.
K. lncidental Matters Referred to in the Reply
III. In the course of the treatment of the policy of separate develop
ment in the Reply and in the various Annexes thereto reference is made
to, or comments passed on, a number of points of incidental importance,
or matters which are fully dealt with elsewhere in this Rejoinder. ln so far
as Respondent deems it necessary to deal with such questions at all, they
will be considered seriatim in the next succeeding paragraphs. ·
II2. Applicants say:
"... a highly relevant question is Respondent's maintenance, up to
the present, of a subsistence economy in the Reserves. No evidence
is adduced by Respondent to justify its policy in this respect l_"
This matter is dealt with fully in the section of this Rejoinder which
is devoted to a treatment of the economic aspect 2. In view of what is
stated there Respondent denies the allegation of "maintenance up to the
present of a subsistence economy in the Reserves".
u3. Applicants say that-
"... during an indeterminate, and probably permanent, 'transition
stage', Respondent describcs its objective, with respect to the in
habitants of the Territory, as well as of South Africa, as that of
serving as 'guardian' in order to-
'... keep the ward in hand and teach him and guide him and
check him where necessary' 3."
Respondent concedes that the transitional stage to complete territorial
separation is indetenninate, but it is absurd to call it permanent. lt is
Respondent's policy to grant independence to the various groups as and
when each group becomes ripe therefor. In particular, with regard to
South West Africa Respondent draws attention to its acceptance in
principle of the recommendations of the Odendaal Commission in this
regard~- The exercise of Respondent's guardianship during the transi
tional period will therefore have to be adapted to the individual needs
of the different groups at various stages of advancement. And, as regards
Natives within the White areas, Respondent has already shown that
their position also will prohably undergo an evolutionary development 5.
It is completely wrong, however, to describe these matters as constituting
Respondent's "objective with respect to the inhabitants of the Territory"
-Respondent's objective is and remains that of advancing the ,·arious
1IV, p. 262.
2 Vide sec. H, Chap. Ill,paras. 2-13, infra.
3IV, pp. 315-316.
• Ibid.,p. 203.
' Vide paras. 106-108, supra. REJOINDER OF SOUTH AFRICA 3II
Native groups towards eventual independence. The interim measures
referred to are purely incidental to this objective, and serve only to
provide for circumstances and problems which are entailed in the situa
tion existing before ail homelands have achieved full independence, and
are consequently by their very nature subject to continuous revision and
adaptation. lt also stands to reason that the nearer the ward develops to
maturity, the 1ess need there will be for tcaching, guiding and checking
n4. In Mr. Mason's article (Annex 1 to the Reply) there appears a
suggestion that the financial contribution of the South African Govem
ment towards the development plans recommended by the Odenda.al
Commission would not be gencrous "if South West Africa is regarded as a
province of the Republic" 1. The exact significance of the suggestion
evades Respondent. South West Africa is not at present a province of
the Republic, and the future development envisaged for it by the Com
mission is in the direction of autonomous homelands-in other words,
not in the direction of constituting the Territory a province of the Re
public. The possibility of South West Africa as a whole ever becoming
part of the Republic would consequently appear to be remote, and Mr.
Mason's suggestion correspondingly pointless.
n5. Applicants also state:
"... the one and one-half million 'Coloureds' and half million
'Asiatics' in 'White South Africa' are denied the franchise and other
civil rights, without any pretension on Respondent's part that they
have, or will be assigned, 'reserves' or 'homelands' 2".
·Reference to the position of the Indians and Coloureds is made also
by Mr. Mason 3.Inasmuch as there are no Asiatics in South West Africa,
their position need not be considered herein. As far as the Coloureds are
concerned, Respondent has analysed the relevant portions of the Memo
rials and the Reply, and has shown that Applicants' charges relating to
the Coloureds rest on an alleged "norm of non-discrimination or non
separation ", and possibly also on an allegation that detriment is caused
to the Coloured people as a result of Respondent's alleged oppressive
policies towards the Natives 4. Applicants do not, however, in so far as
the Coloureds are concerned, make an attempt 'to support a charge, as
they do in the case of the Natives, of a process of deliberate oppression
for the benefit of the Europeans 5•Itwould therefore unnecessarily burden
the record to give a systematic review of the programmes contemplated
or already implemented for the economic, social and political upliftment
of the Coloured population of South Africa and the Territory. Suffi.ceit to
say that the Coloured population in South West Africa is found in the
southern area of the Territorv, and mainlv in the towns; that suitable
provision has been, and is being, made \vithin the European area for
their development in all the spheres mentioned above, and that although
no separate homeland is envisaged for them, an appropriate system of
political representation has been devised to assist them towards their end
destination which will provide full recognition of their rights to dignity,
justice and self-government.
1 IV, p. 330.
2 Ibid., p. 317.
3 Ibid.,p. 333.
• Vide sec. A, paras.r 1-15, supra.
5 Ibid., para. 15.312 SOUTH WEST AFRICA
n6. ln the course of his article 1 i\lL Philip Mason refers to "certajn
laws and penalties of a more serious nature" 2 which, he suggests, are·
relevant to a proper assessment "of the relationship between the Govern
ment and the majority of the people in South Africa" 2:After a discussion
of certain provisions, he concludes:
"... to fall back on such legislation indicates that something is
seriously wrong, and a Govemment in any way responsible, or even
responsive, to public opinion will try to put it right. If such legisla
tion is steadily intensified over a number of years, it surely indicates
that something is radically wrong in the relationship between the
Govermnent and a large section of the people and in the policy
which the Government wishes to follow 3."
The first point to be noted, which Mr. Mason seems to have overlooked,
is that some of the more extreme measures to which he refers are only
temporary in nature. Thus, although it is true that the Minister of Justice
may, if he is satisfied that a person serving a sentence which was imposed
for certain acts committed against the safety of the State, is likely to
advocate, advise, defend or encourage the achievement of ariy of the
objects of Communism, cause that persan to be further detained 4• This
provision came into force in 1963 and lapsed on 30 June 1964. It was
then further extended by Act of Parliament to 30 June 1965. 1t is, there
fore, essentially a temporary measure. Furthermore, it has in fact been
applied to one person only.
1r7. The provision authorizing a commissioned police officer to detain
certain persons for interrogation 5 was also i,ntended as a temporary
measure to meet a particular emergencv, and has in fact been withdrawn
by proclamation as from n January" 1965 6• Furthermore Mr. Mason
errs in saying, that "[n]o one may have access to [a pcrson detainecl in
terms ofthe said provision] without permission of the Police or Minister" 2•
In fact the section itself provided that the magistrate or an additional
or assistant magistrate of the district in which a persan was det::iined,
was obliged to visit such persan in prh,ate at lcast once a week, inter alia,
7
to hear any complaints or grievances •
u8. Mr. Mason refers further to a provision to tl;e effect that--
"... a persan who ohtains from outside the Republic any informa
tion which 'cciuld be of use in furthering the achievement of any of
the objects of Communism' and who fails to prove beyond a rcason
able doubt that he did not obtain such information for such a pur
pose, may be sentenced to death 2".
1
IV, Annex 1, pp. 328-340.
1 Ibid., p. 333.
3 Ibid .p. 334-
• Vide sec. 4 (a) of Act No. 37 of 1963. In so far as ;\Ir. Mason's paraphrasof the
section suggests that it couldbe applied in respect of a person serving a sentence for
any offence whatsoever, itis inaccurate.
5 Sec. 17 of the General Law Amendment Act No. 37 of 1963.
6 Vide Froc. Xo. R320 in Governmenl Gazette (Extraordinary No. 960), dd.
30 ::-Sov.1964.
7 Sec. 17 (2) of Act :No. 37 of 1963. REJOINDER OF SOUTH AFRICA 313
1
The provision in question in truth provides that a person to whom it is
of application, shall be guilty of the crime of sabotage. A number of
other acts or forms of conduct, of.varying seriousness, are likewise pre
scribed as constituting such crime. Thereupon penalties are prescribed in
respect of the crime of sabotage generally. As prescribed, they can also
vary from Iessserious to more serions. The penalty of death isa maximum,
which may be imposed by a court in a fit case, in its discretion. The
suggestion that a court might impose the maximum penalty on a person
convicted of one of the less serious prescribed acts of sabotage (such as
that referrcd to by Mr. Mason), is consequently quite absurd, and is an
unwarranted slur on the South African judiciary. ln fact no pcrson has
been sentenced to death purely on the ground of a contravention of any
of the provisions of the General Laws Amenrlment Acts-where such a
sentence was passed, the accused had also been convicted, after proof
beyond reasonable doubt, of murder.
119. Another incorrect statement in Mr. Mason's article is contained
in a passage by Mr. Gardiner, who states that--·
"... if anybody protests against that law [i.e., a law which discrimi
nates against non-Europeans] in a manncr which causes disorder,
that is 'communism' 2".
It is clear that Mr. Gardiner (and, for that malter, ilfr. Mason) has not
taken the ~rouble to investigate the legal position. As early as 1950 the
Sonth African Supreme Court held as follows:
"The Court granted an application by a Communist ... for the
setting aside of a prohibition ... of a certain political pamphlet ...
where it found that though certain passages were calculated inter
alia to arouse resistance to the police in the administration of the
pass and liquor laws or to engender feelings of hostility against the
Government _orits legislation, they were not calculated to engender
feelings of hostilitY. between the European section of the population
on the one hand and the non-European sections, .or one of them,
on the other 3." . .
,~0 0 C 4
This is, of course, not to say that incitement to public violence is not a
crime in South Africa, as anywhere else. But the suggestion that it must
necessarily be "communism" is absurd. ·
120. A further gross error on M.r. Mason 's part appears from the fol-
lowing words: • · ·
" ... it is not easy to see how the Ovambo cou.Idreally improve on the
General Laws5Amendment Act as an instrument for perpetuating
their rule ".
The suggestion that _Respondent's rule in South West Africa is per
petuated by the General Laws Amendment Act, is entirely fallacious. In
fact the major provisions of the two "General Laws Amendrnent Acts
referred to by Mr. Mason 6 do not apply to South West'Africa.
1 Sec. 1r (b) (ter) of the Suppression of Communism Act No. 44 of 1950, as
amended by' sec.5 ofAct No. 37 of 1963.
z IV, p. 334.
3 Vide du Plessis v. Minister of justice1950 (3) S.A. 579.
• Mr. Gardiner speaks of "in a manner which causes disorder".
6 IV, p. 337.
No. 76 of 1962 and No. 37 of 1963. SOUTH \VEST AFRICA
121. However, even paying due regard to inaccuracies, omissions and
exaggerations in Mr. Mason's article, Respondent readily acknowledges
that the legislation to which he refers is of a very drastic nature. The
immediate reason for its promulgation can be found in the activities of
1
certain terrorist organizations, to which some reference is made below .
Mr. Mason states that the recourse to such legislation "indicates that
something is seriously wrong" 2• That may indeed be conceded, but the
assumption that it ïs Respondent's policy that is wrong does not, of
course, follow. The simple fact is that the whole of Africa is in a turmoil
politically, socially and economically. The indigenous peoples have been
compelled by circumstances to adapt themselves within a bewilderingly
short while to the most radical changes in their traditional conceptions
and values. Philosophies, often not properly understood or formulated,
such as those ofcommunism, liberalism, nationalism, and anti-colonialism,
have swept the continent. Savagery and bloodshed are never far from
the surface.
South Africa has not been immune either to the loss of traditional
values by a number of Bantu, or to the philosophical or emotional
substitutes which in many cases replaced them. In particular there have
been sections of the population in which feelings of nationalism have
degenerated into an anti-White and anti-Indian terrorism, or which have
fa!len under the domination of the Communist philosophy. In many
instances these people have been instigated from abroad, and reinforced
by saboteurs trained in other countries. Terrorist movements of this type,
even if small in numbers as in South Africa, can do incalculable harm,
unless nipped in the bud. In these·circumstances drastic measures were
applied with such success that, as noted, Respondent has been able to
withdraw some of the legislation objected to by Mr. Mason.
122. Respondent fully realizes that in the long run drastic penal pro
visions cannot secure peace unless the majority of the population is
reasonably satisfied. In so far as any existing conditions may be a legiti
mate cause for dissatisfaction, Respondent's policy 2s èxactly what Mr.
l\Iason propagates, viz., to "try to put it right" .And Respondent makes
bold to say that despite all efforts to the contrary by foreign instigators
and agitators, its policies are achieving ever-increasing success in this
regard, and bringing satisfaction to the overwhelming majority of all
concerned. Indeed, the lack of success of movements like Umkonto we
Sizwe and Poqo 3 bears eloquent testimony to the fact that they repre
sented only a very small section of the population.
In a sparsely populated country like South Africa, with long and vulner
able lines of communication and power, and a large Bantu population,
many of whom are acquainted with the use of explosives by working jn
the mines, a terrorist movement enjoying wide support could only with
great difficulty, if at all, be put down, particularly since many States in
Africa have expressed their willingness and, indeed, enthusiasm, to
support such movements. Respondent is convinced, however, that such
a situation will never arise, exactly because the Bantu population as a
whole is contented, and is adapting itself to the exigencies of the modern
world without undue dislocation. This Respondent ascribes in no small
1 Vide sec. E, Chap. VI, paras. 61-63.
2 IV, p. 334.
3 Vide Chap. VI, para. 6r, infra. REJOINDER OF SOUTH AFRICA 315
measure to its policies which seek to retain as much as possible of the
traditional life of the Bantu whilst gradually initiating them into the
principles of modern political and economic life. The policy of separate
development provides an opportunity for political self-realization without
a complete break with their customs, in other words by evolution as
opposed to revolution. At the same time Respondent's policies in the
economic, educational and social spheres have resulted in a standard of
we1l-being far exceeding that in any other State in Africa.
123. The circumstances which have called forth the measures referred
to by Mr. Mason will, however, probably continue to exert their influence
for some time to corne, at least until the current political and social
revolution in Africa has abated and made way for greater stability. Until
such time the whole of Africa will probably continue to present the picture
of governments applying severe measures in order to curb revolutionary
movements, which, if any were to arise in South Africa, Respondent
confidently expects to be small and unrepresentative ones. In this con
text it is worth remembering that there exist many infringements on
persona! liberty in other States in Africa which are of a far more extensive
nature and longer duration than those in South Africa, but which have
nevertheless often been Jess successful 1.
124. In the course of his article, Mr. Mason seeks to explain the reasons
for "the offensiveness to much of the world of the policy of separate
development" 2• In keeping with the nature of his subject he seems to
have given vent to feelings of indignation, to the detriment of logic and
accuracy. Thus he commences by saying that in the White area-
"... which is much the greater part of the country and the area of
chief opportunity, the two principal races should continue to exist
but that in that area the White race, although even there a minority,
should be by Jaw permanently superior and the other permanently
inferior-and that every individual belonging to the latter should
be reminded of the inferiority by constant humiliation 2".
This passage contains a number of wrong assumptions or assertions.
Firstly, why should Mr. Masan imagine that the White population will
always remain a minority in the White area? If the recommendations of
the Odendaal Commission wCre to be implemented, there would not only
be an appreciable increase of land for the non-White groups at present
living in the Police Zone, but Yarious development plans would enable a
far greater portion of them to earn a living in their own homelands.
Secondly, Respondent disputes that non-Whites in the Police Zone are
by law inferior-the provisions that apply only to non-Europeans are
necessary in the interests of ail the inhabitants, including particularly the
non-Europeans themselves, and do not connote inferiority or any constant
humiliation. Thirdly, as has been seen, i\Ir. Mason is not entitled to
assume that these provisions will remain unaltered for cver 3• Fourthly,
why should he assume that, despite the various ambitious plans for de
velopment of the homelands, opportunities for non-Europeans would not
in due course there become as great as, or greater than in the European
area?
1 Vide Chap. III, sitpra.
2 IV, p.338.
3 Vide paras. ro6-108, supra.JIO SOUTH WEST AFRICA
125. Mr. Mason then proceeds to consider further alleged deficiencies
in the policy of separate development, and suggests that this policy
prevents the inhabitants of South· West Africa from "belonging to a
group big enough to exercise sovereignty and to be represented abroad'' 1.
The reasoning in support of this allegation is as follows: .·.·
"To split up half a rniUion people into twelve groups and en
courage them in separatism is in the long run the surest way to bar
them from the self-realisation that they seek 1."
The basic fallacy underlying this passage has repeatedly been refuted
by Respondent. It does not split up the pe_opleinto I2 groups, but merely
refrains from forcing the 12 existmg groups together. At the same tirne
Respondent does not place any impediment in the way 9f any of these
groups eventually amalgamating or federating should they so wish.
Perhaps realizing that the above argument is not particularly con
vincing, Mr. Mason immediately jumps back to the note on which he
started. Thus he says that separate developtnent involves keeping the
non-Europeans "... at ann's length in remote parts of the country and
only [admitting them] to the area of progress under a cloud of humiliating
restrictions" 1•
If one disregards the tendentious language it becomes clear that this is
pure repetition. It suffi.ces to say therefore that Respondent does not
appreciate the significance of the expression "at arm's length in re~ote
parts of the country"; that most of the proposed homelands have greater
development potential than the greater part of the European area, and
that the restrictions are neither humiliating nor necessarily permanent.
126. l\fr. Mason then proceeds to cons~der the effect of the àdmitted
differences in the stages of development reached by the various groups in
the Territory. _Withreference hereto he says:
"... the aspect of South African thought which is widely questioned
elsewhere is the assumption that .an individual is pennanently
limited by the limitations of his group 1".
It is diffi.cult to understand, where Mr. Mason received the impression
that such an assumption exists. Respondent is fully aware that even at
present there are many individuals among the various Native grouP.s in
the Territory who stand out above others by reason of higher ab1lity,
education or the like, and that the general standards both of the groups
as a whole and of the exceptional individuals will continue to rise. One
of the reasons for the policy of separate development is that it will provide
opportunities for such people to realize their full capacities. Indeed, the
whole homelands scheme as well as various development projects will
require the services of a considerable number of educated Native men
and women who possess qualities of ability and leadership. It is the
realization that such persons are or will become available that has, inter
alia, influenced Respondent in its view that the time is ripe for accelerated
development of the Territory. Consequently the dispute between Ap-
plicants and Mr. Mason on the one hand, and Respondent on the other,
reJates not to the question whether there exist individuals who transcend
the average standards of their groups, but to the totally different en
quiry as to what type of opportunities should be created for such individ-
1 IV, p. 339· REJOINDER OF SOUTH AFRICA
317
uals, i.e., whether such opportunities should be within a potentially
integrated society, or, on the other hand, within the individuals' own
group. As has been seen, acceptance of the latter view in no way implies
a denial of the existence of exceptionally advanced individuals, but in
deed results in the creation of special openings for them.
127. Proceeding from the premise that South African thought rests on
the assumption that an individual is permanently limited by the limita
tions of his group, Mr. Masan continues:
"... to say that by law people of one group must mix with no others
can really only proceed from a conviction not only that the other
groups are inferior but that every member of each of the other groups
isperrnanently and irremediably inferior 1".
Respondent is at a loss to know what law is referred to which allegedly
prohibits people of one group from mixing with any others 2•Indeed, this
passage seems to Respondent to contain a somewhat reckless indulgence
in loose and exaggerated language, apparently with a view to creating a
greater emotional impact.
128. Mr. Masan then proceeds to refer to the "separate but equal"
doctrine 1.This is a doctrine which arose in the United States of America
as a result of the legal and social position existing there, in particular as
a means of reconciling separatc or segregated facilities for Negroes and
Whites with the requirernent of "equal protection of the laws" laid down
by the 15th Amendment to the Constitution 3, As is the position with
most theories, principlcs or policies regarding race relations in the United
States, the vastly different circumstances in South West Africa require
the greatest caution in applying it to the Territory. ln the ftrst place,
there is no constitutional requirement of "equal protection of the laws".
Secondly, the factual situation differs vitally. As regards the legal situa
tion, the Manda tory was in some respects required, and in others expected,
to differen4iate in its treatment of different population groups and their
members • In such a context there could hardly be room for a technical
concept of "legal equality". In the light of the l\fandatory's obligation to
promote the well-being and progress of all, it could probably be said to
be obliged to apply a broad, factual concept of equality, in the sense that
there was to be no unfair discrimination against or in favour of any group,
or its members: but a more exact kind of equality, at ail times and under
all circumstances, was not, and could not realistically have becn, imposed
as a requirement. Nor could it be capable of achievement as far as the
factual situation was concerned. ln particular, the important differences
amongst the inhabitants of the Territory as regards type and level of
civilization, and the resultant different needs and capaciües of the various
groups, have inevitably resulted in certain things pertaining to some
groups in fact not being equal. The same considerations resulted in
separation necessarily_being imposed by the most advanced group rather
than happening by agreement. In this regard Respondent would recall
that Mr. Mason himself in an earlier work recognized the need for barriers
1 IV, p. 339.
2 Vide Chap. IX, para. 4, infra, where this matter is furtherconsidered.
l Vide Chap. XI, para. II, infra.
• Vide Part C, sec. II, supra. SOUTH WEST AFRICA
between· relatively advanced and relatively undeveloped groups 1•
Separation between groups does not, however, mean that individuals arc
not able, on due advancement, to be the equals of the best in any other
group. Indeed, separate development may expedite the advancement of
individuals by protecting them not only against social phenomena such
as racial prejudice, but also against competition by members of the more
advanced groups. Examples of individuals among the non-Europeans in
South Africa or South West Africa who have attained the highest ranks
would include the Transkei Cabinet, who control a substantial civil
service, including high European officials; professors at university
institutions such as Fort Hare or Turfloop, etc.
129. In the preceding paragraphs Respondent has analysed the reasons
set forth by Mr. Mason for "the offensiveness ... of the policy of separate
development" 2• Respondent has, it is submitted, shown that the reasons
addùced by Mr. Mason are either imaginary or insubstantial. In con
clusion Respondent would suggest that an attack of this sort would carry
greater conviction if solidly based on realities rather than on a combination
of phantasy and emotionally charged language.
130. After stating his reasons for regarding separate development as
offensive, Mr. Mason concludes:
"These are some reasons why it will be hard to find natives of
Africa who believe that to extend the policy of separate development
to South West Africa even more completely than at present is in the
interest of any but the White inhabitants 3."
What Natives of Africa will or will not believe, is clearly an irrelevant
issue in the present proceedings. This Court, it is respectfully submitted,
is concerned only. with the judicial duty of ascertaining the facts and
determining their legal consequences. The incredulity, suspicion or
antagonism of Natives of Africa has no bearing on judicial proceedings,
as distinct, possibly, from international political activity.
13r. In the Working Paper, Annex 2 to the Reply, it is said that "[t]he
Odendaal Commission recommended a five-year development plan at an
estimated cost of R114,512,485 ... ".
The United Nations Secretariat must either be very slipshod in their
work, or else they deliberately attempt to minimize the extent of the
five-year plan. In fact the figure mentioned by them reflects only the
estimated amount of loan funds to be provided directly or indirectly
by the South Afrîcan Government 4.In the very same paragraph in which
the Odendaal Commission mentioned the above figure, it continued:
"In addition thereto the ... net shortfaJJ of R4r,401,n9 will also
have to be funded from South African sources. Therefore the total
commitment of the Government of the Republic of South Africa and
other State undertakings such as the South African Railways and
Harbours for the five-year period will amount to R156,401,n9 4."
Consequently, the total amount to be provided by the South African
Government towards the five-year plan will alone amount to over
1 Vide para. ro6, supra.
2 IV, p.338.
3 Ibid.,p. 339.
• R.P. No. 12/1964, p. 481 (para.1509). IŒJOIXDER OF SOUTH AFRIC.-\ 319
R156 million 1. However, even this figure does not represent the "cost"
o!:the five-year plan, but merely Respondent's contribution thereto. To
this must consequently be added amounts to be made available from the
revenue of South West Africa itself 2•
132. Annex 3 to the Reply (an extract from the rg63 report of the
United Nations Special Committee on the Policies of Apartheid of the
Govemment of the Republic of South ACrica) contains a nurnber of
misrepresentations or errors. Sorne of these have already been dealt with,
and others do not merit refutation. The remaining ones will be considered
in this and the succeeding paragraphs.
The Committee refers to "a series of laws to outlaw all social inter
3
course between the racial groups" • This is a completely incorrect state
ment. No such laws exist.
Referring to provisions such as the Bantu Authorities Act of 195r and
the Bantu Education Act of 1953, the Committee says: "Each of these
measures increased tension in the country and could only be imposed by
force 3."
The Committee states further that the establishment of Bantu au
thorities "was 'accompanied by Government threats, by murder, violence,
arson, tribal revolt and severe police action' " 3,and that "the Govem
ment has resorted to threats to eut off financial assistance and discontinue
necessary social services. has deported leaders, and imposed chiefs and
headmen who are willing to go along with the Government in retum for
promotions""· More particularly Applicants allege dissatisfaction in
Tembuland, Sekhukhuneland and East Pondoland 5•
The picture thus painted by the Committee is completely untroe.
Before the establishment of Bantu authorities the fullest ex:planation and
consultation takes place with the people concerned. Respondent refers to
what has already been stated in this regard 6.In the Transkei (which in
dudes two of the areas specifi.cally mentioned by the Committee, viz.,
Ternbuland and East Pondoland) the introduction of Bantu authorities
took a different course than elsewhere. The Bantu Authorities Act did
not originally apply to this territory, but the General Council representing
the Bantu of the area unanimously decided in 1955 to ask for the intro
duction of the system of Bantu authorities. This request was acceded to.
Under its present constitution the Transkei possesses full power to dis
establish or abolish Bantu authorities, but it has taken no steps in that
direction. lt is apparent therefore that the Bantu generally are in favour
of the Bantu authorities. Respondent emphatically denies that it bas ever
made use of any type of threat, or violence, or has imposed the system on
any section of the Ban tu.
133. Although it is true that there was some dissatisfaction or violence
in Tembuland, Sekhukhuneland and East Pondoland, the reason was not
the introduction of Bantu authorities as such. The division of Tembuland
has a long history and Respondent does not propose detailing it here,
save to deny that the people objected thereto. In the other areas, one
1Vide also article ùy Philip l\fason in IV, p. 330.
2 Vide: IV, p. 216.
J Ibid., p. 352.
4 Ibid., p. 353.
' Ibid., pp. 352-353. Vide in this regard also Annex 4, IV, p. 361.
~ Vi,fo para. 67,supra. SOUTH WEST AFRICA
320
reason for dissension was that trouble-makers misrepresented the s\·stem
of Bantu authorities as necessarily being a precursor of Government
schemes for agrarian reform. These schemes, which involve the erection
of grazing camps for rotational grazing, contour ploughing, stock culling,
etc., are unpopular with some tradition-bound tribal agnculturists, and
are for that reason not introduced except upon a voluntary basis. In some
of the above areas agitators took advantage of the ignorance of the un
sophisticated farmers to provoke rioting and disorder. In one or two areas
there was also dissatisfaction as a result of mistakes in regard to the
membership and constitution of the tribal authorities. When the mis
understandings and errors were rectified, dissatisfaction died down.
Respondent wishes to emphasize that the type of trouble referred to
above affected a small proportion of the population in a few areas, and
that despite the activities of agitators, the establishment of the over
whelming majority of the more than 500 Bantu authorities was accom
panied by general satisfaction and co-operation.
r34. In dealing with the Promotion of Bantu Self-Govemment Act,
the Committee states:
''During the debates in Parliament. Dr. Verwoerd said that the
Govemment's scheme would lead to a permanent White South
Africa, and that unless it was accepted, the only other choice was a
common multi-racial country where the Whites would be outnum
bered by the Blacks three or four to one 1."
As has been noted in connection with similar statements made by
Applicants 2,this paraphrase is apt to be misleading. The "White South
Africa" to which reference is made, is of course the European areas of
the country. Reading the Prime Minister's speech renders it clear that
he did not, as appears to be suggested by the Committee, convey that
South Africa as a whole would be under the permanent domination of the
White group, but merely that the policy of separate devclopment would
provide a homeland for each of the groups, including the White group 3•
lndeed, the passage which is apparently the one referred to by the
Committee, reads as foHows:
"... if the possibility of having separate territories as an eventual
settlement of political aims is not possible ... Nothing else is
possible but a common South Africa, a rnulti-racial country, although
numerically the Bantu will outnumber the Whites three or four
times. Then I say again that ... I choose an assured White state in
South Africa whatever happens to the other areas, rather than to
have my people absorbed in one integrated state in which the Bantu
must eventually dominate 4."
135. The Committee proceeds to say: "A{rican leaders opposed this
measure as a further denial of their rights 1." The onlv "leader" quoted
is ex-Chief Albert Luthuli 5•Respondent is fully awaré that Mr. Luthuli
opposed the measure, but does not accept that he is qualified to speak on
1 IV, p.353.
i Vide para. 8,supra.
• Vide U. of S.A. Parl. Deb., House of AssemblyVol. 101 (1959).Cols.6214-624 1.
5 Ibid., Col.6223.
Vide Chap. VI. para. 61, infra, for lurther informationabout Mr. Luthuli. REJOIXDER OF SOUTH AFRIC.-\ 321
behalf of the Bantu people of South Africa. Elsewhere in this Rejoinder 1
Respondent shows the nature and extent of Mr. Luthuli's influence, as
also the substantial support which Respondent's policies enjoy among
the Bantu people.
136. The Committee's discussion of the Transkei Constitution Act
also bristles with misrepresentations and inaccuracies. Thus it is said:
"During the discussions which followed between the Government
and the representative [sic] of the Bunga it was reported that the
Government had indicated that it could not entertain any requests
for greater powers than had been offered ... 2"
This is completely false. Verbatim reports exist of the discussions in
connection with the report of the Recess Committee of the Transkei
Territorial Authority (the body which drafted the constitution) 3, and
nowhere was any such indication given by the Govemment. On the
contrarv, before the Recess Comm1ttee commenced its deliberations,
manv of the leaders who wcre members of the Committee saw the South
African Prime Minister, and he suggested greater powers for the Transkei
than they in fact proposed to ask for. The leaders gladly accepted this
suggestion and the recommendations of the Recess Committee included
these greater powers. It can also be stated that there was complete agree
ment between the Recess Committee and the Govemment officiais as
to what fonctions and powers should be handed over to the Transkeian
Govemment in the beginning, and also that further powers should be
handed over progressively "as the organization of each Department
becomes sufficiently developed to carry the additional burdens" 4.Indeed,
a comparison of the Recess Committee report with the Transkei Consti
tution Act 5will confirm the fact that ail the powers and fonctions asked
for by the Recess Committee were in fact granted to the Transkeian
Government.
137. The said Committee States that it was also reported that the
Govemment had indicated "that the Transkei Parliament should consist
of Chiefs as well as elected representatives" 2•
In fact the true position is that the Govemment insisted from the
beginning on the inclusion of elected members 6•The Recess Committee
then drafted a constitution making provision for a parliament of 64
chiefs and 30 elected representatives. During an interview between the
Recess Committee and the Prime Minister, the latter suggested that larger
representation should be given to representatives elected by the people. This
suggestion was adopted, the Recess Committee resolving that the number
of electcd members should be increascd to 45 7• At no stage did the
Government insist on the inclusion of any Chiefs in the Transkei Parlia
ment.
138. The Committee also states as follows:
1 Viàe Chap. VI, para. 61, et seq.
2 IV, p. 354.
1 Il, pp. 478--.79.
• Transkeian Territorial A uthorityProceedings and Reports ot"Select Commit-
tees at the Session o1962, p. lviii.
s Act Xo. 48 of 1963, First Schedule.
6 Vide II, p.480.
7
R. o/ S.A. Pari. Deb., House of Assembly,Vol. 3 (1962), Col. 5264. SOUTH WEST AFRICA
322
"Serious differences among the Chiefs and people of the area were
soon reported in the press. A number of cases of violence in the
territory during 1962-1963 were attributed to opponents of the
Govemment'sscheme 1."
These allegations are completely unfounded. Probably much to the
apartheid committee's disappointment, the whole Transkei was cairn and
peaceful throughout the period since negotiations were started in connec
tion with self-government, during the passing of the Act, the voters'
registration and election campaigns, the election of the Cabinet, the
establishment of the Govemment and right up to the present. As will be
shown, the people of the Transkei participated in ail these events with
enthusiasm.
139. Regarding the powers of the Transkei Parliament, the Committee
states, inter alia:
"The powers and fonctions of paramount chiefs, chiefs and head
men are not superseded by the establishment of the Legislative
Assembly. however. The latter is not entirely competent in the
restricted area of its jurisdiction because tribal authorities retain
2
their original powers in certain areas ."
This statement also is not correct. The Constitution Act 3 provides that
the powers, authorities and fonctions of Bantu authorities shall be and
remain in force until varied or withdrawn by the Legislative Assembly.
140. The Committee says: "Umtata, the largest town in the Transkei,
will be the seat of govemment. The State will have no capital as Umtata
is a White area 4."
It is in the hands of the Transkeian Government to determine which
town is to become the capital of the territory. Its choice may well fall on
Umtata, which is the present seat of the Government. ln this regard it is
to be noted that it is govemment policy that all towns in the Transkei
should eventually be in the possession of the Bantu population and that
this process is already under way. ·
141. The Committee concludes its report with a number of wild and
exaggerated criticisms 5• In so far as these points warrant any discussion
at all, they are dealt with in earlier Parts of this Rejoinder. The criticism
includes the irresponsible statement that "the 'Bantustans' were not
6
demanded by African leaders but were imposed against their wishes" •
As has been shown 7, this statement is completely false. No authority
therefor is quoted, and its inclusion in the Committee's report once more
demonstrates that no reliance can be placed on any allegation contained
therein.
142. In its next report, i.e., that of 1g64, extracts from which appear
in Annex 4 to the Reply, the Committee maintained the sa.me low
standard of accuracy and impartiality. Almost at the very outset the
report commences by saying that in the Transkeian elections "political
1 IV, p. 354-
2 Ibid., p. 355.
3 Sec.46.
4 IV,p. 356.
1 Ibid .. pp. 356-358.
6 Ibid.,p.357-
7 Vide paras. 67-84, supra. REJOINDER OF SOUTH AFRICA 323
parties were not allowed" 1. This is a complete fabrication. Repeated
reference is also made in the report to Paramount Chief Victor Poto's
alleged rnulti-racial ideals. Attention is, however, invited to a later
discussion in this Rejoinder 2 of some of his pronouncements, and, inter
alia, his statement in the Legislative Assembly that-
"... the white people who should corne here are those who will be
willing to be under the govemrnent we propose to set up in the
Transkei, a government that will always be in the hands of the black
man 2". (Italics added.)
143. The picture painted by the Comrnittee 3 of the course of the
elections in the Transkei is so completely distortcd as hardly to warrant
any reply. The Committee refers to a Liberal Party publication 4• This
party exerted every effort to render the Transkeian elections a failure,
employing rnethods which are not relevant to the issues in these pro
ceedings.
In fact, the people of the Territory took enthusiastically to the ex
perirnent of the elections. In this regard it is necessary rnerely to quote the
judgment of a person who iscertainlynot well-disposedeitherto Respond
ent or to its Transkei policy, viz., Mr. Christopher R. Hill, Deputy
Director of the Institute of Race Relations, London. He writes:
''In the Transkei, the election campaign seems to have gone
smoothly though the circumstances were extraordinary in that rnost
of the ernergency regulations irnposed during the Pondoland disturb
ances of 1960 were still in force. These measures forbid, inter alia,
meetings of more than ten Africans without permission, but in
fact permission was freely given 5." (Footnote omitted.)
The South African Institute of Race Relations published an estirnate
that 90 percent. or more of those eligible to vote, both within the Transkei
6
and outside, registered as voters • A total of 6o6,322votes were cast in
the elections representing 68.8 per cent. of those registered, whereas a
further 28,966votes (3.3 percent. of those registered) were spoilt.
Considering the difficultics involved in holding elections for the first
time in an area with a considerable proportion of illiterate voters, it is
submitted that these results dispel any suggestion of lack of interest
arnong the Bantu 7•
144. Another staternent by the Committee is the following:
"Despite the clear evidence of the Govemment's support for Chief
Matanzima, nearly thirty-five of the forty-five elected seats were
' IV, p. 359.
2 Vide Chap. VI, para. 6,l, infra.
3 IV, pp. 360-361.
• Ibid., p.360.
5 Hill, C. R., Bantus/ans: The Fragmentation of South Africa (1964), pp. 71-72.
6 South African lnstitute of Race Relations, A Survey of Race Relations in South
A/rica I963 (1964). compiled by Muriel Horrell, p. 96.
7 It also belies the suggestionthat persons of the type rnentioned in the Liberal
Party publication, at IV, p. 364, were leaders or "crearn" with any substantial
support. Their activities were of the nature mentioned in para. 121, supra, and,
three of them (Mandela, Sisulu and Mbeki) were convicted in the R.ivonia trial:
vide Chap. VI. para. 61, infra.324 SOUTH WEST AFRICA
won by supporters of Paramount Chief Poto. This was widely inter
preted as a repudiation of apartheid by the Xhosa people 1.''
Firstly, there was no "evidence of the Govemment's support for Chief
Matanzima". The Govemment remained completely impartial in the
elections. Secondly, it is impossible to determine to what extent the
voters were influenced by political programmes (which were in any event
not dearly formulated as at the stage of the elections) and to what extent
by parochial or personal considerations. Only time can tell which of the
parties in fact enjoys the greater popular support, and even then it would
be erroneous to contend that Chief Poto is "against apartheid" or Chief
Matanzima "for apartheid". An examination of their policies shows that
both to a greater or lesser extent eut across the issues on which European
political parties take sides. Chief Matanzima does support the major
Iines of the policy of separate development, but Chief Poto also is not
entirely opposed to them.
iIV, p. 361. CHAPTER VI
JUDGMENTS OF QUALIFIED PERSONS WITH FIRST-HAND
KNOWLEDGE OF SOUTH AFRICA AND SOUTH WEST AFRICA
A. lntroductory
I. As has been noted above 1, one of the catogories of "relevant
evidence" introduced by Applicants in an attempt at showing "that
Respondent's policy and practice of apartheid fails to promote the well
being and social progress of the inhabitants of the Territory" 2.consists of
what Applicants call "Judgments of qualified persons with first-hand
knowledge of South Africa and South West Africa" . The material
advanced by them under this head predominantly comprises opinions
expressed by persons who, it is alleged, "by reason of South African
origin or long residence there, indubitably possess 'first-hand knowledge
ofthe situation' there, as well as in South West Africa" 3•
Respondent is not quite sure what point is sought to be made by the
introduction of such "evidence". In the first place, much of this evidence
has no bearing on the basic principles of the policy of separate develop
ment or apartheid, but consists inerely of criticism of particular actions
or measures which are, if relevant at ail, only incidcntal to fundamc>ntal
aspects of poliey. In some cases, such criticism in fact derives from staunch
supporters of the principle of separate development, who merely express
dissatisfaction at some aspect of its application, or some aspect of policy
unrelated to such principle. ln many instances the criticism relates to
measures or aspects of policy which do not apply to South West Africa
at ail. In other instances it relates to circumstances or measures which
have in the meantime altered fundamentally, or it is bascd on wrong facts
or assumptions. ·
2. But even in so far as such "evidence" relates to basic principles of
the policy of "separate developmcnt" as applied in South West Africa,
Respondent does not appreciatc its significance. Respondent has indicated
above 4that "evidence" can be of no assistance to Applicants if it demon
strates only that some modern commentators differ from Respondent on
the question of the best method for promoting well-being and progress,
since Applicants can succeed onlv by establishing that there is no scope
for honest difference of opinion regarding the alleged demerits of Respond
ent's policy. In this regard, Respondent has already indicated in the
Counter-Memorial that there is considerable scope for difference of
opinion, and in so far as Applicants attempt to establish the contrary by
means of this "evidence", the matter is further dealt with herein.
3. lt must immediately be obvions that Applicants cannot hope to
establish the existence of a gcneral consensus of opinion amongst South
1 Vide Chap. 1, para. 3, supra.
2 IV,p. 277.
3 Ibid .. pp. 277-278.The two "authorities cited by Respondent" (ibid., pp.
2 78-280) will be dealt with in Chap. VII, paras. 40-41, infra.
• Vide sec. C, para. 39, supra. SOUTH WEST AI'RICA
Africans that the policy of their Government is wrong, particularly not
where the Government, as will be shown 1, has emerged from every
general election since 1948 with increased strength. Nevertheless it almost
appears as if Applicants do essay some such attempt. They make the bold
daim that their quotations (which are, without exception, critical of some
or other aspect of government policy) represent "a fairly selected cross
section of evaluations of apartheid" 2• That this daim is false to the point
of dishonesty will be demonstrated in the following exposition of the main
currents of thought in South Africa regarding relations between the
various ethnie groups in the country, an exposition that wiH disclose a
wide variety of views, a great body of \vhich is favourable to Respondent.
This divergence of views is a natural result of the facts that the prob
lems inherent in group relations are not only extremely complicated, but
also affect the future of every man, woman and child in the country.
Consequently these problems have aroused much thought, deep soul
searching and vigorous debate amongst all sections and classes of the
population. However, in every sphere of life touched upon by Applicants
m presenting their "Judgments of qualified pèrsons'' there exists support
varying between substantial and overwhelming, for the policy of separate
development, which point of view is nevertheless not represented at all in
Applica~ts' "cross-section of eval1;1~tions". A !urther important aspect
wh1ch w1ll appear from the exposit10n below 1s that the opponehts of
separate development are themselves completely divided on the issue as
to what would constitute a preferable policy. It is beyond doubt, as will
be seen, that many opponents of go,·ernment policy woilld nevertheless
far prefer this policy to the alternatives proposed by some of their fellow
opponents (and in particular, the alternative proposed by Applicants) 3•
4. The following discussion of trends of thought in South Africa, and
the parties, organizations and persans propagating them, will also serve
as a setting within which to evaluate the p~rsons and passages quoted in
the Reply 4. Respondent does not propose to deal separately with every
person and every point of criticism raised in this part of Applicants'
argument. After the general survey of currents of opinion, which will
serve to place Applicants' authori ties in their proper perspective, Respond
en t will, however, devote verv brief attention to the substance of the
criticism voiced by them. ·
B. Political Parties and Policies in South Africa
5. Since 1948 the governing party in South Africa has been the
National Party. Its policy of separate development has been described in
broad outline in the Counter,Memorial 5 and certain aspects thereof have
been elaborated herein 6• lt will consequently not be necessary to give a
further exposition of its policies here.
The major opposition party in Parliament is the United Party. The
number of seats held in the Hanse of Assembly (i.e., the elected, Lower
1 Vide para. 5, infra.
1
3 IV, p.277.
/bid., p44 r.
• Ibid., pp.280 ff. and 493 ff.
' Il, pp. 457-488.
6 Vide Chaps. IV and V, supra. REJOINDER OF SOUTH AFRlCA 327
House of Parliament) by each of thesc parties in the years since 1948 is
indicatcd in the following table 1:
Year of Number oj seals held Number of seals held
e/ection by the United Parly by the National Parly
1948 65 70
1953 -
57 94
1958 53 103
1961 49 105
A similar pattern is noticeable in South West Africa where the United
South West Africa Party (U.N.S.W.P., with a similar policy to the United
Party in South Africa} and the National Party (with the same policy as
the National Party in South Africa) are the two major parties. Since 1948
the U.N.S. W.P. has lost ground rapidly whilst the National Party's sup
port has increased considerably, as is clear from the following table:
SEATS HELD IN LEGISLATIVE ASSEMBLY
U.N.S.WP. N.P.
1948 15 3
1950 3 15
1955 2 16
1961 2 16
1964 (by-election) 1 17
Jfit is further taken into account that the six elected representatives of
South West Africa in the House of Assembly of the Republic of South
Africa have ever since the first elections (1950), been supporters of the
present Government, it is clear that the vast majority of the voters in
South West Africa as in South Africa support the policy of scparate
development.
6. The United Party policy, which has undergone a number of succes
sive adaptations since the party went into opposition in 1948, was set out
comprehensively in a recent article by the leader of the Party, Sir de
Villiers Graaff • He commenced by defining the essence of the problem as
follows:
"How can several races at different stages of development, with
the most advanced of them a minority, live together in one State so
that justice is done to ail, and so that they can ail share in the
processes of democracy?
How can that be done $0that civilised standards, and that set of
values known as the Western way of life, are not swamped by
primitive majorities and lost to ail of us?"
The United Party solution for these problems is, as regards political
rights, founded on a concept of "Race Federation", the basic elements of
which were stated as follows:
• Slale of South AfricaYear Book I962: Economie, Financialand Statistical
Year-Book for the Republicof South Africa, pp. 43 and 46-47.
2 Stmday Times, 7 Apr. 1963. SOUTH WEST AFRICA
"The race·groups which make up the population of the Republic
will have the widest possible measure of communal government,
especially in such matters as education, cultural affairs, local
govemment and certain matters of public health.
A communal council for each race will control those affairs, some
of which I have already mentioned, which intimately affect that race.
Communal councils will also be established for areas like the Transkei
or for a grouping of smaller Native Reserves.
Matters which cannot be separately controlled by each race, such
as making roads and bridges, or the supply of electricity and water
resources, will be the responsibility of a joint board representative
of the communal councils concemed, or directlv of the Federal
Government. ,
The powers given to each communal council would not necessarily
all be the same. They will depend on the stage of development
reached by each race 1."
The representatives of the various groups in the federal parliament
would be Europeans, and the European group would have a majority of
representatives. One of the five fondamental principles of the Party is
that-
"[i]n the interests of both our White and our non-White peoples,
the leadership of the Whites is needed in South Africa for the well
being and the advancement of all 1".
Influx control would be maintained but reformed, and a permanently
settled Bantu population established in their own townships adjacent to
the cities.
7. One more opposition party is represented in Parliament, viz., the
Progressive Party. This party came into existence in 1959 after a schism
in the United Party, and was then represented in the House of Assembly
by II former United Party members 2• In a general election in r96r, the
Progressive Party retained only one of its seats. In 1962 it failed to defeat
a single one of the 15 United Party candidates it opposed in the Johan
nesburg municipal elections.
8. The Pr~gressive Party advocates a non-racial franchise with a
double roll, ..each being subject to different educational, income or
property qualifications. Its reasons for opposing the one man, one vote,
cry have been officially stated as follows:
"The Progressive Party rejected the principle of universal
franchise because the three conditions necessarv to rnake it work
were absent in South Africa. ,
These conditions were: an integrated or homogeneous com
muni.ty, a certain degree of political maturity among the people and
universal or near universal eduction.
ln a country where these three conditions were fulfilled, universal
franchise was an ideal system.
In South Africa we have anything but an integrated or homoge
neous society-there are very strong communal feelings which must
be taken into account, whether we like it or not.
t Sunday Times, 7 April 1963.
2 The year 1955 at IV, p. 286 is wrong-should be 1959. REJOIXDER OF SOUTH AFRICA 329
.Further, a large percentage of the population, through no fault of
its own, was politically immature and there was no system of uni
versai education.
The Progressive Party's qualified franchise and double roll was
the best way of making democracy succeed with an immature
electorate 1." · - . _
The Progressive Party also proposes protecting minority rights by way
of certain constitutional provisions and safeguards 2•
9. Reference should be made to one other political party, viz., the
Liberal Party. It was founded in 1953, also after a split in the United
Party, and at first advocated· a non-racial qualified franchise. In. the
course of time it became more radical, and at present propagates the im
mediate introduction of universal adult franchise. No Liberal Party can
didate has ever succeeded in a White constituency, and frequently candi
dates have lost their electoral deposits by polling less than one-fifth of the
total of votes cast for ail candidates in the constituency concerned. It is
difficult to assessthe extent of support enjoyed by the party among non
Whites, since membership figures are not kept by race. At its 196! Con
gress, a majority of delegates and observers was Bantu. Although the
leading positions in 1962 were still held by Whites, one of the three vice
presidents and the national treasurer were Bantu 3•
10. To summarize, the following general observations may be made:
(a) Both the major political parties in South Africa, viz., the National
Party and the United Party, recognize the necessity of differentiating
between the various population groups in the country. Whereas the
National Party policy for separate development envisages ultimate
self-determination for the various Bantu groups in their own areas,
the United Party contemp\ates a federation between the races
within one geographical area.
(b) The only one of the above four parties which advocates the im
mediate introduction of universal adult suffrage, is the Liberal
Party, which has made no mentionable impact on the electorate.
(c) The Progressive Party, with its policy of a qualified non-racial
suffrage and constitutional guarantees for minorities, appears to be
losing such limited support as it formerly had.
IL It is important to note the extent to which the political climate in
South Africa has been affected by the development in government policy
announced by .the Prime Minister in 1959 when he stated unequivocally
the acceptance. of independence for the separate Bantu states as an
4
attainable end rcsult •Later in the same year there occurred the split in
the United Party which heralded the birth of the Progressives. lt is
significant that the immediate cause of the split was an issue (the desira
bility of purchasing further land for reserves) which had gained increased
importance bv reason of the Prime Minister's announcement. The reaction
of the United Party came in the form of its Race Federation policy. And
1 Quoted in Marais, B., The two faces of Africa(1964), pp. 6o-6r.
2 Safeguarding Your Future: The Principles and Policies of the ProgressiveParty
of South Africa, pp. 5-13.
3
Carter, G. M. (Ed.), Five African States: Responses ta Diversity (r964), p. 533.
• II, pp. 465-466.330 SOUTH WEST AFRICA
reference was made above to the recent changes of policy and emphasis
in the Liberal Party 1•
rz. 1t is against the above background that the significance of the
2
"fairly selected cross.section of evaluations of apartheid" by "political
leaders" 3 of the " 'White' South Africans" 4 can be assessed. The "poli
ticalleaders" quoted by Applicants are Mr. Donald Molteno, Q.C. 5,Dr.
Bernard Friedman 5, l\lr.J. D. du P. Basson 6, Mrs. Helen Suzman 7 and
8
l\lrs. Margaret Ballinger • This list contains no member or supporter of
the goveming National Party, only one member (l\lr. Basson) of the
major opposition party, viz., the United Party, three members of the
Progressive Party (Dr. Friedman, Mrs. Suzman and Mr. Molteno)
including its one and only representative in Parliament (l\Irs. Suzman),
and one member of the Liberal Party (Mrs. Ballinger). Applicants'
cross-section of political leaders is therefore confined to members of
opposition parties, with an excessive Joading of small splinter parties
which lie to the extreme left of the political spectrum and do not possess
any substantial support from the electorate.
In passing it may be noted that in no case have Applicants even quoted
the leader of the particular party in question (at least not under the
heading "Political Leaders").
13. As appears from the above exposition, not only do the "Political
Leaders" represent a minority of the electorate, but the main (if not the
only) feature common to the policies advocated by them, is their oppo
sition to the National Party. At most therefore they establish that there
exist currents of opinion in South Africa which are vigorously critical of
National Party policy, and which openly and strenuously propagate a
number of widely different policies, each of whkh is considered by its
9
adherents to be preferable to the one adopted by the Government •
This is admittedly a situation which, although unusual in the rest of
Africa, where the one-party State tends to be the rule 1, obtains in South
Africa. lt is submitted, however, that such differences of opinion do not
establish either that Respondent's policy faits to promote well-being and
progress in South Africa or in South West Africa, or that its policy is not
bona fide directed towards such promotion.
14. It is also interesting to note that al! the "political leaders" quoted
by Applicants have changed their political affiliations in the course of
their careers. This is obvious in the case of the members of the Progressive
or Liberal Parties, who were ail active in politics long before their present
parties came into existence. It is, however, also true of Mr. Basson, the
single representative of the United Party quoted by Applicants. He was
formerly an organizer for the U.N.S.W.P. 11in South West Africa. There.
1 Vide para. 9, supra.
2 IV, p. 277.
3 Heading at IV, p. 286.
• Reading at ibid., p. 280.
5 IV, p. 286.
6 Ibid.,p. 287.
7 Ibid., p.496.
8
9 Ibid.,p. 497.
Only one of which accords with the policy suggested for South \Vest Africa by
Applicants.
10 Vide Chap. III, paras. 9·10, supra.
11 As to which, vide para. 5, supra. REJOINDER OF SOUTH AFRICA 331
after he _ioinedthe National Party, which he represented in Parliament.
In 1961 he founded, with the retired Chief Justice, Mr. Justice Fagan
(quoted b~·Applicants as a "Jurist") 1a small splinter group called the
National Union, which made little, if any, impact on the electorate.
Before the 1961 general elections the National Union entered into an
electoral pact with the United Party, pursuant to which, inter alia, Mr.
Basson contested and won (with United Party support) a former United
Party seat. The Hon. M.r. Fagan was promoted to the Senate, and
shortly after the election the National Union merged with the United
Party.
15. Jir. Fagan is not, however, the only authority quoted by Appli
cants from spheres other than the political who in actual fact has been
vcry active in politics. Thus, for example, Mr. Alan Paton (quoted under
2
the heading "Authors") bas been National President of the Liberal
Party since 1962 3• Professer Leo Kuper (quoted under the heading
"Scho1arly Authorities") ~ was appointed to represent the same party on
the so-called South African Freedom Committee set up in terms of the
following resolution adopted at a meeting in Fordsburg on 3 February
1954:
"1. This meeting of the representatives of the N.E.U.M., S.A. Indian
Congress, S.A. lnclian Youth Congress, African National Con
gress and Liberal Party totally disregard the Nationalist Govern
ment's oppressive Legislation and therefore whole-heartedly
expects to defy ail oppressive Laws of the Government.
2. This meeting calls for the formation of the South African Free
dom Committee consisting of two members of each party
represented; to find ways and means to defy whatever oppres
sive laws the Government made.
3. This meeting calls upon any member of the proposed Committee
to pledge that no matter what happens they must never reveal
the plan or personnel of the Committee.
4. This meeting also resolves that the Committee must not be made
public. The masses must be told that each party only sym
5
pathises with the struggle but takes no active part ."
The former Chief Justice, the Hon. Mr. Centlivres (quoted under the
heading "Jurists") 6 served on the Molteno Commission which was
appointed by the Progressive party to draft constitutional proposais for
insertion in the party's programme of principles. The policies of the same
party are vigorously propagated in the press by Professor P. V. Pistorius,
a member of its National Executive, who is quoted by Applicants under
the heading "Scholarly Authorities" 7•
C. Intellectual Societies lnterested in Race Relations
16. On the more intellectual level, there are two societies in South
Africa which are devoted to the scientific study of matters affecting the
1 IV, p.285.
2 Ibid.,p. 287.
3 Carter, G. M. (Ed.), Five Ajrican States: Responseto Diversity (1964), p. 533.
• IV,p. 494.
~Departmental information.
6 IV, p. 286.
' Ibid.pp. 494-495.332 SOUTH WEST AFRICA
relationship between the various population groups in South Africa. The
first to be estahlished was the Institute of Race Relations, which had its
origin towards the end of the r92os largely as a result of European-Bantu
conferences convened bv the Federal Council of the Dutch Reformed
Churches 1. Its membership was shown as 3,853 according toits annual
report for 1962-1963. Its object has been stated as follows:
"The object of the Institute is to encourage, work for, and foster
peace, goodwill, and practical co-operation between the various
sections and races of the population of Southern Africa. It is tied to
no political crced, respectful regard is paid to the traditions and
usages of the various national and racial groups, and due account is
taken of opposing views earnestly and sincerely held 2."
r7. Despite the above-quoted statement of its object, the Institute has
in the course of time developed, if not a creed or policy, then at least a
well-defined political philosophy. The basic premises of this philosophy
were expressed as being~
"... belief in the value of the individual human being and his right,
by virtue of his humanity, to the fullest expression and development
compatible with similar rights of other individuals within the pattern
of a democratic state;
belief in the values of democratic society with its accepted freedoms,
rights and duties;
acceptance of the brotherhood of man in its Christian interpre
tation 3".
Regarding the application of these principles, the Institute's attitude is
as follows:
"The Institute has consistently recognized that this concept of
democracy has seldom, if ever, been applied in a multi-racial society
with peoples of varying cultures and at different stages of develop
ment or, indeed, in any society. Nevertheless, it has always accepted
that the full measure of such democracy must ultimately be applied
to South Africa ...
The principles mentioned above do not predicate for South Africa
either a policy of total segregation or a policy of total integration.
While the late Professor Hoemlé, President of the Institute for
man y years and largely responsible for the philosophy underlying its
work, .pointed out most clearly that a policy of complete territorial
segregation was âs compatible with these principles as a policy of
complete assimilation, yet, after an exhaustive analysis of the
position at the time that he wrote, he came to the conclusion that
complete territorial segregation was in fact impossible. He himself
could proffer no complete solution for South Africa's difficulties
while racial attitudes remain as they are ...
The Institute also considers that the adoption of a policy aimed
at total (physical, political, economic, social) assimilation as analysed
1 Hellmann, E. (Ed.), Handbook on Race Relations in South Africa (1949), pp.
653-655.
2 Ibid., p. 654.
~ Go Forward in Faith: A statement of the Fundamental Beliefs and Attitudesof
the South African Institute of Race Relations (pamphlet issued by the South
African Instituteof Race Relations), REJOINDER OF SOUTH AFRICA
333
by the late Professor Hoernlé is not acceptable and is equally
impracticable. The lnstitute, however, holds that basic cultural
assimilation is possible and desirable. Physical assimilation ... is an
entirely different matter ...
. . . It also considers that, while fundamental human rights must be
granted to all South Africans and positive steps taken towards that
end, the great majority are not in a position at present to undertakc
the full responsibilities inherent in such rights ...
In our present form of democratic society, political equality
involves fondamental equality and, with the predominance of
Africans in South Africa, it means ultimately the numerical pre
ponderance in the political sphere of Africans. The Institute adopts
three approaches to this:
The first is that, given the assumption of a society which is
integrated in various degrees, the Institute considers that to deny
any racial group participation in some form or other in the central
and local governing bodies is to condemn that group to perpetual
subordination which no self-respecting people will accept. The
lnstitute accordingly believes that Africans must be represented in
our central legislature ...
The Institute's third approach is that when one civilization daims
the rights and the duties inherent in the assumption of power in
another civilization the members of the former must qualify for such
rights.Whether such qualification should take the form of a common
but loaded franchise or some other form has not yet been formulated
by the Institute, but it believes that whatever form political
representation may take immediately, in the long run such re
presentation can be no less than that held by Europeans. The road
to such common citizenship must be by evolution ."
18. The above philosophy, which is vigorously propagated by its ad
herents in political, as well as academic and religious circles in- South
Africa, is based on the following premises which have. in particular, been
the subject of dispute, viz.,
(a) that complete territorial segregation is not practicable,
(b) that complete political and economic integration is practicable
although, as the lnstitute recognizes, it "has seldom, if ever, been
applied in a multi-racial society with peoples of varying cultures
and at different stages of development" 2,and
(c) that it is possible in present-day circumstances to achieve complete
political and economic integration by a graduai process 3.
The very name of the pamphlet in which the above philosophy is set out
("Go Forward in Faith"), indicates that at least some (a,nd Respondent
would suggest particuLarly the last-mentioned two) of the above beliefs
are matters of faith rather than of intellect or science.
19. Although the Institute of Race Relations daims not to be tied to
any party political doctrine, it is patent that the premises and beliefs
undcrlying its philosophy find a great deal of common ground with the
1 Go Forward in Failli, opcit.
2 Vide para. 17, supra.
~ Vide Chap. III, supra. SOUTH WEST AFRICA
334
policies of the Progressive Party 1•Like the Progressive Party, its support
appears to be declining. According to its latest annual report (that for
1962-1963) the Institute's "membership ... has now decreased and now
stands at 3,853" 2• The same report states that "the 1961 membership
campaign was only very partially successful" 3•
20. It is striking how many of the "White South Africans" quotcd by
Applicants from intellectual spheres, are associated with the Institutc of
Race Relations in one way or another, and subscribe toits basic political
philosophy. Thus its President is the Hon. Mr. O. D. Schreiner, former
Judge of Appeal 4.Professor Edgar H. Brookes 5, is a past President and
bas long been a regular contributor toits publications. Indeed. the passage
quoted under his name in the Reply 5 was derived from an article in the
Race Relations Journal, the organ of the Institute of Race Relations, as
is the case with the passages quoted from articles by Professor Monica
Wilson 6 and Professor L. M. Thompson 7•Other former Presidents of the
8 9
Jnstitute are Mr. (not Dr.) Leo Marquard and Mr. Donald Molteno •
A prominent member is Dr. Bernard Friedman 9• The passage by Pro
fessor D. V. Cowen 10 forrns part of a lecture delivered under the auspices
11
of the lnstitut12 as do those by Archbishop Dennis Hurley and by Dr.
B. B. Keet .
21. The decline in the fortunes of the Institute may possiblybe ascribed,
inter alia, to many of its adherents recently taking a newlook at facts and
policies in South Africa. An example of these is Professor D. V. Cowen,
quoted as a "Scholarly Authority" 13• In a recent series of articles, he
stated, inter alia:
"Among the essential factors frequently overlooked by critics
abroad, I mentioned that no blue print for South Africa has any
chance of sticking unless the Whites as well as the non-\Vhites want
it and willingly accept it.
However much one may deplore the fact, it remains a very hard
and real fact that the overwhelming majority of South African
Whites, in the present stage of their development, just cannot face
the prospect of living together with the non-Whites on a footing
of complete equality in one undivided country. One man, one vote-.
or even a qualified franchise which may lead toit-are not accept
able to the Whites.
lt seemed tome that some of South Africa's critics, well mcaning
though they may be, tend to overlook the magnitude and frightful
difficulty of the human situation with which we are concerncd.
1
As to which, vide para. 8, supra.
2 South African Institute of Race Relations (Inc.): 34th Annual Report 1962-r9C.3,
p. 19.
3 Ibid.,p. 17.
• Quoted by Applicants under the heading ..Jurists",IV, p. 285.
5
Quoted by Applicants under the heading "Scholarly Authorities", ibid.,p. 281.
7 Ibid., p. 282.
Ibid.,p. 283.
8 Quoted as "Scholarly Authority", ibid., p. 493.
9 Quoted as .. Political Leader", ibid., p. 286.
10 Quoted as "Scholarly Authority", ibid., p. 281.
11 Quoted as "Religions Leader", ibid., p. 496.
12 Ibid.,p. 284.
11
Ibid., p. 281, vide also pp. 321-323. REJOINDER OF SOUTH AFRICA 335
\Ve speak of a colour 'problem', but colour is only an element, albeit
a very important one, in an evolving social and economic process
rather than a problem itself. We are faced with a process of develop
ment that has to be Iived with, rather than with an intellectual
problem whjch can be solved and disposed of.
Yet, while the Whlte man in South Africa backs away from any
deliberate or articulated policy of living in a politically and socially
integrated society, increasingly he is beginning to recognize that he
cannot continue to survive as a dominatmg and privileged minority.
Steadily, remorselessly, the pangs of conscience and the pressure
of public opinion take effect.
Whether the trend was foreseen, or whether it has become un
avoidable, 'baasskap' [domination] has tended to give way to
'separate development'; even 'separate development' is coming to
be replaced in some influential quarters by the concept of 'separate
freedom'; and, meanwhile, quietly, industry and commerce effect a
revo!ution in White policies.
Non-Whlte standards of living are, of course, manifestlv lower
than White standards, but they are steadily rising. and hùe long
been sufficiently attractive to draw migrant labourers (though
admittedly only a small proportion of the whole) from indepen
dent countries which are out of sympathv with South Africa's
policies; for example, Uganda and Tanganyika 1•
Barely three years ago, in my book 'The Foundations of Freedom',
I criticized the Bantustan experiment in the Transkei on the score
that it was retrograde and undcmocratic, more particularly because
the idea of popular voting was entirely excluded, as being alien to
the Bantu mentality 2•
The Government's policy has since changed radically; under the
revised Transkeian constitution voting is now allowed to take place
on a substantial scale-a definite step, in my view, in the right
direction; and so this particular piece of criticism largely falls away.
lndeed, I have been much impressed by an article which appeared
in The Star on July 27 by an African, Mr. D. T. .Moerane, in which
he argues that the Government's Bantustan policy might, in the
long run, prove to be the most effective-as it is now the only
practicable-method of giving Africans in this country a voice in
the emerging pattern of race relations 3•
I have, in the past, seen the 'separate homeland plans' as affording
nothing more than a temporary respite. a lessening of pressure, so
to speak; but in the long run only a stage along the road to eventual
South African integration. And ·1 have tended to write down their
significance because of the more immediate impact of anomalies and
injustices in the so-called 'White areas'.
However, it would seem wiser not to spum the value of any
lessening pressure in a dangerously emotional situation, especially
where it is just not possible, in the short run, to press for one
undivided !;Ocietyon terms of full equality ...
Evidence of change for the better is manifest to anyone who is
1 The Star, 21 Sep. 1964.
2 Vide IV, pp. 322-323, where Prof. Cowen's criticism in thisregard is quoted.
3 Vide para. 65,infra,forextracts from thisarticle.336 SOUTH WEST AFRICA
honest enough to keep his eyes open, and humble enough not to
expect the immediate advent of the millenium.
This is especially true in South Africa's industrial life; African
minimum wages are rising steadily; Iast February the Minister of
Labour stated in the Senate that there would be no ceiling to the
skills Africans would be allowed to acquire in the border areas (a
change in policy which has enormous possibilities); and, in the big
cities,the wastefulness and inequity of 'job reservation' is beginning
to break down in the face of economic realities ."
22. After the Second \Vorld \Var, a number of scientists, religious
leaders, educationists and others, who were interested in the scientific
study and examination of matters relating to race and group attitudes,
but who did not accept the political philosophy of the lnstitute of Race
Relations, founded the South African Bureau of Racial Affairs (SABRA).
The aims of the Bureau are:
"(r) To promote and exert itself for the separatc development of,
on the one hand, the European and, on the other, the various
non-European groups of the population of South Africa, and to
protect and safeguard the interests of these groups.
(2) To encourage and work for peace, goodwi!l and co-operation
between the various sections and races of the population of South
Africa.
(3) To devote itself to the accomplishmcnt of a Just and equitable
regulation of racial affairs in South Africa. and to promote the
general welfare of the European, Coloured and Native inhabitants.
(4) To afford and distribute information regarding all aspects of
race relations in South Africa and to create, hcre and elsewhere, an
enlightened public opinion in this connection, also as to the impli
cations and application of a policy of separation.
(S) To do research work and to make a thorough and scientific
study of ail the important aspects of our race problems.
(6) To exert itself for the proper development of the Native
Reserves 2."
The Bureau has provided the following information regarding its
membership and sources of funds:
"Amongst its founder members were prominent leaders from ail
walks of lite, not only from the Afrikaans group, but also from
among the English-speaking section. There were religious leaders
like prof. G. B. A. Gerdener, jurists like Dr. C. G. Hall 3, prominent
scholars like prof. H. B. Thom and Dr. \V. W. M. Eiselen and also
businessmen like Mr. Hugh Solomon and Col. C. F. Stallard 4, etc.
Sabra's membership rose from 500 in 1949 to nearly 2,000 in 1964
and its membership is still growing.
Affiliated to the organization are a number of universities, church
bodies, financial and business institutions and a large number of
municipalities and other local authorities. In no way whatsoever
does Sabra receive any financial support from the government."
' The Star, 22 Sep. 1964.
2 South Africaa Bureau of Racial Afjair(SA BRA): "Aims, Favourable Recep
tion."
3 Later Judge of Appeal.
• During the Second \Vorld \Var a member of Gencral Smuts' Cabinet. REJOINDER OF SOUTH AFRICA
337
23. At the fourth annual Congress of SABRA in 1953 the following
resolntions were passed:
" (a) This Congress is of the opinion that a policy of differentiation
between (as distmct from discrimination against) the varions racial
groups is not only jnst and Christian, but also the only one which
will ensure an eqnitable treatmcnt of these varions groups, and
which is absolutely indispensable if the particular outlook and
pattern of life of cach of them are to be acknowledged and respected;
and furtherrnore that a policy of assimilation necessarily involves a
negation of the particular outlook and pattern of life, and is bound
to lead to frustration and injustice.
(b) that Western Culture, having been brought by the Providence
of God to South Africa, must retain in any future developments
its fundamentally Christian outlook.
(c) that certain fundamental patterns of Bantu culture are of the
utmost importance to that culture and may not be threatened by a
process of belittlement of that culture nor of overemphasis upon
the externals of \Vestern Culture.
(d) that if some new and peculiarly S.A. Culture should arise in
S.A. it can only be a spontaneous growth in the spirit of our two
present cultures t".
In 1952 SABRA issued the following statement of policy:
"By a policy of free and separate development, we must under
stand the territorial separation of European and Bantu, and the
provision of areas which must serve as national and political homes
for the different Bantu commnnities and as permanent residential
areas for the Bantu population or the major portion of it ...
Only a separation policy, which accepts the organic unity of the
Bantu communities as a basis, can create conditions under which
the Bantu can determine the rate of their own progress, and which
can safeguard the European population against continuai accusations
of discrimination and neglect 2."
24. Many individnal members of SABRA, as·well as other scientists
and scholars, have expressed favourable opinions on Respondent's
policies or certain aspects thereof. Sorne quotations from such authorities
are set out below 3•Although these authorities represent a very snbstan
tial and important section of academic and spiritual life, Applicants have
completely ignored them in making their alleged "fairly selected cross
section of evaluations of apartheid" i_
25. ln an address cntitled "The Case in Favour of Apartheid" delivered
in London in 1957, Professor L. J. du Plessis of the Faculty of Law at
Potchefstroom said, inter alia:
"But there is a strong difference of opinion about the proper
course to pursue to attain their complete emancipation [of non-
• Die Naturel Ùl die S1ûd-Afrikaanse Lamibou: Referate gelewer op die Vyfde
Jaarverga.dering van die Suid-Afrikaanse Buro vir Rasseaangeleenthede (SABRA),
Ja2. (1954), p.108.
lntegration or Separate Development? Issued b)' the South African Bureau of
Racial Affairs (SABRA), Stellenbosch, 1952, pp. 18 and 30.
3 Vide paras. 25 et seq., infra.
• IV, p. 27ï. SOUTH WEST AFRICA
European nations], namely whether it should be sought in one or
two integrated multi-racial societies, which has not yet been nearly
accomplished; or whether the solution should be sought in develop
ing a number of racially fairly homogeneous national communities
according to so-called ethnie affiliations, for which the basis still
exists in the various British Protectorates and the native areas of
the Union of South Africa and South West Africa, which together
caver nearly half of the best land in Southern Africa. The first policy
is called that of integration or partnership, the latter is that of
apartheid or separate development and is, in the main, the policy
of the present South African govemment.
The difficulty we feel in further developing an integrated multi
racial society, can hardly be realized by foreign Europeans or even
Americans. Simply because they themselves do not face any national
crisis in this respect. They are site and secure in their own homo
geneous national societics, and even the developing West-European
union would respect the national diversities of its several and
diverse component parts. And in the United States, even if the
negroes were completcly integrated, Americans would not Jose their
own nationality and the character of that great nation would be
hardly affected. In South Africa, however, a similar integration
would certainly wipe out the fully established South African nation
of Afrikanerdom, whether Afrikaans or English-speaking, and would
immerse the developing non-European nations in inter-tribal chaos.
This would mean at least the suicide of a young and virile nation,
a nation Christian in religion and European in racial composition,
a very successful and indeed, as 'webelieve, a necessary bulwark of
the Western way of Iife in Southern Africa ... 1"
26. Professor H. J. J. M. van der Merwe, Dean of the Faculty of
Afrikaans in the University of South Africa, wrote as follows in the
course of a thorough analysis and discussion of the relevant problems:
"I look fonvard to the day when we will experience equanimity,
peace and the prospect of a secure future and can Jive ln harmony
as a South African people, united in will and purpose, next to free
black states which can live together with the \Vhite states in a
greater whole of a United States of South Africa. \Vith Segregation
this is possible2." (Translation.)
27. Dr. A. L. Geyer, former newspaper editor, High Commissioner in
London, and Chairman of SABRA, said in his Presidential address to the
nth annual congress of SABRA in July 1960:
''Last year the congress welcomed the Prime i\Iinister's announce
ment of policy regarding Bantu homelands and expressed its
wholehearted support thereof.
Sabra does not only endorse the policy because jn our opinion it
presents the only method of safeguarding the continued existence
of the one White nation in this black continent. We also do so
1 Du Plessis, L. J.,"The Case in Favour of Apartheid", Science and Freedom,
No. ro (Feb. 1958) (Apartheid and the World's Universities:Report on a meeting
held in London, Xov. 1957), pp. 32,40 at pp. 37-38.
2 Van der :lferwe, H.J. J.M., Segregeer of Ster/ (1961),I,J9, REJOINDER OF SOUTH AFRICA 339
because we believe that it is morally right and that in the long run
it is in the best interests of our Bantu 1." (Translation.)
28. Dr. G. Cronje, Professor since 1937 at the University of Pretoria,
and now Dean of the Faculty of Philosophy, said in a recent work:
"The ideal solution for South Africa's racial problems is the effec
tuation of territorial separation between the various racial gr'oups,
the socio-economic development of each community, and the crea
tion of its own form of government 2." (Translation.)
29. In a recent article entitled "In Defense of Apartheid", Professor
C. A. W. )lanning, a born South African who was personal assistant to
the Secretary-General of the League of Nations, Professor of International
Law and Diplomacy in the University of Oxford, and is at present Profcs
sor Emeritus of International Relations in the University of London,
wrote the following; ·
"That very self-determination which his fathers fought for is what
the Afrikaner now envisages for each of the African peoples still
subject to the white man's rule. The philosophy of separate develop
ment implies a rejection of the fallacy that wherever a single system
of government is in operation, there do the govemed compose a
single people. \Vere the critics of South Africa to accept squarely
the fact that South Africa comprises more communities than one,
their admonitions would be more persuasive and their proposais
more to the point. As it is, what many of them keep calling for is
something which they might well know to be impossible-the inau
guration, namely, of a system in which South Africa's many peoples
would resolve themselves unreluctantly into one ."
30. Dr. J. E. Holloway, formerly Professor of Economies, Transvaal
University College, Dean of the Faculty of Commerce, University of
South Africa, Director of the Office of Census and Statistics, Economie
Adviser to the Treasury, Secretary for Finance, and High Commissioner
for the Union of South Africa in London, recently wrote a monograph
entitled "Apartheid-A Challenge", in which he points out, inter alia,
that-
"[b]asic to ail problems of group relationships there is a common fac
tor which no statesmanship is ever at liberty to disregard. This is
the a1most universal phenomenon that there is always a strong
tendency to friction when groups, which differ from each other in
important aspects, are thrown together in large numbers in the same
community 4".
After referring to the unique combihation of possible sources of fric
tion in South Africa, Dr. Holloway continues:
"The first task of statesmanship is that of sorting out the pieces
of varying size, shape, colour, context and quality in this giant jig
saw puzzle. A satisfactory process of sorting out is a pre-condition
1 South ..\fricauBureau of Racial Affairs, journalof Racial Atfairs,Vol. II, Iso. 4
(July 1960), p. 188.
2 Cronje, G., Regverdige Rasse.apartheid (1947), pp. 155-156.
3
:\Ianning, C. A. W., ··sou th Africa and the World: In Defense of Apartheid",
Foreign Affairs: An American Quarterly Review, Vol. 43, .Xo. 1 (Oct. 1964), at
p. 148.
• Holloway, J. E., Apartheid-A Challenge (1964), p. 28. SOUTH WEST AFRICA
340
for the success of any future policy. The frictional ingredients must
be reduced to managea hie proportions 1."
Dr. Holloway then illustrates his point by referring to historical ex
amplcs, which he sums upas follows:
"Polarisation has been the consistent factor in group relationships
throughout the ages. Apartheid has been the only principle which
has worked through the ages, when these basic sources of friction
have been present 2."
31. Professor N. J. J. Olivier, a former Vice-Chairman of the Technical
Advisory Committee of the Western Cape Committee on Local Native
Administration, a member of the International Conference on Race
Relations in World Perspective (Hawaii 1954), and former Vice-Chairman
of SABRA who is at present Professor of Bantu Law and Administration
at the University of Stellenbosch, wrote in an article first published in
1953 in the journal of International A[Jairs:
'.'Politically, the policy of separate development envisages the
creation of a number of Bantu territorial units with an increasing
measure of self-government. The basic principles to be applied in this
connection is (sic) that Europeans living in the native areas will be
citizens of the European state; natives living in the European area
will be integrated into the political machinery of the various
native areas. What the eventual form of collaboration between the
European sector and the various native sectors will be is difficult
to foretell, but it is quite possible that it may develop along federal
lines,eventually resulting in a United States of Southern Africa or a
Southern Africa Confederation. Only an arrangement of this sort can
do justice to the political and economic aspirations of the native
peoples, and still guarantee the Europeans' continued political exist
ence. Such a policy aims at forestalling the race conflict that is inhe
rent in the present situation by removing the root cause of the prob
lem-the intermixture of the races. The same solution was put in
force in the former British India by its partition into the two scpa
3
rate states of India and Pakistan ."
D. The Churches
32. Just as in the political and intellectual life of South Africa. so also
in religious circles have the problems of race relations aroused much
thought, debate and, indeed, controversy. Under the heading "Religions
Leaders" Applicants quote extracts from statements of members of the
Anglican Church (Archbishop de Blank 4 and the Reverend Trevor
Huddleston 5), the Nederduitse Gereformeerde Kerk (Dr. B. B. Keet 6).
(the Gereformeerde Kerk (Dr. Hugo du Plessis ). the Catholic Church
7
Archbishop Dennis E. Hurley ).and certain resolutions of the Cottesloc
' Holloway, J. E., A partheii-A Challenge (1964), p. 29.
i Ibid., p.30.
1 Olivier, N.J.J.,"Apartheid-A Slogan or a Solution?",}ottrnal of !11ternalio11al
Atfairs,Vol. VII, No. 2 (1953), p. 141.
• IV, p. 283.
5 Ibid., p. 595.
6 Ibid.,p. 284.
1 Ibid.,p. 596. REJOI;,.'DER OF SOUTH AFRICA 341
Consultation of the \Vorld Council of Churches 1. Once again, however,
Applicants' "fairly selectcd cross-section of evaluations of apartheid"
excludes the substantial body of support found for the policy of separate
development in all the above churches, and the ovcrwhelming support
found in some of them.
In referring to such support, Respondent does not wish to be under
stood as signifying that views expressed by churches or their leaders are
fit matters for introduction into the merits of political debates. The ques
tions whether church leaders should make public pronouncements at all
about matters which form the subject of practical political controversy,
and, if so, to what extent and within what limits, are in themselves con
troversial, not the least amongst churchmen themselves. For their part the
Respondent Govemment and its representatives have, as far as possible,
rcfrainecl from drawing the views of churches and thcir leaders into poli
tical debates, whether in the national or international sphere, and have
not taken sicles in controversies between churches or their members.
The exposition which follows is not intended to dcviate from this approach.
It is not directed at justification of Respondent's policies by the quota
tion of fa\·ourable pronouncements, or by the refutation of unfavourable
pronouncements: the merits of Respondent's policies are dealt with else
wherc. The sole purpose of the exposition is to refute Applicants' one
sidecl representation, and to indicate the wide variety of views that have
in fact becn expressed, and are no doubt sincerely held, by various chur
ches, and particularlywithin the various churches, by their leaders, mem
bers and adherents. As will be shown, Applicants' "cross-section" is in
fact extremely unrepresentative of the major trends of thought among
and within the churches.
In particular, although quoting two of its members, Applicants have
entirely failed to reflect the major currents of thought in the churches 2
which are in English commonly called the Dutch Reformed Churches •
Unfortunately the views of these Churches are often not very well known
to outsiders-as stated by Dr. W. A. Visser 't Hooft, General Secretary
of the \Vorld Council of Churches:
"Owing to the regrettable fact that so little of the relevant litera
ture has been translated into other languages, one finds that other
Churches -inSouth Africa or in any other countries know very littte
about the theological development in the Dutch Reformed Churches.
Thus one can hear it said that their position with regard to race is
still based on the conviction that the Bantu belongs to the descend
ants of Ham and must, therefore, be considered as permanently
destined to the role of servant. But that is not true. The present
thought in the Dutch Reformed Churches is by no means on that
primitive level. The searching theological discussion which goes on
in these Churches deserves to be taken very seriously 3."
1 IV, pp. 284-285.
2 There are three of these Churches, viz., the Nederduitse Gereformeerde Kerk,
the Nederduitse Hervormde Kerk van Afrika, and the Gereformeerde Kerk. The
Nederduitsch Gerejormeerde lfrrk is separately organized in various provinces, the
oldest or n10ther Synod heing that of the Cape, known as the Nederduitse Gerefor
me3rde Kerk in Suid-Afrika (Dutch Reformed Church in South Africa).
Visser 'tHooft, \V. A., Visit /o the South A frican Churches: A report to the Cen
tral Committee of the \\'orld Council of Churches on a visit to the South African
Churches in April and i'.\Iay 1952, p. 14. 342 SOUTH WEST .-1.FRICA
In the succeeding paragraphs, Rcspondent will give brief consideration
to the trends of thought in these Churches.
33. The largest of the Dutch Reformed Churches is the Nederduitse
Gereformecrde Kerk. Through its mission work,. this Church has a long
history of contact with various non-White groups in the Republic of
South Africa as well as in other parts of Africa. Recently a high office
b~arer of the Church gave the following resumé of its missionary activi
tles:
"... since the middle of the previous century this church has entered
mission fields in various parts of Africa. Actually the sphere of her
missionary labour includes 14 territories in Africa with I7 language
and racial groups.
. . . . . . . . . . . . . . . . . . . . . .
The Dutch Reformed Church has rendered extensive ser\"Îce in the
fields of medical work, education and the provision of literature. At
present she has 34 mission hospitals where nearly half a million pa
tients receive medical treatment annually. At our mission hospital
at Morgenster in Southern Rhodesia, we receive patients from over
the whole of Southern Rhodesia as well as from the adjoining terri
tories of Nyasaland, Northern Rhodesia, Bechuanaland, P. E.
Africa and the Union of South Africa. The Dutch Reformed Church
has also undertaken pioncer work amongst the lepers in Southern
Rhodesia, Northern Rhodesia, and Northern Nigeria. At present
she still runs Ieper hospitals and settlements in Northern Nigeria
and Northern Rhodesia with 17,000 and more Ieper patients. In
three parts of Africa, the Dutch Reformed Church by the grace of
God was the first to stoop and serve these former outcasts of Afri
can society, formerly buried alive.
Pioneer work was clone amongst the African blind in Southern
Rhodesia, Northern Rhodesia and Nvasaland. This work is still
being continued. Likewise schools for Àfrican Deaf are to be found
in Southern Rhodesia, Northern Rhodesia, Johannesburg and the
Tmnskei.
. .
At present this Church bas undertaken the editing of religious maga
zines in African languages, in English and in Afrikaans. No Jess
than four printing presses of this church are daily printing literature
for Africans. At present a fund of three million pounds isbeing raised
for the distribution of Christian literature in Africa.
To carry on its extensive missionary program the Dutch Reformecl
Church (European) with 720,000 full members annually contributes
[2,033,000-an average of more than f2 17s. per capita 1."
34. In consequence of its missionarv activities, the Nederduitse Gere
formeerde Kerk enjoys considerable sùpport from non-White groups in
Africa. The official records of the Church reveal the following memher
ship figures 2:
1 Address by the Rev. ,v.A. Landman, Scriba-Sinodi and Director of Informa
tion of the Dutch Reformed Church in South Africa; copy of text obtained from bis
official records and rnarked: "Address: Rev. \V. A. Landman", pp. 11-13.
2 Save where otherwise indicated ail information obtained from Rev. \V. A.
Landman (referredto in footnote 1, para. 33, supra). REJOI~DER OF SOUTH AFRICA 343
{i) Wltites:
(ln South Africa, South West Africa and Central Africa, 1963)
Congregations. . . . . . . . . . . . . . . . . . . 917
Members. . . . . . . . . . ........... 719,884
According to a sample tabulation of the South African Bureau
of Statistics (based on the 1960 population census) the number of
White adherents within the Republic of South Africa of the above
Church is 1,326,344 1.
There are 1,470 White ministers and missionaries.
(ii) Coloureds:
Congregations. . . . . . . . . . . . . . . . . 166
Local units (as yet not with the status of a congregation) 16
;\fembers . . . . . . . . . . . . . . . . . . . . . 104,031
According to the Bureau of Statistics (based on the 1960 census)
the number of adherents is 442,944 2•
There are 30 Coloured ministers and 41 evangelists.
(iii) Bantu within the Republic:
Congregations. . . . . . . . . . . . :w8
Members . . . . . . . . . . . . . . . . . . 123,536
According to the Bureau of Statistics the number of Bantu
adherents of the Three Dutch Reformed Churches was 556,898
in 1960 3• The number .of adherents of the other two Dutch Re
formed Churches is relatively small. The figure for the Nederduitse
Gere/ormeerde Kerk, after making allowance for the other two
Churches, could be between 400,000 and 500,000.
A comparison with earlier census figures shows that the influence
of the Dutch Reformed Churches has increased steadilv. The total
figures of adherents were: 1921: 109,888; 1936: 154,080 \ 1946:
266,734; 1951: 326,290 5• Increased as a percentage of the total
Bantu population, these figures represent: 1921: 2.34 per cent.;
1936: 2.34 percent.; 1946: 3-41 percent.; 1951: 3.81 percent.; 1960:
5.ro per cent.
There are 87 Bantu ministers and 581 evangelists.
(iv) Bantu outside the Republic:
(Rhodesia, Zarnbia, Malawi, Northern Nigeria, etc.)
Congregations and outposts (preaching posts at s~hools
in rural areas) . . . . . . . . . . . . . . . . . . 2,5II
Members ... 134,912
Adherents .. 400,000
1Iission Schools 2,073
Scholars .. 130,000
Teachers .. 3,800
Catechumen 50,000
1
Population Census 1960: Sample Tabulation, No. 6-Religion, All Races, p. 2,
3 Ibid., p. 16.
Ibid., p29.
• Population Census 8 I\Iay 1951, Vol. IIIU.G. No. 62/1954, p.66.
5 Ibid., Vol. VII, U.G. No. 38/1959, p. 76. SOUTH WEST AFRICA
344
There are 68 Bantu ministers and 65 evangelists. Here also
there are signs of healthy growth-in 1955 the membership was
only ro8,205 as against the above figure of 134,912 in 1963 1.
35. By reason of their close identification, as indigenous African
churches, with the peoples of South Africa, the Dutch Reformed Churches
have traditionally been much concerned with the problem of relations
between various population groups.
In regard to a conference held in 1950, Dr. W. A. Visser 't Hooft
writcs as follows:
"In April 1950, the Federal Mission Council which represents the
four fedcrated Dutch Reformed Churches 2 as well as the three
Dutch Reformed Mission Churches, held its conference at Bloem
fontein. This conference was an attempt to define a constructive
policy concerning the Bantu. The basic principle which pcrmeated
all discussions and resolutions was that of apartheid, but of apartheid
in a very specific sense, namely as a 'process of development which
seeks to lead each section of the people in the clearest and quickest
way to its own destination under the gracions providence of God'.
It was emphasised that the rights of every man were to be repeated
and that permanent subordination of one group to another should
not exist in any realm of life. The only way in which these aims
could ultimately be realised was by total separation, which would
mean the conversion of the native areas into true homelands of the
Bantu with full opportunity for development and self-government
and the replacing of theBantu in ... the present economic structure,
which would entail great sacrifice on the part of the European. But
a reorganisation which seemed to the conference quite inevitable
for, as it was put in one of the documents: 'no people in the world
worth their salt will be content indefinitely with no say, or only an
indirect say, in the affairs of the State or in the socio-economic or
ganisation of the country in which decisions are taken about their
interests and future' 3." (Italics added.)
It may be noted in passing that although Dr. Visser 't Hooft doubted the
practicality of the 1950 resolutions 4,he did not question them on ethical
or religious grounds.
36. In 1956 a National Congress on the Future of the Bantu was held
at Bloemfontein under the joint auspices of the South African Bureau of
Racial Affairs, the Federation of Afrikaans Cultural Societies and the
three Dutch Reformed Churches to discuss the subject in the light of the
then recently released findings and recommendations of the Commission
for the Socio-Economic Development of the Bantu Areas in South Africa,
usuallv referred to as the Tomlinson Commission.
The"following resolutions were, inter alia, adopted:
1 The r955 figure has been furnished by the Information Bureau of the Dutch
Ref2rmed Church, Johannesburg.
This refers to the federaorganization between the four provincial Synods of
the3Nederduitse Gereformeerde Kerk: vide footnote2 in para.32, supra, p. 34r.
Visser 't Hooft, \V. A., Visitto the South African Churches: A report to the Central
Committee of the \Vorld Council of Churches on a visit to the South African Churches
in April and May, 1952, p. 17.
• Ibid., p. 18. REJOrnDER OF SOUTH AFRICA 345
"6. (a) This Congress is convinced that in South Africa no possibility
exists of a peaceful evolutionary integration of Whites and
Bantu into a unitary society. A policy of integration will neces
sarily lead to increasing radai tension and conflict and eventu
ally to the destruction of the national existence of one or both the
groups; for this reason this Congress unambiguously rejects the
policy of integration as a possible way in which a solution for
this problem may be found.
(b) On the contrary the Congress is convinced that the only accept
able policy which is also practicable, is that based on the prin
ciple of separate development whereby provision is made for
the existence of separate communities in their own territories
where each community will have the opportunity for a full life
and development, and be assured of an unimpeded existence
and right to self-determination; and furthermorc the Congress
expresses it as its decided opinion that for the Whites and the
Bantu there can be no other acceptable policy leading to a
satisfactorv solution.
7. This Congress regards it as a necessary foundation and consequence
of the policy of separate development that the Bantu should progres
sively be afforded opportunities in their own areas of participation
in their own administrative affairs and for political self-expression,
and wishes in this connection:
(i) to express its appreciation of the introduction and successful
application of the system of Bantu Authorities;
(ii) to make a friendly appeal to the Govemment to pay particular
attention to the training of Bantu chiefs and the further develop
ment of the Bantu Authorities system 1." (Translation.)
37. ln :March 1960 a number of prominent leaders of the Nederdilitse
Gereformeerde Kerk (including the moderators of the different synods)
published a statement in Cape Town which included the following pas
sages:
"The Nederduitse Gereformeerde Kerk has in the past demons
trated clearly by its own policy and by pronouncements of its synods
that it can justify and approve the policy of independent, autogenous
development, provided that it is applied in a fair and honourable
way, without affecting or injuring the dignity of the person.
The Church has also accepted that the policy will, particularly in
its early stages, necessarily give rise to a certain amount of disruption
and personal inconvenience and deprivation, as for instance in the
case of sium clearance. The whole pass system shou\d be seen in this
light 2."
Further statements by or on behalf of the Nederduitse Gereforrneerde
Kerk are considered below with reference to the Cottesloe Consultation •
1 Volkskongres oor die Toekoms van die Bantoe: Referate en besluite: Volkskon
gres, Bloemfontein, 28-30 Junie 1956, pp. 137-138.
2 Information supplied by Dr. F. E. O'Brien Geldenhuys, ;\]oderator of the
Northem Transvaal Synod of the Nederduitse Gereformeerde Kerk, from his official
records.
3 Vide particularly!)aras. 46 and 49, infra. SOUTH WEST AFRICA
38. It will be apparent from the above that Dr. B. B. Keet 1 represents
a minority point of view in the NederduitseGereformeerdeKerk. His work,
The Ethics of Apartheid, from which an extract is quoted in the Reply 1
has indeed been the subject of detailed criticism by a fellow theologian,
Dr. A. B. du Preez, Professor of Christian Ethics in the Theological
Faculty of the University of Pretoria 2,who states in general:
"In his most recent work The Ethics of Apartheid Prof. Keet pre
sents nothing else than a caricature of the idea of apartheid, with
out taking into account the connotation of the term as indicated in
the history and association of his people with the Non-\Vhites 3."
39. The smallest of the Dutch Reformed Churches is the Gereformeerde
Kerk 4. Applicants quote Dr. Hugo du Plessis, a member of the theologi
cal faculty of this Church, as one of the "religious leaders" relied upon
by them 5•In January 1961 the General Synod of this Church adopted
the following resolution:
"From the fact that God gives each people its place (Acts 17:26),
it follows that if two peoples or races live in the same territory and
each wishes to preserve its own identity, inexpressible tensions arise.
Territorial separation of peoples is one of the material factors in
counteracting undesirable intermixture and thrcats to the national
existence. Whcre this cannot be achicved, the conditions lead to
absorption of the one by the other through miscegenation or violent
destruction of the national identity. From this it follows that a
people which wishes to preserve its identity, must make the sacrifices
demanded for the acquisition and preservation of its own father
land, inter alia, by recognising the rightful daims of other peoples
to their own fatherland. The idea of a 'multi-racial people in a single
terri tory' must be rejected on Scriptural grounds 6." (Translation.)
40. Applicants' quotations from an article by Dr. Hugo du Plessis 5
may give the impression that the author is in disagreement with the
above view of his Church. Such is, however, by no means the case. In
deed, his complaint is that separate development is not befog irnpJe
mented ~ullyand speedily enough. Immediately after the passage quoted
by Apphcants the author says:
"We must learn to adopt a more altruistic attitude, namely, to
promote differentiation in the interests of the Bantu themselves.
Integration is not to their advantage and for this reason we advocate
autochthonous development. This is quite in order, but, we must
add, permanent white domination and retarding of the freedom and
advancement of the non-White are not to their advantage and not
in order. \Ve must be inspired with the ideal of helping them to
develop towards a happy and prosperous independent national
1Quoted by Applicants at IV, p. 284.
2 Vide du Preez, A. B., lnside the South African Crucible (1959).
3 Ibid., p221.
• lts total membership in 1963 was 57,223 \Vhites, 637 Coloureds and 8,578
Bantu according to Cawood, L., The Churches and Race Relations in South Ajrica
(1964), p. 40.
5 IV, p. 284.
6 "Uil Een Bloed . .. ": 'n Rapport aan en 'n Besluit van Die Algemene Sinode
van die Gereformeerdc Kerk in Suid-Afrika oor Rasseverhoudinge" (1961), p. 74. REJOI~DER OF SOUTH AFRIC:\ 347
existence. Healthy relations are only possible if the Bantu's racial
dignity, identity and right to their own country is acknow
lcdged.
For this reason we reject the utopian ideal of unity in a diversity,
White and Bantu diversitv, in a common fatherland and under the
same government as pleaded for by Mrs. M. Ballingcr. among others,
in 'South A/rica the Road Ahead'. Even if it was possible, it would
lead to somcthing more than the crossing of barriers 1."
In a more recent work, Dr. du Plessis said the following:
(a) ''On Scriptural grounds we can fully associate ourselves with a
just policy of autogenous development and we even prefer it to a
policy of integration which implies that the soul of the Bantu
must be killed and his identity eliminated 2."
{b) "The only righteous policy which will benefit bath us and the
Bantu, is total segregation which must be implemented gradually
but as fast as possible ... 3"
(c) "If, however, the ideal of a great future of independent states,
which will be accompanied by complete segregation, is the objec
tive and ail energies are enlisted to this end, the present segregation
measures may be temporarily approved provided that, as regards
the permanent Bantu inhabitants in the White areas, they are
graduaily removed, until astate of balance and stability is achiev
ed, when ail discriminatory apartheid against such Bantu must
fall away, although they can still live in separate residential
areas and the industrial labourers among them be employed in
parallel industries, while migrant labourers are only allowed in
for brief periods. In the interval, as the Governmcnt proposes,
ail Bantu who live in the White territories, may be linked with
the political organization of the Bantu homelands 4.''(Translation.)
4r. The third Church commonly includcd in the description Dutch
Reformed Churches is the Nederduitsch Hervormde Kerk van Afrika.
This Church also supports the principles of separate development, as
will appear from its statement at the Cottesloe Consultation 5•
42. The Anglican Church has on the whole adopted a critical attitude
towards the policy of separate development, at least as far as its clergy
are concerned 6•It must be borne in mind, however, that Anglican clergy
men are, for the most part, immigrants who sometimes spend relatively
few years in South Africa before leaving again, as was the case with
Archbishop de Blank and the Reverend Mr. Huddleston, quoted by
1Geyser, A. S. et al., Delayed Action: An Ecurnenical\Vitness from the Afrikaans
Spe2king Church, p. 68.
Du Plessis, H., 'nNuwe Deurbraak (1963), p. 26.
3 Ibid.,p.29.
• Ibid., p. 30.
~ Vide para. 48, infra.
6 In a recent publication (Cawood, L., The Churches and Race Relations in South
Africa (1964), p. 5)it is said that"there are many otdinary church members who
hold racial views diametrically opposed to those expressed in official staternenby
their churches. A prominent Anglican leader recently acknowledged in a press state
ment that there was "a great gulf between our profession and our practice in the
rnatter of race rela tians". SOUTH WEST AFRICA
1
Applicants • Their knowledge of the country, its peoples and languages
is often very inadequate, or one-sided, leading to judgments which are
faulty. Itis symptomatic of this situation that Archbishop de Blank felt
constrained to issue the following apology at the end of the Cottesloe
Consultation 2•
"ln our conviction that acquiescence in a policy of discrimina tory
segregation gravely jeopardizes the future of the Christian Faith
in South Africa, we believed-and still believe-that it was right
to speak urgently, clearly and uncompromisingly. But in the Iight
of what we have learnt here and the information now put at our
disposai, we confess with regret that in the heat of the moment we
have at times spoken heatcdly and, through ignorance (for which
ignorance we cannot be altogether held responsible), have cast
doubt on the sincerity of those who did not accept the wisdom of
such public action.
Nevertheless the delegates of the N.G.K. [Nederduitse Gerefor
meerde Kerk] have met with us in the fullest fellowship and we have
been deeply moved by this spirit of brotherly goodwill. Where, in
the past, we have at any time unnecessarily wounded our brethren,
3
we now ask their forgiveness in Christ ."
43. As will be noted below 4, at the Cottesloe Consultation the oppo
nents of government policy appeared to be critical of the application
rather than the principle of separate development. This seems to have
been the attitude also of Archbishop de Blank.
At a meeting of the B.B.C. Brains Trust on 6 July 1958, Archbishop
de Blank is recorded as having confirmed that the foltowing statement
attributed to him was correct:
"I don't feel that apartheid, in the sense that it means a separate
development of the races, is wrong in itself 5."
And during a visit to the United States of America in 1958, he stated:
"My chief quarrel with apartheid is in the way legislation is formulated
and implcmented." He added that for himself he thought the races
preferred to be independent of each other rather than integrated 6•
44. Although the attitudes expressed by Archbishop de Blank are
commonly found amongst Anglican clergy (although usually not in such
an extreme form), some prominent members of the Anglican hierarchy
in South Africa nevertheless support the policy of separate development.
Thus, for example, Bishop B. \V. Peacey. who worked for many years in
East Africa as well as South Africa, wrote in 1953:
"An examination of the prima /acie evidence for a policy of
differentiation has led to a confirmation both of its Christian Spirit
1IV, pp. 283-284 and 595-596.
2As to which, uide paras. 42-45, infra.
3 Cottesloe Consultation:The Report of the Consultation among South Afrîcan
I\1ernber Churches of the \Vorld Council of Churches, 7-14 Dec. 1g60 at Cottesloe,
Johannesburg, pp. 81-82.
• Vide para. 47, infra.
' Steward, A., The Challimge of Change (1962), pp. 43-44.
6Segal, R., PoliticalAfrica: A \Vho's \Vho of Personalities and Parties (1961),
p. fig. JŒJOIXDER OF SOUTH AFRICA 349
and of its justice to all races concerned. What then? It would seem
1
to be necessary to have laws to implcment it ."
And:
"[i]t is not only the European culture that we have to consider, the
attempt must be made, under every consideration of justice, to give
to Ban tu culture its opportunity to develop to meet a new situation:
neither of those cultures is static, develop they must, and in justice
to both I can see no reason why either should Josethe many splendid
characteristics which both cultures have. A policy of assimilation
seems to me a policy which goes forward in fatalism, not in faith.
A policy of differentiation seems to me to express what is common
to all cultures. to learn to survive in the face of new circumstances 2."
45. In 1960 the World Council of Churches arranged a consultation,
generally known as the Cottesloe Consultation, with leaders of the eight
South African Churches which were then members of the Council, viz.,
the Bantu Presbyterian Church of South Africa; the Church of the Pro
vince of South Africa (Anglican); the Congregational Union of South
Africa; the Methodist Church of South Africa; the Nederduitse Gerefor
meerde Kerk of the Cape Province and the Transvaal; the Nederduitsch
Hervormde Kerk van Afrika and the Presbvterian Church of Southern
Africa. Applicants refer to some extracts from the Consultation State
3
ment issued at the close of the Conference •They refrain, however, from
citing other passages and contemporary statements which demonstrate
that the participants in the Consultation by no means rejected the policy
of separate development. In fact, the opening paragraphs of the State
rnent included the following:
''The general theme of our seven days together has been the
Christian attitude towards race relations. We are united in rejecting
ail unjust discrimination. Nevertheless, widely divergent convictions
have been expressed on the basic issues of apartheid. They range on
the one hand from the judgment that it is unacceptable in principle,
contrary to the Christian calling and unworkable in practice, to the
conviction on the other hand that a policy of differentiation can be
defended from the Christian point of view, that it provides the only
realistic solution to the problems of race relations and is therefore in
the best interests of the various population groups.
Although proceeding from these divergent views, we are never
theless able to make the following affirmations concerning human
need and justice, as they affect relations among the races of this
country. In the nature of the case the agreements here recorded do
not-and we do not pretend that they do-represent in full the
convictions of the member churches •.''
46. 1t is clear therefore that the passages quoted by Applicants do not
imply any condemnation of the policy of separate development as such.
1
Peacey, B. \V., "Race Relations in South Africa: Principles and Policies",
journal of Racial Affairs(SABRA), Vol. 4, No. J,Apr. 19.53,p. IZ.
2 Ibid.p. r6.
3IV, pp. 284-285.
• Co/lesloe Consultation:Report of the Consultation among South African J\lem
ber Churches of the \Vorld Council of Churches, 7-14 Dec. 1960 at Cottesloe,Johan
nesburg (1961), p. 73.350 SOUTH WEST AFRICA
This was emphasized at the time by the representatives of the Neder
duitse Gereformeerde [{erk in the following statement:
"The delegations of the Nederduitse Gereformeerde Kerke of the
Cape and Transvaal wish to state that we have corne to consult
with other churches under the Word of God and with deep concern
for the various and complicated problems of race relations in the
country. We realise with deep Christian concern the needs of al!
the various population groups and that the Church has a word to
speak to them.
We wish to confirm that, as stated in the preamble to the Con
sultation Statement, a policy of differentiation can be defended
from the Christian point of view, that it provides the only realistic
solution to the problems of race relations and is therefore in the best
interests ofthe various population groups.
We do not consider the resolutions adopted by the Consultation
as in principle incompatible with the above statement. ln voting
1
on Resolution 15 the delegations of the two churches recorded their
views as foUows:
'The undersigned voted in favour of Point 15, provided it be
clearly understood that participation in the government of this
country refers in the case of White areas to the Bantu who are
domiciled in the declared White areas in the sense that they have
no other homeland' 2."
47. It is interesting to note in more detail the differences in approach
to the principles of apartheid (as it was referred to) which emerged from
the Consultation. The following is an extract from the discussions on this
aspect:
"The most serious objection which may be raised against the
apartheid policy is that it implies a concealed form of discrimination
based on colour or race. It is just here that the difference between
differentiation and discrimination was strcssed.
Where there are real and natural differences between groups, or
profoundly different needs and circumstances-the kind of situation
which arises spontaneously in society-it is rcasonable that these
different groups should be provided for differently. and treated
differently. This recognition in practice of natural differences may
be dcscribcd as diff ~entiation.
Where, however, groups which differ in race or colour have never
theless equal needs and similar circumstances-the kind of situation
that is developing in our urban, industrial society-it is wrong to
exclude some groups, hy degrading, uncharitable and slighting
deprivations, from provisions and treatment cnjoycd by one group.
This denial in practice, on the grounds of race and colour, of equal
needs and similar circum.stances mav be described as discrimination.
So understood, differentiation may be defended as a matter of
principlc, but not discrimination. lt was readily admittcd that dif
ferentiation has in some cases degenerated into discrimination; but
it was urged that discrimination could not be eliminated by abolish
ing differentiation. Further, it was pointed out that differentiation
1
2 Quoted by Applicants at IV, p. 285.
CottesloeConsultation: op. cil.80.. REJOINOER OF SOUTH AFRICA 351
in our socicty is not the product of the policy of the present govem
ment. The govemment has given its own statutory expression to a
situation which has existed for a long time and which has been the
result of an historical process.
This discussion, while serving a useful purpose in the exchange of
ideas, did not issue in any generally agreed statement. People as
deeply involved as we are in a human situation find excessive dif
ficulty interms rather than in ideas, are naturally averse to words
which have become shibboleths, and which have acquired dangerous
connotations in contemporary usage. There is an impoverishment in
language in words which we no longer dare to use.
In one sense, apartheid means the ideal of optimum independent
development based on the recognition in practice of natural dif
ferences; in another sense, the words mean the embodiment of this
policy in the legislative programme of the present govemment; in
yet another sense, the same word means the application of this
legislation by individuals to individuals. Sorne of us were prepared
to defend the ideal, and the intention of the govemment in its
legislation as a sincere attempt to embody this ideal; others felt
that apartheid must be judged by its application in our society;
and when understood as the segregation o{racial groups by statutory
compulsion, carried through without effective consultation, and
involving discrimination against the groups affected, it was felt by
these, must be condemned ."
It is to be noted that the objections raised by the opponents of separate
development related not to the principle thereof but to certain alleged
defects in its application.
48. At the conclusion of the Consultation. the followin 9tatement was
made by the delegation of the Nederduitsch Hervormde Kerk van A/rika:
"\Ve as delegates of the Nederduitsch Hervonnde Kerk are
grateful for the opportunity we had to Jisten to, and partake in,
the witness of the different churches.
\Ve wish, however, to state quite clearly that it is our conviction
that separate development is the only just solution of our racial
problems. We therefore reject integration in any formas a solution
of the problcm. The agreement that has been reachcd contains such
far-reaching declarations that we cannot subscribe to it. We can
therefore not identifv ourselves with it.
\Ve furthcr ~vishto place on record our gratefulness to the Govem
ment for ail the positive steps it has taken to salve the problem,
and to promote the welfare of the different groups.
The Nederduitsch Hervormde Kerk will in future as in the past
accept its responsibility to witness to the govemment and people in
accordance with the Word of God 2."
49. App!icants also refrain from informing the Court that the Cottesloe
Consultation gave rise to furtber debate within the synods of the Cape
and Transvaal Nederduitse Gere/ormeerde Kerk. The Cape Church
expressly reaffirmed itsattitude regarding the policy of separate develop
ment and-
1
2 Coltesloe Crms11llation: op. cit., pp. 23-24.
Ibid .• p. 79.352 SOUTH WEST AFRICA
"[declared] emphatically that a poliey of differentiation is well
founded scripturally, offers the only realistic solution for the
problems of race relations in our country, and therefore best serves
the interests of all population groups 1". (Translation.)
Regarding the specific resolutions of the Consultation, the Synod
declared:
"Although some of the resolutions ... would not per se be un
acceptable, if differently formulated, the meeting cannot associate
itself with the findings for the following reasons:
(a) The effect of the whole and the combined witness of the resolu
tions is such as to affect and undermine the policy of separate
development;
(b) some of the findings are pertinently in conflict with the principle
and policy of differentiation, e.g., points ... in which political
integration is advocated, and points ... in which, by an
impermissible application of Scripture, social and ecclesiastic
integration is advocated;
(c) a large number of the resolutions deal with matters of practical
politics on which the Church as institution should not express
any opinion unless one or other clear Scriptural principle is
involved 2."
The Transvaal Church decided at a meeting of its General Synodal
Commission on 2 March 1961 that an ad hoc Commission should consider
the mcrits of the Cottesloe resolutions. At the samc time the Svnodal
Commission reaffirmed that the Church- ·
" ... has also as regards the political spherc always been in favour
of a policy of differentiation or separate development which is based
on the principle of Christian trusteeship 3". (Translation.)
After the ad hoc Commission had reported, the Synod resolved generally
that anv of the Cottesloe resolutions which were in conflict with the
formulated policy of the Church, were not acceptable to the Synod 4.
lt also expressly resolved as follows:
"The Synod reaffirms the Church's acceptance that it is a part
of its vocation to promote the highest interests also of the non
European population groups and is convinced that this can best
be achieved by following the historie policy of differentiation 5."
(Translation.)
From the facts set out above, it is clear that the discussions at the
Cottesloe Consultation, as well as its aftermath, clearly belie any sugges
tion that the Churches participating therein were united in opposing the
policy of separate development.
1 Handelinge van die Vier-en-Dertigste Vergadering ,,an die Hoogeerwaarde
Sinode van die Nederduitse Gereformeerde Kerk in Suid-Afrika: Gehou in Kaapstad
op Donderdag, 19 Oktober 1961 en volgende dae (Sinodale Handelinge-Acta
Synodi), p. 50.
2 l bid.' pp. 50I.
3 Handelingc (Acta) van die Vyf-en-Twintigstc Sinode van die Ned. Geref. Kerk
van Transvaal: 19(>1p. 350.
5 Ibid.,pp. 382-383.
Ibid.,p. 382. IŒJOIXDER OF SOUTH AFRICA 353
50. As far as the Catholi<::Church is concemed, Applicants are correct
in sayin~ that certain archbishops have been critical of Respondent's
attitude . Applicants do not, however, mention that other prominent
men in the Church fmd no objection to the principles of Respondent's
policies. On I8 February 1964 Archbishop W. P. Whelan, Director of
Press, Radio and Cinema of the Administrative Board of the South
African Catholic Bishops' Conference, issued a statement in question
answer form of which the following are extracts:
"Q. Are you disturbed by the situation in South Africa?
A. Yes, and no. Yes, in so far as South Africa bas bcen made the
object of criticism that is largely prejudiced or, to say the least,
uninformed.
Also because all the fair promises concerning other parts in
Africa have proved to be such a grievous disappointrnent.
No--becausc it is clear that the South African situation, in spi.te
of its defects, is stable, secure, and full of prospects for future
development.
I belicve that when one considers a country's socio-political
future it must always be against the background of its economic
possibilities.
In this respect South Africa offers unrivalled possibilities,
unequalled anvwhere in Africa.
For this reason I foresee a happy issue out of our current
social and political difficulties, including those arising from the
multî-racial character of our society.
Q. Will this necessarily involve the abandoningof the apartheid policy?
A. Not necessarily.
Q. But is apartheid not an injustice which must go?
A. It ail depends on what you mean hy apartheid.
Q. What do you mean?
A. It is crucial in any discussion on this subject to distinguish
clearly betwecn the idea of apartheid or separate development,
or whatever else it may be called, on the one hand, and, on the
othcr, the actual laws and regulations which the public authori
ties may make to implement the theory.
The question to be asked is whether or not injustice is in
herently involved in the policy of separate development as it is
being currcntly pursued.
Q. Is the theo,y of apartheid or separate developmentnot in itself
vicious?
A. There is no teaching of the Church in opposition to the idea of a
state composed of a number of national or racial groups, main
tained in their separate and distinct identity by the state of
which they form a part. This is clear from the Church's attitude
concerning the rights of national minorities, so hotly debated
during the first 50 years of this century. -
This was reiterated recently in Pope John's encyclical P~3:ce
on Earth. The Church has often declared that public authonttes
1IV, p.596.354 SOUTH WESJ' AFRICA
have an obligation to assist the cultural and racial groups in a
pluralistic state in their distinctive development.
Q. Can it be said that the Church does not regard the destruction of
such groups as a matter of indi[jerence?
A. That is correct. The Church regards as immoral any policy aimed
at levelling such ethnie groups into an amorphous cosmopolitan
mass.
The Bishops of the United States have even gone so far as to
say that these heterogeneous racial and cultural groups have an
innate right to exist.
This is also the attitude taken up by the United Nations in
1948-49 when it condemned genocide, which was extended in
meaning to include the physical destruction or enforced in
tcgration not only of racial groups, but of national and religious
groups as well.
Q. Has South African 'apartheid' been otficially condemned by the
Church?
A. ln 1958, Catholics were informed by the chairman of the ad
ministrative board of the South African Catholic bishops'
conference that they were perfectly free to vote for any of the
parties contesting the general election.
This response could not have been given if any party had been
judged to be advocating a policy which, considered as a whole,
was immoral.
Q. But does not the policy of separate development, which involves
extensive Government interference in the lives of so many individuals
bring w-ith it necessarily an undue infringement of human rights?
A. lt is difficult to know with certainty.
The highly complex structure of modern society has forced
governments everywherc to interferc more and more in the lives
of their subjects.
This is especially truc of the welfare state, where virtually
every aspect of life is regulated by public authorities of different
kinds.
Exactly where the boundary line lies, beyond which a govcrn
ing body may not legitimately go, is imposc;ible to discern in
general.
1t has to be judged in each particular case. So we read in
Pope John's encyclical Peace on Earth: 'Indeed the whole reason
for the existence of civil authorities is the realization of the
common good. it is clearly nccessary that in pursuing this
objective they should respect its essential elements, and at the
same time conform their laws to the needs of a given historical
situation.'
Q. Surely 'apartheid', which denies the democratic prinâple of one
man, one vote by excluding Bo per cent. of the population of the
electorate, cannotbe reconciled with Christianity?
A. The first point to make clear is that the Church has never
considered democracy to be the only form of government
compatible with Christianity. REJOINDER OF SOUTH AFRlCA 355
In Peace on Earth, Pope John wrote: 'It is impossible to
determine once and for ail, what is the most suitable form of
government; or how civil authorities can most effectively fulfil
their respective function ...
In determining the structure and operation of government
which a state is to have, great weight has to be given to the
historical background and circumstances of given political com
munities, circumstanccs which will vary at differcnt timcs and
in different places.'
Even in a State which is democratic in structure, the one man,
one vote principle is not always desirable.
Thus the Pope goes on: 'It is in keeping with thcir dignity as
persans that human beings should take an active part in govern
ment, although the manner in which they share in it will depen<l
on the level of development of the political community to which
they belong.'
\Ve know, for instance, how restricted the electoratc was in
ancient Athens: the home of democracy; and even to-day it is
not considered a grave injustice that women in Switzerland have
no vote.
In recent tiincs wc have seen too many cases of the one man,
one vote slogan heing used as a pretext hy demagogues to seize
power which they exploit for their own ends.
A democracy based on a wide electorate seems to secure the
common good only in highly developed and homogeneous
societies. This is frcely acknowledged in Africa.
This, too, was in the minds of the South African bishops in 1952
when they declared that 'the great majority of non-Europeans,
and particularly the Africans, have not yct reached a stage of
development that won.Id justify their integration into a homo
geneous society with the European.
The association of men, coming together in societies, gi\·es rise
to other rights which can be termed secondary, derivative or
contingent. They vary greatly according to the type of society
evolved, the recognition accorded them and the qualifications
necessary to possess them.
'Among such are to be included the right to vote in the election
of legislativc bodies.'
ln South Africa therc is a growing tendency to accord to non
Europeans an active participation in the affairs of the country.
That these diffcr for different groups isin keeping with Pope
John's statement quoted above.
ln the Cape, the Coloured people have elected representatives
in Parliament. The recent establishment of the Transkeian
Parliament, with its considerable power of local government, and
the formation of the National Indian Council, are further new
beginnings 1.''
51. Archbishop Whelan's statement gave rise to considerable comment
and discussion. Itwas welcomed, inter alio,, by a regular contributoi to
a Catholic .monthly who wrote:
t The Cape Times,19 Fcb. 1964. SOUTH WEST AFRICA
"As I see the matteT, the National Party has, since Dr. Verwoerd
attained control, changed radically as regards its racial policies. The
exaggeratcd segregation policy under permanent European domina
tion oi the past has changed completely to a policy of <lividing up
South Africa into a number of sovereign indcpcndent Bantustans
and one European State. I am glad that the National Party has
turned a somersault. It means that all idcalistic objections from
'moralistic' circles fall away, and that the whole matter can be
discussed on a purcly tcchnical level. I finclit clifficult to understand
how even the most serious·idealists can conclemn the Govemment
when it wishes to grant fatherlands to specificd population groups.
To provide a people with a fatherland is certainly no moral trans
gression 1• • •
";\Iillions of us-perhaps ail of us--are of the opinion that the
racial situation in our country cannot remain as it is at the present
moment . .M.ostof us are also aware that whate,·er change is brought
about it cannot occur with one clap of thundcr. Bcforc us we have
a clcar choicc of three ways: unconditional complete integration
in the social, economic and political spheres, of all our racial groups
('Shakc the Bottlc'), conditio:1aland partial integration, or: Separate
Developmcnt. Evcry citizen-alo,o every Catholic-is completely at
liberty to make his own choice.
In my particular circumstances it is almost self-cvidcnt that I am
acquainted with the political convictions of many of my co-religio
nists. I am fully aware of the fact that ail the political parties in
the Republic have Catholic supporters. lt is not in the least my
intention to sail under false colours. I p~r,mnally do certainly not
support the National Party, but the assumption that Catholics must
by rcason of their faith oppose the prescnt Government is the most
complete nonsense. To be completely candid, the most fiery Natio
nalists I know are Catholics. In passing, I cannot help thinking of
my highly respectcd friend, a priest living somev,·here in Natal. He
sometimes givcs me a very formai scolding if I criticise the National
Party in public 2." (Translation.)
52. Rcspondcnt will conclude this discussion of trends of thought
among churches in South Africa by quoting a .Jewish religions leader.
Rabbi Singer of Johannesburg said in an address at the Adas Congrega
tion Synagogue. Connecticut Avenue and Porter Street, \Vashington, D.C.,
on 8 November 1957:
"i\lany of you might have gained the impression that some of the
laws enacted in South Africa have a rcpressive or discriminating
effect; but I want to impress on you~and I say this from a pulpit
of the House of God-that no single Act has been passed in South
Africa which is not wholly intended to protect people who are unable
to protect themselves 3."
1 Die Brug Tussen Protestant en Katolîek, Jaargang 13, Nr. 4, Apr. 1964, p.4.
z Ibid.,p. 5.
' South A frica Today (newsletter issued by the South African Informat·Adviser,
Ottawa}, 31 Dec. 1957, p. 10. REJOINDER OF SOUTH AFRICA 357
53. The present discussion relates to trends of thought amongst South
Africans, and for that reason views expressed by foreign churchmen 1are
not referred to herein. Respondent nevertheless wishes to point out that
acknowledgement of the justice and equity of the policy of scparate
development is found to an increasing extent also among religious leaders
in other parts of the world, as will be shown in due course 2•
E. Authors and Journalists
54. From what has been said heretofore, it will already be obvious that
the samc divergence of political views would be found among authors and
journalists as among other sections of the population. Applicants quote,
in this catcgory, i\fr.Alan Paton 3,Mr. Stanley Uys 4, l\1r. Patrick van
5 6 7
Rensburg ,Mr. Colin Legum and an editorial from The Star •
Refcrencc has already been made to the active political career of Mr.
Paton 8• The Starisa newspapcr published in Johannesburg. Politically it
supports the opposition, and many of its leading articles are critical of
governmcnt policy, or at least certain aspects thereof. Needless to say The
Star is not the only newspaper in the country which supports the oppo
sition parties-in a country in which freedom of speech operates, and
which is faced with complex and contentious problems, one would expect
9
a certain amount of newspaper criticism •By the same token, one would
also cxpect ncwspaper support for government policies, and this expec
tation would also not be d.isappointed. Great newspapers such as Die
Burger, Dagbreek, Die Vaderland, and others support the princip\es of
government policy and normally also the detailed application thereof.
All these newspapers employ journalists and columnists who have written
in favour of government policies. Had Applicants really attempted a
"fairly selectcd cross-section of evaluations of apartheid" 10 by authors
and journalists, they would have been cornpclleclto devote a considcrable
part thereof to views of writers who advocatc or propagate the policy of
separatc dcvelopment. Instead, they Emit themselvcs to opponents of
governmcnt policy, and even there they show poor discrimination in their
choicc of persons. Thus they under-represent the category of responsible
and influcntial critics, and concentrate on nonentities hke Patrick van
Rensburg and persans such as Stanley Uys and Colin Legum who have
attained a certain measure of notoriety from the very irresponsibility of
some of their writings, or their extreme views on political conditions in
South Africa. It is, for example, interesting to compare the extracts from
1Save thosc who hold or ]lave held office in South Africa for s01:nlength of time.
Vide, e.g., para.42, supra.
2 Vide Chap. VII, paras. 29-3r, 33-35, infm.
3 IV, p, 287.
• Ibid., pp. 287-288.
5 Ibid., p288.
6 Ibid., pp. 288-289.
7 Ibid., pp. 597-598.
s Vide para. r5, supra.
9
Indeed, had Applicants wished, they might easily have culled much more un
bridled criticism of govemment policies from the editorial pages of certain South
African newspapers.
ioIV, p. 277.358 SOUTH WEST AFRICA
the writings of Uys and Van Rensburg 1 with the following quotation
from a leading article in The Star, also one of Applicants' "authorities":
''The success of Transkei self-rule has now become as important to
Africans everywhere as it is to the Govemment ...
What matters now is that both [the Government and the Bantu]
want it to work, and so, now, does a large part of the White popula
tion which does not share the Nationalist belief in separate devclop
ment as a final solution ...
Self-government for overwhelmingly African areas is thus seen to
be a worth-while ob2ective for its own s:ike. Economie de,·elopment
is even more so ."
55. Although the pro-Govemment press is predominantly in the Afri
kaans language, the policy of separatc de,·elopment has often been
defendcd also by English-speakingjoumalists. Among the latter, reference
may be made to A. W. Steward, who wrotc recently:
"\Ve who support apartheid have searched our hearts and we
firmly bclieve that separate national development is the only solution
to our problem-that it is the only policy that will avoid disaster
and safeguard for both black and white their political rights. And
now may I just quote a few words from General Smuts. These are
the words: 'It is useless to try to govem black and white in the same
system· 3."
56. Another English-speaking commentator is H. l\laclear 13ate. who,
in a book entitled South Africa witlwut Prejudice, wrote, inter alia, as
follows:
''To sum up apartheid: the main points are that it is not a new
policy but traditional and has the backing of the overwhelming
majority of South Africans. The South Africans, because the ratio
between black and white is something like four to one (aggravatcd
by four hundred thousand Indians and one million coloured people),
believe that intermingled living would inevitably lead to their
submersion, which they are naturally not prcpared to accept. They
are equally aware that a policy of oppressi )Il is as immoral as it is
impossible. They are adamant that a policy of integration or
assimilation is unthinkable and repulsivc to black and white ...
Having had three centuries of the closest association with the Bantu
the South Africans assert that they arc better able to understand
their own problems than any other race and that the only equitable
solution to the racial problem in South Africa is apartheid which
ensures to both black and white the mr.:ans of continued existence
è\vithincreasing prosperity and in an atmosphere of goodwill 4."
57. The views of Afrikaans-speaking journalists have unfortunately
only seldom been expressed in the English language. One such instance is
the article by W. van Heerden, to which reference has been made 5•In
this article the author commences by stating the following fondamental
consideration:
1
IV,pp. 287-288.
- 1Th11Sta'i-, 31 July 1964.
l;Steward, ,\., The Challenge of Change (1962), p. 48.
• Bate, H. l\laclearSouth Africa wi.lhout Prejudice(1956), pp. 122-123.
' Il,p.46g. REJ0IXDER OF SOUTH AFRICA
359
"The basic viewpoint underlying the concept of separate White
and non-White states in South Africa is the belief that, whatever
theories may be held to the contrary, it will nevcr in practice be
possible for Europeans and Africans to govern a common homeland
together to the satisfaction of both. Either the one or the other
will always consider himself at the wrong end of the stick, and
racial injustice, whether imaginary or real, has right through history
proved to be the most instant agent to set human emotions aflame
as well as the most powerful force to keep racial consciousness
alive 1."
After considering the background of, and justification for, separate
development, he expresses the following optimistic view:
"There can be little doubt that, should the Black and White races
of this country succeed in sharing a subcontinent on the lines
indicated by the Transkeian agreement, Southern Africa can develop
into one of the great comrnonwealths of the world. With the White
man's contribution of know-how, of organizing ability and enter
prise and of human values, and with the virility, youthful ambition
and manpowcr that the Black man can add, there is hardly a limit
to the possibilities ahead. With world confidence assured and with
natural resources practically limitless, we have a future to share
which only our own denseness can deprive us of z."
58. As a random example of pro-government editorial writing, reference
may be had to the following translation from a leading article in Die
B11rger:
"The Government's policy of Bantu homelands is finding in
creasing acceptance, also outside the ranks of the National Party,
as at least a contribution towards a solution of the South African
racial problem. This acceptance is found in foreign countries. It is
found in South Africa among large numbers of Bantu both within
and outside the Bantu homelands. It is found in a newspaper like
the Johannesburg "Star", whose attitude is not condemned by its
readers. It is also encountered in intellectual circles which could
never yet have been accused of supporting the Government.
Briefly, a new outlook on the Bantu homelands policy and conse
quently a new outlook on the nature of the South African problem
has becn a striking feature of the South African polîtical pattern
during recent ycars 3." (Translation.)
59. Further cxamples from the writings of South Afriwn journalists
and authors, both Afrikaans- and English-speaking, who have expressed
support for the policy of separate dcvclopmcnt, or certain aspects thereof,
could be givcn ad ùifinitum. However, the information and quotations
set out above should suffi.ceto establish beyond doubt that Applicants'
claim of providing a "fairly selected cross-section of evaluations of
apartheid" by South African authors and journalists, is entirely un
founded.
1 van Heerden, \V., "Why Bantu States?",optima, Vol. 12, No. 2 (June 1g62),
p. 59.
2 Ibid., pp.64-65.
3 Die Burger, zo Oct. 1964. 36o SOUTH WEST AFRICA
F. South Mrican Bantu
60. Itwill be convenient at the outset to give a short exposition of the
various political trends arnongst the South African Bantu. To a certain
extent these trends correspond with political movements amongst the
Europeans. Thus, for example, both the Progressive Party 1 and the
Liberal Party 2 are multi-racial, although the extent of their support
among the Bantu population is probably not large.
61. In addition there exist certain all-Bantu organizations. The fi.rstis
the African National Congress (A.N.C.) which was established in 1912
with the object of promoting the advancement of the Bantu people
politically, economically, sociallv, educationally and industrially. In
recent ycars this organization has"become more militant and bas increas
ingly oeen subject to Communist influence. In I96o it was declared an
unlawful organization. Ex-chief Albert Luthuli 3 was at that stage its
leader and Nelson :Mandela" its de1;mty leader. After its banning, the
A.N.C. established a military section called the Umkonto we Ziswe
(Spear of the Nation) the leaders of which (including the said l\landela)
were subsequently charged with and convicted of various offences arising
from a plan to foment rebellion in South Africa. In his judgment at the
trial of these persons 5, Mr. Justice de Wet (Judge-President of the
Transvaal Provincial Division of the Supreme Court) described the
creation of Umkonto we Ziswe as follows:
"According to the evidence of No. 4 Accused [Govan Mbeki],
which in this respect appears tome to be true, it was decided at the
meeting of the Executive or Central Committee of the A.N.C. in June
of Ig6I to 'allow'its members to form a body to engineer and direct
acts of sabotage against targets described as 'symbols of apartheid'
which included buildings bclonging to the Government and to the
Bantu Affairs Department and communications including electric,
telephone and railway signal installations. lt is also clear from his
evidence, considered in relation to the statement of No. I Accused
[Nelson Mandela] and in relation to the documentary evidence, that
the latter was the prime mover in forming the organization. The
latter had been deputy leader of the A.N.C. prior toits being banned
in I960, but had continued his activities. It appears tome from the
evidence and documents that the leader of the A.N.C., Luthuli, was
informed about the activities of the Umkonto and consulted from
6
time to time but kept in the background ." (Footnotes omitted.)
The nature of the conspiracy with which the accused were charged,
was summed up by the learned J udge as follows:
"According to the evidence Exhibit 'R71' entitled 'Operation
l\:layibuye' (Operation corne back) was lying open on the table in
Room I when the accused were arrested. 'Thisdocument is a lengthy
1 Vide para. 7, supra.
a Vide para. 9, supra.
3 Quoted by Applicants at IV, pp. 289-290.
+ Quoted by Applicants at IV, p.29t,
5 Often referred to as the Rivonia trial after the Johannesburg suburb in which
the conspirators were arrested.
' Rivonia Judgment in the Sopreme Court of South Africa (Transvaal Provincial
Division), unpublished, pt9. · REJOINDER OF SOUTH AFRICA
one and contains a detailed plan for the \vaging of guerilla warfare
and thercaftcr a full scale rcbcllion against the Government of this
country. Part I sets out that it is clear that 'White supremacy'
cannot be ovcrthrown otherwise than by a revolution, that the
ingredients of a revolutionary struggle are present. I quote only a few
passages from this part 'The objective military conditions in which
the illovement fi.ndsitself makes the possibility of a general uprising
leading to direct military struggle an unlikely one. Rather, as in
Cuba, the general uprising must be sparked off by organized and well
prepared guerilla operations during the course of which the masses
of the people will be drawn in and armed' ... Part 4 deals with
internai organization and I quote only two passages from this part,
'Our target is that on arrivai the external force shoulcl find at least
7,000 men in the four main areas ready to join the guerilla army in
the initial onslaught. These wiltbe al\ocated as follows: Eastern Cape
to the Transkei 2,000; Natal to Zululand 2,000; North-Western
Transvaal 2,000; North-Western Cape 1,000'.'In order to draw in the
masses of the population the political wing should arouse the people
to participate in the struggles that are designed to create an up
heaval throughout the country' 1."
That Umkonto we Ziswe, or, at any rate, its author, Nelson !lfandela,
was under Communist domination, appeared clearly during the said trial.
In this regard the learned trial Judge stated:
"[The witness 'X'] said that when he addressed the Natal Regional
Command Accused No. I [Nelson ~fandela] said that persons of the
A.N.C. and Umkonto who visited other African countries should be
careful not to admit that they were Communists or sympathised
with the Communists and instanced the case of one Mtcha.li who was
cold-shouldered because he said he was a Communist. Accuscd No. I
[Mandela] was at great pains to deny that he was a Communist, had
Communist sympathy or that he had said this, but it is interesting
to compare what be writes in his report on the Pafmecsa ConferenŒ
under the heading 'Political Climate' namely 'Clear that in this area
there are great reservations about our policy and there is a wide
spread feeling that the A.N.C. is a Communist dominated organi
zation'. I may add that I share this feeling after hearing all the
evidence in the present case. In addition there is a lengthy exhibit
in the writing of Accused No. I [Mrmdela) entitled 'How ta be a gaod
Communist'. I have no doubt that the evidence of the witness 'X' is
correct ."
62. Another Bantu terrorist organization which is of relevance for
present purposes is the Pan-Africanist Congress (P.A.C.). This organi
zation was established in 1959 after a split in the A.N.C. The founders of
the P.A.C. were reputedly appased ta the A.N.C. palicy of co-operating
with organizations of Indian, Coloured and European persons, as well as
to its Communist affiliations. Despite the protestations of some of its
leaders, it seems clear that the P.A.C. is an extremist and exclusive Black
nationalist organization, with strong anti-\Vhite and anti-lndian policies.
1 Rivonia J udgment in the Supreroe Court o! South Africa (TransvaalProvincial
Division), unpublished, pp. 23-24.
2 Ibid., pp. 38-39. SOUTH WEST ..\FRICA
The latter aspect appears even from the article from which Applicants'
quotation of Robert SobuJ...·wet,he ex-President of the P.A.C., is derived.
The author of the said article states:
"The few important gaps in the theory of the Pan-Africanists had
been providcd in an earlier addrcss by Mr. Zack Mothopcng, latcr
to be c1ected to the or~anization's national e.,,ecutive. He said there
could be no co-operatlon at this stage between the Africanists and
Whites until the contradictions between the national groups had
been resolved by the Africans. The Africanists, he said, wanted a
non-racial democracy in which the African majority would rule.
They did not believe in race, only in humanity.
And hercin perhaps lies the Africanist's greatest responsibility: to
resistthe temptation to manipulate languagc and encourage words
like 'African' to mean ail things to all men. If they are sincere in
their refutation of 'race', then they should encourage Africans of
Indian, English, Dutch and other extractions to jointhem, instead of
vigorously discouraging them as they are doing now. lt is disquieting
that there are men in their ranks like l\fadzunva, who is on record as
saying 'no White man is sincere'. •
The Africanist line implies somehow first- and second-class
Africans, with skin-colour being a factor in classification. In other
words: 'Aliwho give their allegiance to Africa are Africans, but some
Africans are more African than others' 1."
63. The racial exclusiveness of the P.A.C. appears also from a docu
ment written in 1960 by the said Sobukwe white in gaol and which was
discovered by the authorities before it could be smuggled out. Extracts
from the document are cited solely to indicate the unabashed attempts at
stirring up hostile feelings against other groups. Regarding the Indians,
he wrote:
"Their present day politics consist of (chasing with the hound and
running with the hare).
They will bribe the oppressor for fayours and dole hundreds of
pounds to any seemingly powerful organisation of the oppressed
people so as to avoid disturbing occurrences that may affect them
adversely.
A common practice among them is that of claiming to be of pure
lnclian blood. Here also you begin to see the influence of their culture.
Because of the fact that lndian women must at all times be cither
expectant or having babies, and because Indian women must always
stay indoors, particularly after sunset, the bulls [go]to the market to
satisfy their sexual needs on the African women. This is one of the
factors that led to the Durban riots of 1949.
Indians seduce and render prcgnant African women and then
disappear leaving the poor women to face the insult. That is how
2
they keep their so-called purity ."
1 Rodda, P., "The Africanists Cut Loose", A/rico. South, Vol. 3, No. 4, July-Sep.
1959, pp.25-26.
1 Sobukwe, R., Unpublished manuscript, 196o, p. 3. (Errors not corrected.) REJOINOER OF SOUTH AFRICA
And regarding Coloureds:
"... the 'Colottreds' in particular adopt a hostile attitude towards
Africans. The maiority of these are in the Cape and they regard
, themselves as superior to the African. Many of them tend to play
white, and wish to be regarded as 'Amper Bosses'. [Nearly bosses.l
Their culture of course is that of the Afrikaner-a very backwarà
white tribe.
They know no politics other than Brandewyn. [Brandy.] They will
put up a new organisation whenever they entertain a politica)
grievance which is more else a request that a additional light be
put up in one of the dimly lit streets. They will do anything to be in
the good books of any Government ."
His views on Europeans arc equally uncomplimentary. Thus he wrote:
"Europeans are ruled bv fear that once they lose their positions
as oppressors, the revcngé of the African people who have for many
years been subjected to ruthless tortures of body, mind and soul,
may be uncontrollablc. They will therefore actively try and maintain
the status quo, especially because they benefit from it. The strongest
group in this type of Europeans arc those who still believe that they
can maintain their position in this country indefmitely if only their
machinery is in orclcr ...
There are a few of the European minority who realise that it is
later than Verwoerd and Graaf think. They realise that the forces
of African Nationalisrn will soon overpower the clay Cod known as
'White Domination'. To them the solution lies in making allowances
to certain Africans so that once these priviledged Africans exist, they
will then act as the buffers, if not the shock absorbers. There will
then be a devision in the liberatory front. This will then rcmove
the eyes of the African from the genuinc issues involved to such
frivolous matters. This is the attitude of parties like Progressives
and Liberals 2."
In the same document, Sobukwe also took a passing swipe at the
leader of his main opposition group in extremist African politics, ex
3
Chief Albert Luthuli, leader of the A.N.C. Luthuli, according to
Sobukwe was one of the Chicfs "... who praise the Government for its
abundant offers to the so-callccl Ban tu people" 4•
In pursuance of its political objectives, the P.A.C. (or, as it is also
known, Poqo) has been responsible for a number of particularly savage
murders, for the rnost part of Ban tu who do not support its aims 5.
64. To conclude this brief survey of organized political movcments
among the Bantu, reference should be made to the Transkei where the
Transkei National Independence Party under Mr. i\fatanzima, the Chief
:i'llinister,advocates a policy of developing the Transkei purely for the
benefit of its Bantu inhabitants, whereas the opposition Democratic
Party under the leadership of Chief Victor Poto, professes to be in favour
1 Sohukwe, op. cit.p. 3.
2 Ibid.,p.5.
' Vide para.. 6rsupm.
• Sobukwe, op. cit.p. 6.
5 Vide R.P. 5r/r963, p. 7 (paras.86 and 87). SOUTH WEST AFRJCA
of "multi-racialism". This is, however, a strange brand of "multi
racialism", of which Chief Poto himself recently said:
"\Ve must realise that the white people who should corne here are
those who will be willing to be under the government we propose to
set up in the Transkei, a government that will always be in the hands \
1
of the black man ."
And when confronted with the accusation that they would have to
invite all races to be citizens of the Transkei, the Democratic Party de
clared through Mr. Rajuili, one of its front benchers, that "nobody said
we are going to invite all races''2•
65. It is significant that Applicants' "cross-section" of opinions ex
pressed by "South African 'Natives' ", likewisc as in the case of their
other "cross-sections", is completely one-sidcd. Tt is not only entirely
devoted toopponentsof Respondent'spolicy, but is weighted with extrem
ist politicians representing a small section of militant revolutionaries,
to the virtual exclusion of responsible critics of government policies or
certain aspects thereof, not even to mention the substantial and in
creasing number of supporters, to a greater or lesser extent, of the policy
of separate deve!opment. The existence of such support appea1-s even
from statements by persons who are certainly no protagonists of govern
ment policy gencrally. An example of such a persan is Mr. M. T. :M.oerane,
a Bantu who is cditor of the newspaper World published in Johannesburg.
He writes:
"Everywhere I meet friends they ask me: 'Is the Transkei getting
anywhere?' I, tao, was asking that question a few weeks ago. My
answcr today is: Yes! The Transkei has nothing to !ose from self·
government; and it stands to gain.
The Transkei has already achieved one thing-a stable goYern
ment with a determined cabinet and a challenging, powerful
opposition.
These are not amateurish clowns mimicking government.
In debate, programme and responsibility, this Govemment
compares favourably with any parliament, Cape Town and other
African independent states included. I have seen many of these in
action.
Many people have called him a stoogc but Matanzima's Govern
ment has been able to gain important concessions and advances.
Matanzima is taking the Republic Govemment at their word.
He realises that his posltion of dependency is not ideal and he is
set on a course to full independence soon.
Mr. B. S. Rajuili, one of Chief Poto's whips in the D.P. [Demo
cratic Party], would like Bantustans on the pattern of the Transkei
established quickly.
Not so long ago, many would have thought such a suggestion pre
posterous.
Many sons of the Transkei have refused to have anything to do
with this experiment, on principle. They regard it as a mischievous
diversion from the true cause of African freedom ...
1 Debates of the TranskeiLegislative A ssembly,2nd Session-1st Assembly, 5
May ta 9 June 1964, p. 13.
2 Ibid .. p. 33. REJOIXDER OF SOUTH AFRICA
While the struggle for ultimate solutions is going on, however,
Bantustans may have some contributions to make.
A Parliament like the Transkei docs, for the first time, give
Africans a voice in their affairs and some executive power, some
recognition of citizenship rights.
Suppose ail the planned Bantustans-in Zululand, Northern
Transvaal, Ciskei, etc.-were established, these areas would also
have a voice, and an education and these parliaments could make a
powerful voice with a sizeable population behind it.
AU that would be necessary for a truly African voice would be to
give urban Africans their version of political freedom.
At this point the Africans could at least express their views
unitedly. They would have some representation, unlike now. Dr.
Verwoerd could bring about his "Commonwealth of Africa" govern
ment. Thcre would be parties with which to negotiate ."
66. In a recent work, Dr. Ben Marais, Professor of History of Christ
ianity at the University of Pretoria and a wcll-known commentator on
South African questions (and, incidentally, also a person with strong
reservations on certain aspects of Government policy), wrote as follows:
"There is not the least doubt that the Bantustan angle of apart
heid or self-development bas gained considerable support from the
African groups themselves and from many foreign quarters ...
It gave many Africans the feeling that the whites really mcan to
give them freedom and independence. The fact that they will have
their own parliament and that African administrators are trained
have resulted in a great measure of co-operation and enthusiasm.
lt has also greatly strengthened the moral basis of the philosophy of
apartheid or separate development. Many Africans have accepted
it as proof of the white man's or Govcrnment honesty 2."
67. Reference bas been made to certain views expressed by The Star
(a Johannesburg newspaper quoted as an authority by Respondent),
regarding the desirability of the Bantustan policy 3•An earlier article by a
Bantu contributor to the same newspaper exemplifies the extent of
support for some vital aspects of Respondent's policies even among
people who profess to be opposed thereto.
During 1959, ~fr. l\Iakgona Tsotlhe wrote:
"... I can recall no thinking African who would condemn residential
apartheid. It is this particular segment of apartheid that has been
and still is, a blessing in disguise.
Prior to the enforcement of the Group Areas Act of 1952, many
African familics in Johannesburg livcd in the backyards of their
White landlords. They led an aimless life. And the few who showed
signs of striving for an idealistic way of life, soon had their aspirations
woefully bedevilled by the concomitants of the freedom they
enjoved in the backyards.
In contrast today, the African in his present townships, where he
has been allowed to trade among his people as be pleases without
1 The Star,27 July 1964.
2 l\IaraisB., The Two Faces of Africa (1964), p. 34.
3 Vide para. 54, supra.366 SOUTH WEST AFRICA
any fear of foreign competition, is achieving an epoch of economic
self-realization.
Not only bas he been given the privilege of renting a bouse
indefinitely in the townships, but is also authorized to build a house
of bis dreams in some areas.
Perhaps few. particularly among the \\1hites, realize that places
like the Dube township are miniature cities where the people have
corne to realize their real selves in practically all walks of life
something to which they could not have attained were they left
indefinitely in the backyards of the White landlords in White areas.
That is the advantage residential apartheid bas brought. But I must
not be taken as favouring apartheid in general-it is simply that
we should face reality as it presents itself 1."
68. Among the Bantu supporters of the policy of separate develop
ment, the most influential at the moment is probably Chief Minister
l\fatanzima himsclf. Many of his speeches and statements are available,
but it will suffice to rcfer to a recent address by him, a report of which
reads as follows:
"Sincc the present Transkei Government had taken over there
had becn unprecedented peace in the territory, the Chief Minister,
Chief Kaizer Matanzima, said in Umtata last night, adding: 'This
goes to the credit of the policy which has received unwarranted
attacks from people ignorant of the South African set-up.'
He said that the people of the Transkei accepted the policy of
separate development and requested that it be applied.
'The Republican Govemment never imposed it on us', he said.
'\Ve askecl for it because it is the only realistic way of bringing
about cquality among ail races in South Africa on the basis of
2
parallel development' ."
Attention is im·ited to other statements by Mr. Matanzima quoted
above 3•
69. Another prominent Transkeian personaJity, to whom reference
may be made by way of example, is Chief Botha Sigean. In 1959 he said
in a speech before the Transkei Territorial Authority:
"\Ve have accepted as our own the policy of Separate Development
with its Bantu Authorities, Bantu Education and other co~nate
administrative measures. \Ve have accepted this policy not by
compulsion, but voluntarily because it accords full recognition to
Bantu cultural institutions; to that which is our own and which we
endear-our customs, our laws and our language. \Ve are deeply
irnpressed with the many and important benefits which yon have
made possible for us, under this policy. lt is our wish and endeavour
to live in peace and friendship with our fathcrs, the Europeans of
South Africa. The only way to bring about this hannonious settle
ment between the two cultural groups is that of separate dcvelop
ment.
\Ve can assure the non-european leaders in Africa and the Bantu
-----
1 The Star.25 Xov. 1959.
2 Ibid., 15Oct. 1964.
s Vide Chap. V, paras. 68-6g, supra. REJOINDER OF SOUTH AFRICA
organisations in ·south Africa who attack the policy of scparatc
development, that we are not in sympathy with their actions.
Separate Development is also our policy and consequently they
attack us as well 1.''
And, addressing the same body in 1961, he said:
"Now, the question might be asked: Is it not time that this
Authority maintained a definite policy-_----thepolicy of separate
development? By separate development 1s meant that the people
should manage their own affairs and shall be thcir own destin y. This
policy the Bantu people have aspired to during the last decade. It is
the policy envisaged by the Government and in my own submissiory.
it is the only policy which can lead to the practical solution to race
conflicts2• '' ·
70. Addressing the Zoning Committee appointed in terms of section Go
of the Transkei Constitution Act, 1963, Dr. Gwele, a medical practitioner,
said:
"First of all I would like to express the view that we arc very
thankful to Providence and the Rcpnblican Government for this
very fine idea of parallcl development, because at least it gives us
something to look forward to as Non-Europeans. For a very long
tiine. wc have experienced lipservice promises from the various
Governments we have had but todav, under this idea of self
developmcnt at least we Non-Europeans can look forward to
something tangible, and what is most cncouraging to us is that, as
far as wc have observed in many parts of the Republic, the promises
that have been made by the Govcrnment have gone forward in many
avenues of life ... J"
71. In his customary Christmas message to the Zulu people in De
cember 19.59, Paramount Chief Cyprian Bhekuzulu, wrote, inter alia:
"Zulu, we have been living in a state of uncertainty for many
gencrations and during that periocl wc did not know wherc we stood
in common society. \Ve were roarning around aimlessly because no
definite way had been shown tous which we could walk along.
To-day however, the position has changed, a road has been opened
tous, our own road, a road that everybody can see.
Through this policy we as a Nation can regain our former self
respcct, pride in our National traits, love for our folk-lore and
obediencc to authority. There is a lot that is good and noble in our
old traditions. Let us retain the good of the past and build our future
on it. Every Nation in the world has its traditions and even battles
have becn fought to safcguard those traditions. Why should our
traditions thcn be looked upon disrespcctfully?
Zulu, in terms of the present policy in this country as a whole, the
1
Transkeian TerritorialAuthority, Proceedings and Reports of Select Commillees
at the Session of z959: Annual Reports and Accounts for 1958 and Estimates of
Revenue and Expenditurn for 1959-1960 (1959), pp. 30-31.
2 Transkeian TerritorialAuthority, Proceedings and Reports of Select Committees
at the Session of r96r: Annual Reports and Accounts for 1960 and Estimates of
Revenue and Expenditure foy 1961-1962 (1961), p. 103.
3 Departmental information. SOUTH WEST AFRICA
368
road before us is clear. Everybody can sec it and everybody should
be able to understand it. Development on separate but parallel lines
1
makes for orderly societies ... "
72. On 8 December 1964 the Tswana Territorial Authority unani
mously adopted the following resolutions:
"This Authority, representing approximately one million Tswana
people in the Republic of South Africa, wishes to place on record-
(a) its unswerving loyalty to the Government of the Republic of
South Africa,
(b) its full support for the poliey of separate development, and
(c) undertakes to carry out to the full, its share of the whole
programme of separate devclopment ."
73. That Respondent's policies enjoy increasing support also among
the urban Bantu, appears, inter alia, from the following passage by
3
"Mhloli", a Bantu columnist of The Star •
"There has, in the Iast few months, been a noticeable swing among
African urban leaders in faveur of the urban Bantu council system
which, it is felt, would not only give Africans more local self-govern
ment but would also enable thcm to improve the running of theîr
townships.
Thinking African businessmen in Dobsonville, including ex-board
member and ex-school-teacher, Mr. A. L. llfolefe, have condemned
the present advisory board system as archaic. They would like to see
the system of the Urban Bantu Councils put into practice in this
township as soon as possible.
According to l\Ir. Molefe: 'The Urban Bantu Council system is the
onJy one to give us a break-through to a complete say in our affairs.'
Mr. Molefe is strongly of opinion that those African townships
which have accepted the U.B.C. system will in the long run benefit
immenscly. For more than 10 years he served on the local advisory
board and it was largely through his great influence that Dobson
villc bccame what it is today.
'The aclvisory boards are useless and do not conform with the
modern way of thinking and trends. To-day the emphasis is on
separate development' ."
74. The Bantu Advisory Board of Brakpan passed a resolution in
1963 expressing the "warm appreciation" of the Bantu community
because the Town Council of Brakpan "implements the policy of the
Government, for its active contribution towards the achievement of
Govcrnmcnt policy and for the sympathetic consideration given to re
quests" 5• (Translation.)
75. In a recent article, Mr. D. E. 1\Iabudafahasi, Lecturer in Sociology
in the University CoJJegeof the North at Turfloop, wrote:
1 Bantu, No. 12 (Dec. 1959), pp. 12-13.
2Departmental information.
3\.Vhich, as alreadynoted, is a newspaper relied upon as an authority by Appli
cants. Vide para. 54,supra.
• The Star,3 Nov. 1964. Vide also 25 Nov. 1959, article in the same newspaper
referred toin para. 67,supra.
-~Die Transualer,r7 i\Iay r963. REJOINDER OF SOUTH AFRICA
"Since its implementation, the polie.y of Separate Development
has already provcd its worth against humanitarian arguments from
annchair speculation. I cannot imagine what would happen in South
1
Africain the absence of this polie.y ."
76. As a final example, Respondent will refer to an article by Mr.
Obcd M. Makapan, a prominent Bantu leader and principal of a Bantu
school in Johannesburg:
"Apartheid is a natural line of demarcation between people of a
diffe1:ent outlook and different standards of civilization, and there
fore I welcomed the Government's policy of Separate Developrnent.
I feel that this policy should be givcn a fair chance by those people
who do not know what has already been done.
Separate development is a unique chance for the Bantu of South
Africa given them by the Government. I say unique, because it is
necessary to study this idea meticulously to discovcr ail its true
values 2."
And, after discussing the progress that has been made under the polie.y
of separate devclopment in the fields of education, employmcnt in the
civil service, health, and Bantu authorities, the writer concluded:
"So, in all spheres of lifethe benevolence of apartheid can be felt,
the progress can be perccived, the success of individuals can be seen
because the foundations of development have been well and truly
laid for the even higher separate advancement of all the progressing
Bantu National units 3_"
77. From the aforegoing it is apparent that among the Bantu, as
among all other peoples of South Africa, the challenge of the country's
problems has brought forth a variety of views, some opposing the
Government, some supporting it, and some cutting across its policies.
1t is equally apparent that there is no unanimity amongst opponents of
the Government as to what would constitute a preferable policy to the
one implemented at prcsent. lt follows that, also with regard to the Ban tu,
Applicants' suggestion that the polie.y of separate development has met
with universal condemnation, must be held to be entirely unfounded.
G. South African Coloureds
78. The first major political organization among Coloureds was founded
in 1902, and was called the African Political (later People's) Organization
(A.P.O.). Its aim was to champion the rights of the Coloured people in
all parts of South Africa. In later years the A.P.O. developcd into a
supporter of the so-called non-European Unity Movement which sought
to sec.ure full citizenship rights for Bantu, Coloureds and lndians on an
integrated basis. This policy was opposed by the Coloured People's
National Union (C.P.N.U.). an organization established in 1944 for the
purpose of improving the economic, social, educational and political
conditions of the Coloured people by means of doser understanding with
1 Dagbreek en Sondagnuus, 20 Sep. 1964.
2 Makapan, O. M., "Apartheid As I See It", South Africa, The Road Ahead,
Spottiswoode, H. (Ed.) (Nov. 1960), p. r21.
3 Ibid.,p. 122.370 SOUTH WEST AFRICA
the Govemment • The C.P.N.U. did not believe that the best interests of
either race would be served by common political action between Bantu
and Coloured 1.
The president of the C.P.N.U., Mr. George J. Goldin!?:(quoted by
2
Applicants under the heading "South African 'Coloureds'') , expressed
this attitude as follows:
"As a Coloured group we say quite clefinitely that we are prepared
to organize the immense potential field among our people and to
fight our own battles ... Unless the Colourecl people are preparecl
to share every aspect of their lives in an unreserved and honest
manner with the Natives of this country, then they have absolutely
nogrounds for making use of the numerical superiority of the Natives
for purposes of generating a social revolution 1."
The C.P.N.U.'s attitude to the A.P.O. was expressed by Mr. Golding
in these words :
"If the A.P.O. had fulfilled its true fonction, there would have
been no need for the C.P.N.U.; but since the A.P.O. has expressed
itselfagainst collaboration with the Government, and by throwing
its doors open to persons other than Coloured people, it now becomes
a conglomeration of cosmopolitan interests. with the result that it
no longer speaks specifically on behalf of the Coloureclpeople 1."
79. Althongh dissatisfied with the extent of political rights granted to
the Coloured people, it is clear that Mr. Golding supports many aspects
of Government policy. Recently he said:
"Fourteen years have elapsed since I wrote a Foreword to the
3
pamphlet 'The Coloured :ManSpeaks' • I am convinccd today, as I
was then when I spoke on behalf of my Coloured people, that therc
was no justification-moral or Iegal-in depriving the Colourerl
people of South Africa of political rights which they enjoyed for over
a century and in having the Coloured voters removed from the
Common Voters Roll ... Having said that, however, l must confoss,
in ail fairness, that since thosc far off days in 1950 the lot of the
Coloured man in South Africa has improved beyond recognition.
Leaving aside the political aspects to which l have referred I must
in all faimess state that since 1950 there has been a progressive
betterment in every aspect of the living conditions of the Coloured
people of this country ... As a result of progressive steps taken under
the present Govemment, the doors of the public sen•ice, practically
in all its branches, have been opened wide to our Coloured people.
In many Government Departments we now haYe top ranking
positions held by members of the Coloured group ...
The Govemment has created a new Department of Coloured
Affairs under the control of a Minister who occupies full Cabinet
ranking. This Department is responsible for reorientating the
attitudes of all Governmental Departments towards· the Coloured
people. This Department is responsible for protecting and developing
the fonctions and livelihood of the Coloured group. Economically
1 Hellmann, E. (Ed.), Handbook on Race HelaJionsin South Ajl'ica(1949), pp.
526-527.
2 IV, p.292.
3 Quoted by Applicants at IV, p.292. REJQI:-;DER OF SOUTH AFRICA 371
there has been a great upliftment of the Coloured people. The
Government formed the Coloured Development Corporation and by
means of large funds placed at the disposai of this Corporation,
Coloured people have been helped to take part in the economic
development of South Africa. For the first time in the history of
our country Coloured business men and Coloured controlled com
panies have been givcn financial help to establish and develop new
commercial enterprises in South Africa. In previous years these
facilities weree preserveof the White only. Today this monopoly no
longer exists. Today members of the Coloured community are
enabled to open up their own liquor stores, their own cinemas, their
own departmental stores in competition with their fellow White
citizens. There is no longerny restriction placed upon our Coloured
people. No business activity whatsoever, either in the field of
commerce or industry or farming is now closed to the Coloured man.
Govemmental help in the form of loans and subsidies arc available
to him to enable him totake his place in what was hithertoregardedas
a European preserve. Quite recently the first bank forColourcd persons
was established in this country and this particular field offers un
limited scope for development and upliftment of our people.
In the sphere of cducatîon, the Government has been generous in
building magnificent schools and making much largcr facilities
ava.ilable to our Coloured childrcn.any additional high schools have
been established in most modern and well equipped buildings and our
Coloured people have shown thcir appreciation of this by the manner
in which they have responded to filling those schools. Our education
srstem, as far as the Coloured people is concerned, is comparable
w1th any educational system in any part of the country ... The
Government has established a University College of the Western
Cape whkh has made it possible for hundreds of Coloured youths to
obtain a full University education which hitherto was denied to
them. Previously a very Iimited number of Coloured students wcre
accepted at our European Universities. Today Coloured people
can daim that every Coloured boy or girl who is desirous of pursuing
a Univcrsitv education can be accommodatcd in this Coloured
University. 'Whilst the Coloured people originally opposed the
arrangement of this separate University, by and large the Coloured
people today appreciatc the many advantages \vhich this University
has created for thcm. I have only mcntioned a few cxamples of the
improvemcnts which have been created for the Coloured people
during the past ten ycars. In all fairness I must confess that thcre
has been a sincere endeavour on the part of the Government to help
the Coloured community wherever possible. I think that the Govcrn
ment has now corne to realise the fact that the Coloured people are
partners in one South African nationalitv, that we take second
place to no other section of the South African population in our
patriotism and loyalty to our country. It is for this rcason that the
Government has, with great rapidity, improved the educational,
socialand economic aspects of our lives.
I am quite certain that, without the sympathetic help of our
Government, it would have taken our Coloured folk many more long
years of toil and sweat and frustration to have achievccl the ad
vancement which has been made in thesc last few ycars. lt is my372 SOUTH WEST AFRICA
earnest desire that the spirit of good wiUwhich now exists between
the Coloured people and the Government and generally with the
White people of South Africa should continue. Coloured leaders feel
that if this advancement in our educational, social and economic
sphcres can be maintaincd and improved, the time must corne when
the Governmcnt of the day will have a new approach to our political
rights. For the prescnt we feel that we must strive in a spirit of good
will and loyalty to our country to deveiop the already magnifi.cent
advanccmcnt which has been created for us under the present regime
in South Africa 1."
80. It is significant how many other Coloured leaders have, like Mr.
Golding, become increasingly aware of the benefits of the policy of
separate development, or at least certain aspects thereof. Thus, for exam
ple, in October r964, the following report of an address to the Minister of
Coloured Affairs by Mr. M. D. Arendse (quoted by Applicants under the
heading "South African 'Coloureds' ") 2, appeared in a newspaper for
Coloureds:
"Mr. M. D. Arendsc said that he was gratcful for the opportunity
of taking part in thanking [the Minister]. Where he had cxpressed
criticism inthe past, the Ministershould accept it in the spirit in which
it was said. He had not been happy about the transfer of education,
but now he was happy about the spirit in which it occurred. He could
also perceive the tremendous improvement in technical education,
l\1r.Arendse said.
He had opposed local committees, but now he had corne ta the
conclusion that it could serve a useful purpose to bring democratic
government to the majority of the people. The fact that he served on
the Council [for Coloured Affairs] proved his confidence and hope
that the Government was genuine in 'the socio-economic improve
ment which we are seeing'. He felt that the Coloured folk should take
up its position to render South Africa strong against the onslaught of
Black Africa, Mr. Arendse said 3." (Translation.)
Reference may also be made to the following report of a speech by
Mr. Tom Swartz, Chairman of the Council for CoJoured Affairs:
"Fruitful co-operation between the Government and the Coloured
people was the result of the policy of separate development, Mr. Tom
Swartz, Chairman. said in his opening address at the twentieth
session of the Council forColouredAffairs in Cape Town. Hementioned
the services of councillors and members of other bodies, and said,
'Five years ago this state of affairs was almost impossible-however,
a remarkable change has occurred. and many leaders who were
actively against are now actively co-operating, a fact which vindi
cates the stand which members of the Council took when they
accepted office on the Council in the midst of malicious persona!
vilification3."
1 Golding, G.J., Presidentof the Coloured People's XationalUnion: Unpublished
Statement dated r2 Xov. 1964.
2 lV, p.292.
3 Die Banier (1st ed.), Oct. 1964, p. 8. REJOIN'DER OF SOUTH AFRICA 373
Another Coloured leader, Mr. C. I. R.Fortcin, said:
"The present political climate in South Africa is in favour of the
advancc of the Coloured people with their white compatriots towards
a common destiny along parallel paths. This is completely logical
and moral for the one cannot interfere in or injure the intercsts,
wishes and aspirations of the other. This has been demonstrated by
goodwill, sympathy and generous allocation by Parliamen tofresources
for problems of administrative character in our fon-vard develop
ment and should serve as a practical indication of a completely new
healthy and promising Afrikaner-Coloured rcapproachmcnt in the
history of South Africa ."
i'.fr. Bookcr Lakey (Secretary of Die Kleurling Volksbond of South Africa
and a prominent Coloured leader), wrote in a letter to the l'lfayor and
Council of Aberdeen, Scotland, in conncction with that Council's dccision
to boycott goods from South Africa:
"The dccision portrays a completc lack of knowledge of the vitality
separate development infuses into the lives of Coloured folks which
enables them to become mastcrs of thcir own destiny in their fast
developing separate residential areas 2."
Sr. The "spirit of good will" betwcen the Coloured people and the
Government referred to by Mr. Golding has manifested itself in the
creation of political movements supporting the policy of the National
Party, particularly for the purpose of contesting elections for the newly
3
created Coloured Persans' Representativc Council . In this regard, a
recent report stated:
"The newly-formed Federal Coloured Peoples' Party issued a
statemcnt in Cape Town recently pledging to seek independence for
the Coloureds, and to encourage them to make use of the opportu
nities offercd by the South African Government's policy of separate
development.
The new party will enjoy the support of. among others, two
members of the existing Council for Coloured Affairs-Mr. N. P.
Arends of Bellville, Cape Province, and l\lr. R. H. Fischat of Port
Elizabeth.
The establishment of the Federal Coloured Peoples' Party had
been foreshadowed bv the chairman of the Council, i\frT. R. Swartz.
The granting of théfranchise ta all adult Coloureds had thrust them
into a new situation, Mr. Swartz said at a meeting of the Council. One
of the first reactions to the franchise grant was the establishment
of political parties exclusively for Coloureds.
Itis rcported from Port Elizabeth that Mr. Fischat intends to have
Coloureds throughout the Country informed of the new party and
to encourage them to register as voters for the election of the
Coloured Persans' Representative Council.
Mr. Fischat said that he was pleased to fmd that Coloured leaders
who had formerly strongly opposed the policy of separate develop
ment and who had even intimidated him on account of his accept-
1 Die Banier (2nd ed.), Sep. 1964.
2 Copy filed with documentation.
3 Establishedin terms of Act 49 of 1964. SOUTH WEST AFRICA
374
ance of the policy, were now enthusiastic for the establishment of
an all-Coloured political party 1."
And still more recently a new party was established for Coloured persons
in the Transvaal, the policy of which, according to its executive, em
braced the following:
"As the Govcrnment's policy of separate development is being
unfolded, it becornes clear that the Coloured population is receiving
ever increasing rights to manage its own affairs and to develop as a
separate population group which must scek its own salvation ...
A policy of multi-racialism and liberalism must eventually destroy
the Coloured population.
We reject completely any liberalist or integration policy of any
political party or group in the Republic.
We accept the policy of separate development as the only principle
upon which each population group in the country can develop fully
and upon which a future can be built by the Coloured people for the
Coloured people 2."(Translation.)
Similarly, it was reported:
"A new political party for Coloured people, called the Repub
likeinsc Party, has becn formed at Beaufort West. Claiming a mem
bershipof ncarly 300, the party 'wholchearteclly' supports the policies
of the Government 3."
82. Itis apparent from the foregoing that among the Coloured popu
lation, as among al! other groups or sections of the population, there
exist wide differenccs of opinion rcgarding the policv of separate develop
ment or of particular aspects thereof, and that, contrary to the impression
sought to be created by Applicants, Respondcnt's policies command a
substantial and increasing volume of support.
H. South African Asiatics
83. Arnongst Asiatics in South Africa, as among ail the other groups
dealt with herein, the mattcr of race relations is a burning question on
which opinions differ widcly. It is significant that Applicants, although
attempting to creatc the impression of providing a representative
selection of persans, have once again limitcd their "cross-section" to the
most extrcme wing of Government opponents. An interesting exarnple
of this technique is found in the case of Nana Sita 4, who is described as a
"trader in Pretoria since r9r3". Since Sita was born (in lndia) only in
1898 5 Applicants' date îs apparently wrong. Moreover, Applicants
refrain from saying that Sita has been an active politician for many years,
having been Chairman of the Transvaal Indian Congress and a leading
participant in the passive resistance campaigns of the 1950s.
84, Respondent submits that the extreme opponents of Respondents'
policies of the type quoted by Applicants represent a small minority of
Asiatics, and that, apart from more moderate critics, this group also
1
2 South A/rican Digest,t8 Sep. 1964.
3 Die Transvaler, 8 Oct. 1964.
The Cape Times, 29 Apr. 1964.
5 Quoted at IV, p. 598.
Departmental information. :REJOINDER OF SOUTH AFRICA 375
contains an ever increasing number of supporters of the Government
policy. Thus Mr. A. S. Kajee, a prominent Indian leader, said rccently:
"For the first time in the history of the Indians in South Africa we
have been acceptcd by the present Nationalist Government as
South Africans, and also the Government has for the first time
appointed a special Minister for Indian Affairs to dcal with Indian
matters and problems, and these could only be successfuUy achieved
by co-operative consultations. Our duty now is to bring to the notice
of our Minister the Hon. Mr. Maree our legitimate grievances, who I
am satisfied is sincere and will do everything within his power to
1
give us the desired relief ."
Even more recently another prominent lndian leader was quoted in the
Press as saying :
"\Ve support Dr. H. F. Verwoerd's policy of separate develop
ment ... Therc are many Indians in Natal who support the Govern
ment 2." (Translation.)
M:r.Sayed Ahmed Rassool, President of the l\luslim Religious League of
Durban, was reported to have said that "... he supported Apartheid
because his league believed that the various races should retain their
identity" •
Further refutation of the picture sought to be sketched by the persons
quoted by Applicants, can be found in the words of Mr. T. K. M. Balasu
bramaniam, famous international lecturer and citizen of lndia, who said
afte:r avisit to South Africa that-
"(t]he Whites seem to be sociable, accommodating and sincerely
interested not only in the general welfare of.the country, but also in
promoting the interests of Indians and other fellow citizens in this
country 4".
1. Conclusion
85. From the above survey it is abundantly clear that Applicants have
failed in their attempt at establishing that there exists among South
Africans a gcneral consensus of opinion either to the effect that separate
developmcnt is an immoral or impracticable policy, or to the effect that
some other policy is preferable thereto. This in itself suffices to neutralize
any effect which Applicants' alleged "cross-section of evaluations" might
otherwise have had. Once it is clear that honest and informed opinions
<lifteras to the merits of a particular policy, then it is clear that the mere
fact that it is condemned by some persons, could not establish that it is
"beyond question'' a bad policy or that another policy is beyond question
5
a preferable one • This would a fortiori be the case in circumstances like
the present, where the policy which Applicants attempt to discre~~t
enjoys very much grcater support, at least among educated and pohü
cally conscious persons, than the policy which Applicants seek to impose
1 The Graphie, 2r Aug. 1964.
2 Die Transvaler, r2 Nov. 1964.
3 Daily News, 11 Jan. 1964.
• Indian South Africans, p. 38.
> Vide sec. C, paras. 26 and 38-39.376 SOUTH WEST AFRCCA
on South West Africa (i.e., universal franchise in the framework of a single
territorial unit) 1.
86. The opinions of persons quoted by Applicants were relied upon
as being "judgments of qualified persons" 2 • It is clear therefore that
Applicants do not intend these quotations to constitute separate corn
plaints to be dealt with on their mcrits as something additional to the
charges formulated in the rest of their pleadings. It will suffi.cetherefore
to refer briefly to some of the main topics referred to in these quotations,
and to indicate where, if relevant, Respondent deals with them. The
main topics are:
(a) Homelands, and, in particular, the Transkei 3•
This topic has been dealt with in the Counter-Memorial 4 and
further in this Rejoinder 5•
(b) Job reservation 6•
The laws on job reservation regarding which Applicants quote
certain comments, are not applicable to South West Africa and the
"judgments" are therefore not relevant at ail to these proceedings.
Reference may be had, however, to a brief discussion in the section
of this Rejoinder dealing with economic aspects 7, of the topic in
relation to an allied although very dissimilar situation in South
\Vest Africa.
(c) Pass laws and influx control 8.
These matters, in so far as they relate to South West Africa,
have been dealt with 9•
{d) Migratory labour 10.
This subject is dealt with below 11.
(e) Separate Universities 12•
This matter is dealt with elsewhere 13•
(/) Abolition of Natives' Representatives in Parliament 14.
Respondent cannot see what relevance this issue has either to the
present case, or to South West Africa at aU. However, the basic
1 IV, p. 44r.
2 Ibid., p. 277.
3 Referred to, inter alios, by Prof. Brookes (IV, p. 281), Dr. Keet (p. 284). the
Hon. l'lfr. Schrciner (pp. 285-286), Mr. Donald Molteno (p. 286), Stanley Uys (pp.
287-288), P. van Rcnsburg (p. 288), ex-Chief Luthuli (pp. 289-290), Archbishop
Hurley (p. 596), Mrs. Suzman (p. 596).
• Il, pp. 457-488.
5 Vide Chap. V, supra.
6 Referred to in the Reply by Prof. Frankel (IV, p. 282), Dr. du Plessis (p. 284),
the Cottesloe Consultation (p. 284), the Hon. ;\Ir. Schreiner (p. :?85), ;\Ir. Arendse
(p. 292) and ;\lr. Joshi (p.292).
1 Vide sec. H, Chap. IV, paras. 8-24, infra.
8
Reply, referred to by Dr. du Plessis (IV, p. 284), Colin Legum (pp. 288-289), ex·
Chief Luthuli (pp. 289-290), Mrs. Suzman (pp. 596-597).
9 Counter-1\lemorial, Book VI.
10 Reforred to, inter alios, by Cottesloe Consultation (p. 284), Colin Legum (pp.
288-289), Rev. Huddleston (pp. 595-596), Phyllîs Ntantala (p. 598).
11 Vide sec. H, Chap. II, paras. 15-42, inf,.a.
12 Referred to, inter alios, by the Hon. Mr. Centlivres (p. 286), Prof. Matthews
{p. 290) Academicians, etc. (pp. 593-594).
13 III, pp. 477-489 and vide sec. G, infra.
14 Referred to by the Hon. Mr. Fagan (p. IV, p. 285) and Mr. Basson (p. 287). REJOI};DER OF SOUTH AFRICA 377
principles underlying this measure are discussed m the Counter·
1 2
Memorial and herein •
(g) Group Areas Act 3.
This Act does not apply to South West Africa and the comment
in the Reply is accordingly of no relevance. Respondent will ac
cordingly not deal with such comment save to say that it is biased
and one-sided, and in many instances completcly inaccurate.
The Act was designed to benefit all the various groups in South
Africa, and has indeed made a valuable contribution to the peaceful
development of the whole population.
The social, historical and legal background to separate residential
areas is different in the Territory from that prevailing in the Re
public. In so far as the factors militating in favour or such sepa
ration show some correspondence, reference mav be made to the
treatment thereof in the Counter-Memorial \ ·
1 li,pp. 457-4BB.
l Vide Chaps. IV and V, supra.
3 Referred to, interalios,by Mr. Paton (IV, p. 287), Dr. van der Ross (p. 292),
Yusuf Cachalia (p. 293) and Nana Sita (pp. 598-599).
• III,pp. 167-193. CHAPTER VII
VIEWS OF FOREIGNGOVERNMENTSAND COMMENTATORS
L The second class of "relevant evidence" adduced by Applicants is
described by them as "[o]fficial views of Governments in all parts of the
world, expressed, inter alia, through the United Nations ... as well as
through findings and resolutions of the United Nations itself" 1.
Applicants seem somewhat uncertain as to the exact basis of relevance
of these "official views". At the outset of their discussion they say, with
reference to Respondent's submission that United Nations reports and 2
resolutions are of no relevance to this Court's judicial fonction , that-
"Respondent thus denies the relevance of findings and recommen
dations of the 'organized body' in and through which Applicants
haYe sought to settle their dispute with Respondent through pro
cesses of 'diplomacy by conference or parliamentary diplomacy'.
Such a contention would appear to be unworthy of elaborate refuta
tion \" (Footnotes omitted.)
Once again, Applicants have succceded in being completely obscure.
Whether or not United Nations reports and resolutîons could serve to
establish the existence of a dispute between the Parties, and the further
fact that any such dispute could not be settled by negotiation, were mat
ters which were dealt with at the Preliminary Objections stage. These
issues wcre decided in Applicants' favour, and are of no further relevance
at the present stage of the proceedings. Consequently it is assumed that
Applicants are not, in the above-quoted passage, still fighting thcse
defunct issues. It follows that they must be su~gesting that the ~ep9rts
and resolutions have some relevance to the ments of the present dispute.
However, the only ground advanced by them in the above passage for
such suggestion is that the said reports and resolutions emanated from
the body in and through which the parties allegedly sought to settle
their dispute. Respondent does not appreciate the cogency of this consi
deration, and can consequently do no more than to refer to its previous 2
discussion of the alleged significance of such reports and resolutions •
2. But Applicants go further. They say that Respondent's dismissal
of the relevance of findings and recommendations of the United Nations
" ... may be regarded as a reductio ad absurdum of its total rejection of
international supervision and accountability" 4.
Once again the logic of this proposition is not apparent. Respondent
does not appreciate what relationship there is between supervision by or
accountability· to the United Nations (assuming it to exist), and the to
ta!Iy distinct question whether United Nations findings and recommen
dations are of any relevance to the Court's judicial fonctions. Even had
such accountability or right of supervision cxistcd, the Court would still,
in Respondent's submission, haYe been obliged to determine the issues
1 IV, p. 277.
•2 Asto which, vide Part III, sec. A, paras16-20. sup!a.
3 IV, p. 293.
• Ibid.,p. 294. REJOINOER OF SOUTH AFRICA 379
between the Parties strictly on the cvidence before it, and would not have
becn cntitled to rely upon disputed conclusions reached by the political
or administrative supervisory organs as being probativc of the charges
made against Respondent. On any construction of the Court's fnnctions
they could hardly have been intended to consist of a mere rnbber-stamp
ing of decisions reached by a political body. At the very least the Court
must have been expected to make an independent investigation of the
merits of the dispute before it.
3. Accordingly, in Respondent's snbmission, neither of the two above
propositions relied upon by Applicants 1 could, even if correct, serve
to render the said findings and recommendations relevant at the present
stage of the proceedings. Their only relevance could be on the basis
set out above 2,viz., as evidencc from which an inference of mala (ides
may be drawn. For this purpose Applicants would have to show the
existence of a general consensus of honest and informed opinion from
which an inference can be drawn that no governmental authority honestly
applying its mind to the problems of the Territory could corne to the
conclusion that Respondent's policies constitute the most suitable method
for "promoting to the utmost"-or in other words, that therc is no room
for honcst difference of opinion thereanent. At the outset it must be
emphasized that this test could never be satisfied by showing merely
that certain aspects of Respondcnt's policy have been generally criticized,
or even universally condemned 3• Every conceivable system of govern
ment suffers from certain defects, which may be universally acknow
ledged without there existing any general consensus that the system as a
whole is not a sound one. As bas becn shown 4,the over-all soundness of a
system can be evaluated only by comparison with possible alternatives,
and by wcighing up the relative advantages and disadvantages of such
systems. ·
This factor is of particular relevance to the present enquiry. As has
been seen, in South African political, intellectual and even spiritual life,
the unceasing debate about group relations has on the whole a strongly
positive and constructive nature in that it concems itseH with a com
parison of the merits and demerits of varions proposed policies. Interna
tional criticism, as will be shown, is on a different level entirely.
4. The background to the international political agitation against
Respondent was briefly sketched in the Counter-Memorial 5. In the course
thereof Respondent demonstrated, inter alia:
(a) the sudden manifestation and growing momentum, particularly
during the last decade, of a highly charged anti-colonial campaign
waged mainly by certain States in Africa and Asia;
(b) the patent policy adaptations made by Colonial and Trusteeship
Powers pursuant to this campaign, to the point of acceding to
demands for independence, on the basis of Native majority rule,
1 Viz., that the reports and resolutions assertedly emanated from the organ in and
through which the parties sought to settle their dispute, and from the body allegedly
exercising administrativesupervision.
2 Vide Part III,sec.C, para. 39.
' \Vhich. asRespondent will show, is in any event not the case.
• Chap. IV, paras. 4-7,supra.
~ Il, pp. 440-450.380 SOUTH WEST AFRIC.\
as a matter taking complete precedence over economic, educational
and other aspects of development; and
(c) the fact that the present proceedings form part of the same cam
paign, aimed at securing for South West Africa as a whole, and
evcntually for the Republic of South Africa as a whole, independent
rule by African Natives.
From the circumstance that Applicants find it necessarv to distort
certain aspects of the exposüion, and to pour scorn and abuse on others,
but signally fail to adduce any tacts to controvert it, Respondent accepts
that the said exposition must be taken to be correct. Itwill consequently
at the outset be necessary only to point out Applicants' misrepresenta
tions and to set the record straight.
In the fir1t place, Respondent's purpose was not, as suggested by
Applicants , to approve or disapprove of recent international philoso
phies and e\·ents, but merely to record them. This, indeed, was explicitly
so stated 2.ln the second place, Respondent wishes to draw attention to
the following sentence in the Reply:
"The attribution by Respondent to such other r1Iembers of the
United Nations-comprising the vast majority of the whole-of
views and convictions so weak, indecisive or vacillating as to be
deemecl the procluct of 'pressures' or 'political action' on the part of
other Governments is unworthy of serious reply 3."
lt is, of course, clear that Respondent was not guilty of such "attri
bution". The only States which it was suggested were influenced by
pressures, were the Powers adminis!ering Colonial and Trusteeship terri
4
tories and such pressures were sa1d to have been exerted both by the
indigenous populations of the territorics concerned and by other States 4,
and not, as stated by Applicants, only the latter.
5. Whethcr itis indeed, as stated by Applicants, "weak, indecisive or
vadllating'' 3 of a government to be influenced by political pressures
exerted by other States or whether, on the contrary, it is realistic, practi
<.:al,and, indeed, moral, would appear to be a matter of opinion depending
on circumstances and the point of view of the persan passing judgment.
Since this question is not relevant to the present proceedings, Respondent
does not propose expressing an opinion thcreon. Respondent is con
strained to say, however, that such pressures cxisted and still exist, and
that they still play a vital role in the current international political cam
paign against South Africa. Thus in a recent publication Professor
C. A. W. Manning, a well-known authority on international affairs,
wrote the fol1owing:
"The hostility of the non-white world can be explained without
reference to the merits of the apartheid program. Indeed, for Afro
Asians the possibility that it has any merits can scarcely arise. Itis
the policy of white men governing black; and the only guod thing
that white men still wielding authority in Africa can do is to abdicate
in favor of the non-white majority. Anything else they may think
1 IV, p. 294, footnote 8.
2 Il, pp. 449-450.
3 IV, p. 295.
~ Vide II, pp. 441-447. REJOINDER OF SOUTH AFRICA
to dois by definition bad. In the eyes of the Bandung confraternity,
South Africa ought never to have existed and ought now no longer
to exist. It is not a question of whcther she is meeting her responsi
bilities with humanity, wisdom, evcn a measure of self-abnegation.
What in their eyes is wrong is not what South Africa may do, but the
fact that she should continue in a position to do anything at all.
~ ~ ' • • • • 4 • •
Nor should it be beyond South Africa's comprehension that the
major \Vestern governments may in these circumstances shy away
from identifying themselves with her position. In the world of tough
diplomacy old friendships may have to be set aside in deference to
new expediencies. At a time when even Emperor Haile Selassie is
const.rained to forget what he owes to South Africa, when Israel
finds it necessary to ignore the analogy between South Africa's
predicament and her own, and when Britain has to be cautious even
in her support for Israel, it is easy to see why neither Britain nor the
United States can be· other than cautious in support of South
1
Africa ."
6. Apart from the emotional reasons mentioned by Professor Manning
for the hostility of the non-White world towards South Africa, some
leaders are of course also influenced by more practical ones. In a recent
address, President Nkrumah of Ghana delivered a plea for African unity,
which he motivated, inter alia, as follows:
"\Ve must unite for economic viability, first of all, and then to re
cover our mineral wealth in Southern Africa, so that our vast re
sources and capacity for development will bring prosperity for us
2
and additional benefits for the rest of the world ." (Italics added.)
And later in the same address he stated that capital for development
in Africa-
"... flows out of Africa today in gold, diamonds, copper, uranium
and other minerals from southern Africa, Northern Rhodesia, the
Congo, and other parts of the continent 3".
Others again have an interest in fomenting disorder and chaos as a
prelude to extending their ideological and political influence in Africa,
and are consequently hostile towards South Africa as an effective bastion
of security in a continent where political violence is never far from the
surface. This applies mainly to Communists, and particularly the Chinese
variety. As stated by Elspeth Huxley:
"What the Chinese want is trouble, as violent and bloody as pos
sible. Rebellions in Kwilu, Angola, Cameroun are right up their
street. Revolution, in their view, is not an unpleasant neccssity but
a positive good: a purge for the sick body, a consuming fire, a forge
from which tried and tested leaders will emerge. 'Revolution', Chou
En-lai told the Algerians, 'is the locomotive of history which will
1 Manning, C. A. \V., "South Africa and the \Vorld: In Defense of Apartheid",
Foreign Affairs, Vol. 43, No. I (Oct. 1964), pp. 135-136.
2 "Africa's Finest Hour", Supplement with 'Ghana Today' of z9 ]uly r964, Speech
delivered by President Nkrumah at the Conference of African Heads of State and
Government in Cairo on 19 July 1964, p. 4.
3 Ibid., p. 5. SOUTH WEST AFRICA
1
break through ail barriers ... the people of Africa want revolution' ."
The nature of Chinese intentions in Africa was confirmed by a recent
editorial in Peking's ]enmin Jih Pao which referred to the "excellent
revolutionary situation" emerging in the Congo 2•
There exist strong indications that, in accordance with this principle,
Communists have had a hand in many of the recent rcvolutions in Africa,
including those in Zanzibar, the Congo and Cameroon J; and, according
to the c\·idence in recent trials, in an abortive attempt at initiating an
uprising in South Africa 4• To what extcnt Communist influence also plays
a role in the campaign of international vilification of South Africa must
remain a matter of conjecture. What is dear, however, is that both
Chinesc and Russian Communists would give a great deal to dcstroy the
present orderly and anti-Communist administration in South Africa, and
no doubt use whatever weapon is available to thcm towards that end.
7. The hostility of the non-White world (and particularly many of the
ncwly independent States in Africa) towards South Africa, has increas
ingly and avowedly been directed towards alienating the Western nations
from South Africa, and in the process the new nations have made full
use, as bargaining factors, of their voting strength in the United Nations,
as well as of their actual and potential economic and strategic importance.
In this regard Professor Thomas Hovet Jr., of New York University
writes:
"Charges of irresponsibility, then, can be levcled against the
African states when it is evident that thev are uninformed on issues
that they are willing to support in exchange for support on issues of
concem to them. Their constant argument is that their position on
any African issue will be supported by ail States who understand it
and therefore recognize the logic of the African viewpoint. But for
responsible negotiation most states do not expect to get voting
support simply by crass bargaining on the principle of 'you vote for
me; l'll vote for you'. Thus if the policy positions of the African
states are to be respected, they must show respect for the policy
positions of other states. And resolutions of the General Assembly
will not have an impact or be implementcd unlcss they are passed in
an atmospherc of responsibility 5."
ln the result the African States have managed to obtain a long list of
condemnations of Respondent's policics cven by nations with close ties
with South Afrïca.
However, on analysis, the list becomes considerably less impressive.
In the first place, even a cursory examination shows that most of the
statements, if sincerely meant, were based on entirely fallacious assump
tions. This aspect will be dealt with later 6• ln the second place it is
questionable to what extent the expressions of views really represent the
1 Huxley, E., "The face behind the rnask: Sorne thoughts on revolutions".
Optima, Vol. 14, No. 2 (June 1964), p. 64.
2 The Star, 25June 1964, p. 1.
. 3 Vide the discussion of Chinese revolutionary activity in Africa by Elspeth
Huxley, "The face behind the rnask: Sorne thoughts on revolutions", Optima, Vol.
14, No.2 (June 1964), pa.rticularlat pp. 63-64.
• Vide Chap. Vl, para. 61, sujwa.
5
6 Iiovet,T. (Jr.),Africain the United Nations (1963), p. 219.
Vide para. 15, infra. REJOIXDER OF SOUTH AFRICA
considercd opinions of the governments expressing thcm 1,in particular
sincc the statements quoted by Applicants are all negative in character
-they oppose or condemn a policy, without indicating or suggesting
that the spokesmen have givcn any real thought to possible alternatives.
lt may be accepted that tne extremc Black nationalists do not have any
difficulty in this regard-they advocate immediate introduction of a
univer.:ïal franchise paying no account to the probable cffects thereof on
the standards of effidency, prosperity or security of the country, or on
the vcry existence of minority groups such as the Europeans, Coloureds
or lndia.ns. The attitude of militant Communism may be expected to be
similar, for reasons indicated abovc 2•However, Respondcnt assumes that
outside of the ranks of cxtremists, such an attitude does not conciously
exist, evcn in Africa. The question then rcmains: What value can be
attached to an expression of disapproval from anyone, even a rcpresen
tative of a State, who has not given proper thought to, or dccidcd upon,
a prefcrable alternative?
8. The extcnt to which the condemnations of apartheid by or on
behalf of many States are entirely unrealistic, and also the extent to
which policies in Africa have indecd been shaped by pressure from other
States, appear clearly from the following example. Perhaps the most
offensive passage quoted by Applicants under the heading "Vicws of
Governments" emanated from .11Ir.Patrick Wall, a British member of
Parliamcnt and United Nations rcpresentative, who is reported to have
said:
"For ovcr 40 years, whatever the material progress that might
have bcen made, the South African Government had dcprived the
indigcnous inhabitants of the Territory of their basic human rights.
HisGovernment's position wasquite clcar: it couldnot accepta system
which set men on different lcvcls bccause of colour, or which cnabled
the men of one race to have complete power over the men of another
by dcnying them the rights that should be theirs. Apartheid was
morally abominable, intellectually grotesque and spiritually indefen
sible. Thus, the Government of South Africa was sufficiently to be
blamed for the existence in South West Africa of a situation in which
the rights of the individual were set at nought unless his skin was
3
of the right colour ."
This was in 1962. In 1963 Mr. Wall wrote as follows in a letter to The
Times:
"Britain's decision to give independence to her African colonies
was bath right and inevitablc. But one of the main reasons we face
the difficulties so well described in your leading article 'African
Squeeze' is because the British withdrawal since 1959-1960 has not
been planned and has been carried out at great speed.
Expediency has governed principles and as a result, not only a smalt
nttmber of Europeans, but a large number of Africans are now /acing
a decline in standards o/ freedom, secmity, and economy as independent
'1 Not even to mention the people of the States concerned, to whom further
refzrVide para. 6, supra. paras. 16-39, infra.
3
IV,pp. 297-298. SOUTH WEST AFRICA
African States become politically autho,ita,ian and adopt soc-ialist
economies.
It is becoming increasingly clear that though the white man can
work in independent Africa he cannot have his home there as he
finds the new standards of justice, education, and agricultural
development intolerable. What then is the future of the whites in
Southern Africa where some have been for over 300 years? They have
the willand the power to fight and few doubt that they will do so.
Britain's failure to introducc multi-racialism against local
opposition at an earlier stage, and hcr equally disastrous failure to
fight for multi-racialism when it was threatened by black domination
means that we will soon have to choose between supporting the
whites in Southern Rhodesia, Angola, Mozambique, and South
Africa or fighting against them. The recent United Nations action
against Southern Rhodesia was largely motivated by the desire to
deprive that country of ber main defensive weapon, ·the Royal
Rhodesian Air Force. Britain used the veto and will have to do so
again.
For the future of Africa as a whole a strong case can be made out for
the virtual partition of the contine,it and for the continuance of white
leadership in the industrial South p,ovided the leaders are prepared to
educate the maiority race and gradmllly to share power with them. From
the British point of view not only family ties but major investments,
over-flying rights, use of vital airfieldsand ports, as well as access to
70 percent. of the Free World 'sgold suppJy wou1dbe sacrificed if we
supported the Pan-African drive to eliminate the white settler from
the continent of Africa. This choice may have to be made sooner
than many may expect 1." (ltalics added.)
Mr. Wall's views on the goveming factors in British policy in Africa
are instructive. It is also interesting to note that his condemnation of
apartheid does not imply any support for the extremist views refcrred to
above. But how practical is the policy proposed by him? It evoked an
immediate reaction from the well-known authoress and authority on
Africa, Mrs. Elspeth Huxley. She wrote:
"Even )lajor Patrick Wall, in his cogent plea (2I September) for
facing facts in Africa, shies offhe harshest fact of ail.
He urges a kiss of life for multiracialism in South Africa, whose
leaders should 'gradually share power with' the black majority.
Alas, multirac-ialism is dead beyond hope of revival and there can be no
sharing of power, only seizu,e of it. Ifthe whites relinquish their grip
then the black majority will take it, as in Kenya-and as blacks,
African racialists, not as so-called 'civilized men' measuring up to
some common non-racial standard politically expressecl in a qualified
franchise.
To urge whites in soidhern Africa to share their political power is to
urge them to commit race suicide. It may be right that they should
do so-if a principle is right morally then no doubt it should be
followed at whatever cost-but to expect them to embrace their
fate gladly is to ask a lot, and to force them into it a considerable
responsibility. Until we face this bleak reality I do not think we shaUbe
1 The Times, 21Sep. 1963. REJ011'DER OF SOUTH AFRICA
able to extricate ourselves /rom the mixture of wishfut thinking, good
intentions, expediency, and funk, cemented with guitt money, that has
passed for an African policy in the past few years. \Ve believe in
compromise and face saving; most African nationalists do not.
Theirs, they believe, is the carth of Africa and cverything that's in it,
and this they mean to have. Whether we think this 'reasonable'
or not is beside the point. It is no good going on trying to ride a dead
horse 1." rtaliesadded.)
Soon thereaftcr a letter by one Vivian Wadsworth appcarcd in support
of }lrs. Huxley. This reads as follows:
"I attendecl the 1960 Constitutional Rcvicw Conference for the
Federation of Rhodesia and Nvasaland as a Government adviser.
OfficialSecrets legislation forbids me to reveal what transpirecl there,
but when the records become available to the historians they will
prove beyond cloubt the contentions of Mrs. Elspeth Huxley.
The only people who have cver wantecl partnership have been the
'Whitcs'. For the African leaders the only issue has been power and,
for the British Government, appeascmcnt 2."
9. In January 1964 Mr. Wall set out his views at greater lcngth in an
article in The Yor!?shire Post. He also dcscribed the British policy as one
of "appeasemcnt towards pan-African ambitions" 3•This hc arnplifted by
drawing "a parallel between the policy of appeasement in Europe in the
1930s and the policy of appeasement in Africain the period 1959-1963" 3.
Although still paying lip-service to "some form of multi-racial solution" 3
for South Africa, he stated:
"Four years ago, people were thinking of multi-racialism as an
equal sharing between black and white, the former contributing the
numbers and the latter the know-how. As the wind of change became
a hurricane, it became clear that thcre was to be no sharing, and
that as soon as the Africans had a majority of one in the local
Parliament they would demancl complete domination which they
could obtain within hvo years.
There was not even to be a partnership based on African political
power and European economic power, as African independence
became synonymous with the one-party State and African socialism
left less and Iess room for European private enterprise 3."
That it would be immoral and unpractical to attempt to force the
Europeans out of South Africa, was also recognized by Mr. Wall. He
stated:
"The denial of independence to Southern Rhodesia will be the
next step clown this slippery slope, followed by the exploitation of
the High Commission Terri tories as bases for sabotage against South
Africa. People say that the Arabs can never push one mîllion Jews
into the sea, but the same people seem to assume that four million
\.Vhites in Southern Africa can be forced into the ocean.
Many families have been there since the 16th century; only with
their help can the vast economic potential of the continent be
developed; they know that unless white leadership is prolonged until
1The Times, 24Sep. 1963.
2 Ibid., 8 Oct. 1963.
3The Yorkshin Post,16 Jan. 1964.386 SOUTH WEST AFRICA
the African continent has got over the first pangs of independence
they will have no future 1.''
1\fr. Wall's proposcd solution was adumbratecl in the last sentence of
the above passage. Itwas further e]aborated as follows:
"Finn action now by Britain and the United States coulcl still
stabilise the continent for the next decadc on the basis of partition,
the line of the Zambezi dividing the black-led north from the white
led sou th 1."
m. Respondent has devoted some space to the views e.xpressed by ?.Ir.
Patrick Wall, not only because of the status of their author and the self
cvident significance of their contents, but because they illustrate two im
portant considerations regarding views that have been expressed on
behalf of governmcnts conceming apartheid or separate developrnent.
The first is that, for varions reasons 2 a condcmnation expressed at the
United Nations cannot by itself be regarded as affording any significant
evidence of the merits or demerits of the policy: if this were not so, it
would not be possible to understand how i\Ir. Wall could, in ail apparent
sincerity, have followed up the condemnation at the United Nations with
thepubhhed viewsquotedabove. The second is thatcriticism of Respond
ent's policy, without reference to practicable alternatives, serves little
purpose. In his later writings in the press l\lr. Wall-in contrast with the
ordinary practice of commentators in international politics, and, indeed,
with his own quoted address at the United Nations--did give attention
to the question of a positive alternative policy. It seems at least doubtful,
however, whether the policy suggested by him would be an improvement
on separate development. 1t seems to have been designed only for ten
years to corne-the author possibly assµmes that at the end of another
decade of \Vhite mie, the objectionable featurcs which he now sees in
multi-racialism would have fallen away 3• This seems in Respondent's
view. a very doubtful assumption, to put it at its lowest. At the same time
he appears to assume that the South African Bantu would be satisfied to
defer al1significant progress towards self-government for ten years. Again
this assumption does not appear to be a realistic one.
II. Among the nations who have in the past expressed critical com
ments on Respondent's policies were the Scandinavian countries. As the
Danish l\'Iinisterof Foreign Affairs once said: "Numerous manifestations
of one kind or another bcar witness to the intense preoccupation of the
Danish people with the question of apartheid 4 ."
A similar preoccupation seems to prevail in other Scandinavian
countries. It seemed atone stage that these countries were beginning to
realize that it was not enough to oppose apartheid, but that some thought
should be devoted to an acceptable alternative. This approach was mani
fested, inter alia, in the following words of the same Danish Minister:
"[ Apartheid'sj abolition will ... pose other problems ... We must
1 The Yorkshire Post, 16 Jan. 1964.
z Vide fnrther para. 13, infra.
3 Although it is significant that he has beco.me much more guarded in his referen
ces to miùti-racialism as a possible solution than in the letter commented on by
Elspeth l{uxley.
4 U.N. Doc. A/PV. 1215 (25 Sep. 1963), Eighteenth Session, General Assembly,
Prouisi.onalerbatim Rerord of the I2r5th Plenary Meeting, p. 23. REJOINDER OF SOUTH AFRICA
face the fact that the great majority of the European population in
South Africa v.Tonglyassume that abandonment of white domination
means abandonment of their own existence. It is our duty to prove
to them that that is not so. It is our duty to demonstrate that there
is an alternative to catastrophe and that the only road to this altern
ative goes through the abolition of apartheid.
. . . . . . ~ . . . . . . . . . . . . . . . .
In other words, if the approach of the United Nations has so far
followed a single line, we feel that it has now become necessary for
the Assembly to formulate a supplementary policy, to make clear
to the world what we would like should take the place of the present
set-up-a truly democratic, multiracial society of free men, with
equal rights for all individuals, irrespective of race.
Changing a society so deeply rooted in apartheid and dominated by
a minority into such a free democratic, multiracial society may well
prove to be a task which cannot be solved by the people of South
Africa alone. I feel convinced that in such a process of development
the United Nations will have to play a major role if we are to avoid a
tragic disastcr. We must consider how, if necessary, we can in a
transitional period contribute to the maintenance of law and order
and the protection of life and civil rights of ail individuals. We must
likewise consider how the United Nations can best assist South
Africain laying the foundation of its new society.
In our opinion it is high time for the Assembly to give thought to
1
the positive policy to be pursued in South Africa ... "
The whole question formed the subject of discussion between the
Foreign Ministers of the Scandinavian countries. Respondent has always
assumed that the interest displayed by Scandinavian countries in South
African affairs was well-intentioned, and it welcomed a departure from
the general line of negative criticism normally encountered at the United
Nations. At the same time it considered that these countries were at a
great disadvantage in thcir attempt at playing a constructive role re
garding South African affairs by reason of their remoteness, geographi
cally and in terms of experience, from African realities-a disadvantage
which appears very clearly also from the above statement by the Danish
Minister. In order to assist them in their self-imposed task, Respondent
consequently issued an unconditional invitation to the Foreign Ministers
of Sweden, Dcnmark, Finland, Iceland and Norway to visit South Africa
2
with complete freedom to visit any place or speak to any person • •
However, to Respondent's surpnse, the invitations were declined on
the grounds that-
"... the Government ... feels that the Minister could only under-.
take the journey if it would serve the purpose of furthering progress
towards a solution in accordance with the principles of the United
Nations Charter which, in the opinion of the Government ...
regrettably does not seem to be the case at the present time 3."
1 U.N. Doc. A/PV. 1215 (25 Sep. 1963), Eighteenlh Session, General Assembly,
Provisional Verbatim Record of the r2r5th Plenary Meeting, p. 26.
2 U.N. Doc. A/PV. 1236 (ro Oct. 1963), Eighleenth Session, General Assembly,
Provisional Record of the r236th Plenary Meeting, p. 11.
3 Departmental information. Text of the Swedish, Danish, Finnish and Icelandic
reply. The Norwegfan reply was in similar but not identical terms.388 SOUTH WEST AFRICA
From this reply Respondent could only assume that first-hand and
accurate information in some way constitutcs an obstacle in the way of
delegates searching for a solution in accordance with what thcy consider
the principles of the United Nations Charter to be. Respondent had often
before gained the impression that many delegates adopted such an
approach, but it had never before been expressly so stated.
On Scandinavian initiative, certain "experts" were, howcver. ap
pointed to examine conditions in South Africa. Further reference will be
made to them in the next paragraph.
12. The same attitude of an cxtreme readiness to criticize coupled with
a complete reluctance to propose an alternative may be seen in the report
of the so-called "recognized experts", referred to in the prcvious para
graph. They were appointed in terms of a Security Council resolution
requiring them to-
"... examine methods of resolving the present situation in South
Africa through full, peaceful and orderly application of human
rights and fundamental freedoms to all inhabitants of the Territory
as a whole, regardless of race, colour or creed ... 1".
Although outspoken in their condemnation of Respondent's policies
(which condemnation was bascd largely upon a distorted, slanted or,
at least, inaccurate rcndering of facts) 2 the so-called experts could, when
it came to suggesting an alternative, do no more than pronounce a num
her of platitudes and suggest the calling of a South African National Con
3
vention to draw up a new constitution for the country •
13. In assessing the significance of opinions expressed by governments
on the merits or ethics of Respondent's policy, substantial weight should,
it is submitted, be attached to the above-mentioned fact that they have
on the whole apparently not considered the problems involved in any
alternative policy. ln this regard Professor Manning said:
"Where the irresponsible foreign onlooker has merely to insist that
apartheid is 'morally wrong'. the responsible South African has
rather to ask himself whether there is any less immoral approach to
SouthAfrica's problem 4."
Or, as stated even more pungently by a foreign joumalist:
"A simpleton can criticise apartheid, but it will take a very wise
man to provide an alternative system which will work and at the
same time improve the situation in South Africa 5."
The irrationality of the approach·which condemns a policy without
having regard to possible àlternatives is occasioned, it is submitted, by
the tact that a great part of the criticism directed at South Africa is
motivated by cmotional rather than rational considerations, as has been
noted by Professor Manning in the passage quoted above 6•Where reason
. 1 U.N. Doc. S/5658, 20 Apr. 1964, p. 1.
i For discussion of cxamplcs hereof, vide Letter dated 22nd May, .1964 /i'om the
Pe;,manent Rep;,esentatîue of South Africa addressed to the President of the Security
Councîl. S/5723 (28 May 1964).
1 U.N. Doc. S/5658, 20 Apr. 1964, p. 18.
• l\faiming, C. A. \V., "South Africa and the \Vorld: In Dcfcnse of Apartheid",
in Foreign A[fairs, Vol. 43, No. 1 (Oct. 1g64), p. 136.
1 Beilby, L., "Living with South Africa", The Daily Teleg,aph, 24 ~ov. t964.
6 Vide para. 5, supra. REJOINDER OF SOUTH AFRICA
plays any role at ail, it is generally directed not at the merits or demerits
of Respondent's policy, but at the interests of the State on whose behalf
the criticism may be voi.Œd. These interests could take the form of the
naked acquisitiveness apparent from the address of President Nkrumah
quoted above 1,the political or ideological ambitions of militant Com
munism, or merely of the need to gain or keep the favour of the so-called
"anti-colonialîst" States, or avoid falling into disfavour with those
States.
14. It is apparent that no impartial observer can draw any conclusion
regarding the merits of Rcspondent's policy from the fact that it has been
criticized on behalf of a number of States, where the criticism was rnoti
vated by the features considered in the previous paragraph. The extent
to which considerations other than the rnerits of a particular policy weigh
with certain delegations, has been pointed out also in another context
by Professor Manning, who said that-
"... in recent debates at the United Nations it has become increas
ingly diffi.cult to impute much sense of reality to delegations which
could join in a dcmand that South Africa take no action against those
accused of attempting to destroy with high explosives the instal
lations upon which the country's viability is depcndcnt 2".
r5. Allied to the lack of reality referred to above, regard must be had
to the consideration th,!.t, even in the passages quoted by Applicants,
it is apparent that the speakers concerned either had no accurate con
ception of the true nature of Respondent's policies, or deliberately
exaggerated, misrepresented, or distorted them. Thus, almost without
exception, Respondent's policies were represented as being intended to
oppress the non-White population for the benefit of the Whites, or even
as being based on "an ill-conceived notion of the superiority of one race
3 4
over another" •That this is not so has been demonstrated repeatedly •
Respondent accepts that in many instances wrong impressions about
the nature and effect of its policies are honestly and scriously maintained.
The picture of South Africa presented overseas has so often been one
sided, exaggerated or completely incorrect that some governments or
their representatives may well have been misled thereby. In addition,
rnany persons wcre no doubt attracted by philosophies or theories of
multi-racialism which exerted a strong appeal on the emotions but have
been singularly unsuccessful in practice. As the fruits of Respondent's
policy become visible, and the defects of alternative policies can no longer
be ignored, Respondent expects an ever-improving world climate of
informed opinion regarding the principles of separate developrnent.
r6. Statements made by a government during debates in the United
Nations can, for the reasons set out above, not be assumed to represent
a reasoned assessment of the merits of Respondent's policy based upon
substantially correct information. Even less can they be assurned to
represent the universal or even majority views of the subjects of the
governments concerned. Outside southern Africa the merits of Respond-
1 Vide para. 6. supra.
2 Manning, C. A. W., "South Africa and the \Vorld: In Defense of Apartheid",
Foreign Afjafrs, Vol. 43, No. I(Oct. 1964), ·p. 137.
3 Representative of Malaya, quoted by Applîcants at IV, p. 300. ,
. +Vide, e.g., li, pp. 457-488, also Cbap. V.paras. 7-12, supra, and Chap. VIII.
"infra. · ·· . .390 SOUTH WEST AFRICA
ent 's policies are matters of largely academic interest of which the man
in the street knows very little and normally cares even less, and which
fall outside the political arena altogether. In southern Africa the position
1
is of course totally different. As has been seen , in South Africa this
policy has obtained ever-increasing support from all sections of the
population. ln the Central African Federation the voters toyed with the
concepts of partnership and multi-racialism but, as noted elsewhere,
policies based on these concepts did not corne up to expectations, and
many erstwhile supporters of partnership are today very sorry that a
policy of separation was not attempted years ago 2•
17. Since the merits of Respondent's policies have in the nature of
thlngs never been systematically canvassed before the people of any
foreign State, and no vote taken thereon, or the views of the people
ascertained in some other way, it follows that nobody could say either
that the informed opinion in any such State is in favour of separate
development, or that it is opposed thereto. Respondent does however
make bold to say that among foreign commentators who have examined
the situation with a view to determining the best policy from the point
of view of ail the inhabitants of South Africa, the policy of separate
development enjoys substantial and ever-increasing support, and where
not supported, is at least given serious consideration as a reasonable
and sincerely meant attempt at solving an intractable problem. Sorne
examples of favourable comment were furnished in the Counter
Memorial 3•Further examples of the type of consideration which Respon
dent's policies have been enjoying in responsible circles overseas will be
given in the next succeeding paragraphs.
18. In a recent article in the Schweizer Afonatshefte, entitled "South
Africa-an attempt at a positive appraisal", Dr. Wilhelm Rôpke, Profes
sor at the Graduate School of International Studies, Geneva, wrote,
inter alia, as follows:
"In order to understand the issue and its unique nature, one must
start with the indisputable fact that the \Vhites of South Africa have
not merely a doubtful right to the land which they have settled and
brought to the highest prosperity, but, rather, they are completely
justified in owning and controlling it 4."
"Nor must we lose sight of the fact that the South African Negro
is not only a man of an utterly different race but, at the same time,
stems from a completely different type and level of civilization. One
of the most shocking signs of the intellectual confusion of our times
is that too few seem to ask themselves if it is at ail possible to weld a
nation worthy of the name out of such utterly different ethnie-
1 Vide Chap. VI, para. 5, supra.
1 Vide van Eeden, G., Die Vuur Brand Nader (196.t), pp. 140-141. Respondent
expresses no opinion on the question whether or not such a policy would indeed
have been practicable in the Central African Federation or any of its constituent
States, where circumstances differvery materially from those obtaining in South
Africa and South \Vest Africa.
• JIl, pp. 484-488. .
4 Rôpke, \V., "Südafrika: Versuch einer \Vürdigung", Schweizer Monatshe/te,
44th Year, No. 2 (May 1964), pp. 103-rn4. REJOI:\'DER OF SOUTH AFRlCA 39I
cultural groups and, ori top of that, to organize it politically as a
democracy 1.''
" 'Apartheid' concerns a separation of the races, by means of which
the South African government is trying to solve, or at least render
bearable, the ethnie problem of the country. \Ve, as outsiders, should
make an honest effort to understand the true nature of the issue-its
uniquencss and the heaviness of the burden it represents. What
possibly in unattractive fashion-this Dutch word is meant to
convey is the effort, at the cost of great sacrifice, to do something
completely reasonable, that is to say, keep apart the immiscible
ethnie groups through setting up of autonomous areas reserved for
the Negroes, the first of which bas now been given over to the
pertinent Bantu tribes under the name of 'Transkei'.
If we find it hard, in princip]e, to reach a just verdict, we should
remember other cases in which the separation of ethnically hetero
geneous groups, painful as the operation generally is, is considered
today as unavoidable 2." (Translation.)
"Apartheid means, therefore that certain appropria te possibilities
for development will be given thétwo ethnie groups in South Africa,
black as well as white, through the establishment of 'Bantustans' .
.This is the specific form in which South Africa pursues the policy of
'decolonializing' and 'development aid', which corresponds to this
country's needs. No expense is being spared and ail the experience of
the Whites who have had contacts with Negroes for centuries is
being utilized. One of the major aims of this policy is to raise the
educational standards of the Bantus, already higher than in any
other part of Africa, and to teach them modern agricultural
3
methods ." (Translation.)
"One may judge the chances of success of this policy as good or not,
but itcould ·hardiy be called stupid or evil 4.'' (Translation.) ·
"At ail evcnts, it îs unfair to reject this policy ifone has no idcas
for abetter solution. Only completely confused ideologists such as the
so-called 'liberals' in South Africa and their counterparts in other
countries can seriously propose that one should give the blacks full
political equality within the framework of a unified South Africa,
thcreby actually handing over to them jointly undisputed control
of the country. This would be nothing less than advising national
suicide 5."
19. Dr. Max Lamberty, Professorat the HogerJnstituut voorOverzeese
Gebieden at Antwerp, wrote in De VlaamseGids:
" 'Integration' can be a greater evil than 'segregation' when it is
not accepted by all the parties concerned, when it is achieved not
by free choice but byforce.
A policy of separation, which leads to the establishment of separate
institutions which grant to each of the groups differing raciaUy,
culturally or religiously its own possibilities, can, on the other hand,
1 Ropke. W., op. cit,. p104.
z Ibid., p.105.
$ Ibid., p.Hm.
• Ibid:, p107 .
.! Ibid., p109. 392 SOUTH WEST AFRICA
be a benefit when it gives ali the groups concerned the possibility of
completely developing and realising their own way of life.
The attitude which most States adopt towards South Africa is
unsound. lt has only become possible by a great lack of under
standing and a very dubious opportunism 1." (Translation.)
20. After a tour of South Africa by three French senators (Professor
Georges Portmann, Dr. A. Plait, and :;\Ir. L. Yung) the leader of the
group, Professor Portmann said, inter alia:
"We have been through the Transkei ... and were astonished by
the results obtained there. \Ve saw the schools and the roads. They
were perfect. We talked to Native farmers and members of the
Native Govemment. Our impressions are very, very good ...
We do not know what the ideas of the South African Government
are, or what it intends doing in the future, but we can say that we
cannot fault the result of Bantustans as we saw it--even though
Bantustans may not be the answer to South Africa's problems 2."
21. A German publisher, Mr. \Valdemar Schutz, was reported as
saying after a visit to South Africa.:
."Bantustans . : . are a wise development. The Government is
giving the Africans the right to develop in their own sphere ... The
critics of South Africa have not looked at the position closely enough.
If people say that the measures taken by the Government are for the
benefit of Whites at the expense of non-Whites they are wrong.
Present Govemment policy is for the benefit of everybody 3."
He added that he would soon be publishing an exhaustive book by Dr.
Peter Kleist, fonnerly of the West German Foreign Affairs Department,
which.would reflect the same opinions.
22. ·1n the well~}(nown Dutch paper Elseviers Weekblad Drs. F. A.
Hoogendijk wrote:
"It is a rcmarkable experience travelling through the country and
participating in the problem of apartheid from nearby. Great
apartheid works reasonably well in practice. It is the best of the worst,
as Winston Churchill once said of British democracy. It is the only
way to avoid creating chaos among the various population groups
and to sec to it that one population group does not oppress the other.
That the Europeans in South Africa are now oppressing the non
Europeans, is untrue 4." (Translation.)
23. In the .National Review, published in New York, Professor Thomas
Molnar wrotc as follows after a visit to South Africa:
"The Govcrnment of South Africa today Ïs totally committed to
the Bantustan policy. It hopes to secure for the Bantus a number of
territories where they will eventually exercise self-rule. This is the
positive counterpart of apa,rtheid. It is a fonn of decolonization plus
foreign aid to which the majority of the whites and many !,)fthe
politically consdous Bantus are fully committed. The iatter=--that
1 Lamberty, M., "\Vat betekent plnralisme (11)?" in De Vlaamse Gids, No. 12 of
1963, pp. 811-812. . . •
2 Sunday Times, 11 Oct. 1964, p. 9. - · '
9 The Natal Mercury, 10 Oct. 1962, p. 6. ,.
• Hoogendijk, F. A., "De verdachtmakingen en de Werkelijkheid'/,'·E/seiiiers
Weekblad, 4 Apr. 1964, p. 3. ,ri' . ·,. " ,- REJOINDER OF SOUTH AFRICA
393
is, the politically hep Bantus-do not want a qualified suffrage that
will keep them in a permanent minority situation, nor do they want
one-man one-vote for the simple reason that they know that would
soon lead to a Bantu majority in parliament, and even sooner to
general civil war and massacre since the whites and the sizable Indian
minority would never accept such a situation. .
lnstead they favor the Transkei experiment: the creation· of a
semi-autonomous state in the traditional homeland of the Xhosas.
. . . . . . . . . . . . . . . . . . . ..
The Vcrwoerd government is not engaged in· window dressing
designed to placatc world opinion; it is earnestly trying to develop
1
Bantu talent, potentiality and prosperity ."
24. A retired United States Circuit Court judge, Judge Max M. Kors
hak, is quoted as saying after a visit to South Africa:
"I came here with extreme hostility; ready to criticise and scorn.
I shall lcave as a dedicated protagonist of the racial policies of this
Government whether these are popular abroad or not 2."
25. In a letter to The Times, Lord Milverton, former Governor of
Nigeria, wrote, inter alia, as follows:
"The whole basis of the apartheid policy is that the South African
problem is a multi-national one, not a multi-racial one.
What is the alternative to apartheid? Africa is strewn with the
wreck of multi-racial dreams. Surely there is everything to be said
for separate development-a system which guards the human
dignity of both black and white Africans by providing that each
should govern themselves ...
Africans are beginning, in large numbers. to appreciate the inde
pendent future offered to them by the policy of apartheid, but the
encouragement of unrest is a Communist interest, and it seems to
me a pity that those who have no use for Communist principles or
practices should unconsciously be playing their game 3."
26. One of the editors of De Telegraaf, the well-known Dutch paper,
wrote:
"... South Africa proceeds to exploit its fabulons riches and to
educate its Bantu with }oveand efficiency at a cost of large ainounts
ofmoney.
South Africa will also maintain its 'gre.at'apartheid policy, con
sisting of the establishment of separate Bantu states, not because it
considers it very pleasant, but because nobody has been able to
demonstrate a· practical alter:native for this policy which has its
4
roots in history ." (Translation.)
27. The famous a.uthor, John Creasey, said:
".... I have no doubt th~t South Africa is a freer, happier, more
prosperous and more'united country than most people,in England
realise.
l Molnar, T., "First Step in the Transkei", National Review, z5 Feb. 1964, pp.
-.:55-156. .
2.Sunefay Express, 20 Sep. 1964, p. 15.
3 The Times, 17 June 1964, p. 13.
• De Telegraaf, 2 Ma.r. 1963, p. 2. SOUTH WEST AFRIC.-\
394
I hope I will be forgiven for saying that my preference is for the
Rhodesian approach to the problem of Black and White. That
doesn't alter the fact that on the surface at least there is a great
deal to indicate that the South African approach is working much,
1
much better than most people at home dreamt was possible ."-
28. Hans Edgar Jahn, who has earned international recognition as an
impartial and objective observer, stated:
"The Bantu reserves existing in the country are to be made
independent. There the Black man is to govern, administer and de
velop himself. The White man isnot allowed to intrude. He is, however,
encouraged to develop industries on the borders between the White
and Black areas thus creating employment opportunities for the
population of the reserves. The Black intelligentsia educated in the
schools and universities are also to be deployed in the Bantustans.
In principle the Bantustan project is to be recommended. Millions
2
ofBlacks have been living in these reserves for generations ." (Trans
lation.}
29. Major Allister. Smith of the Salvation Army recently wrotc in
a Canadian religions magazine after a visit to South Africa:
"The [South African] government bas recently granted self
government to nearly two million Africans living in one of the most
fertile and beautiful reserves, where no white man mav own land.
Modern medical and educational facilities are provided for Africans,
mostly paid for by the White tax-payer. l\lany African chiefs and
others support the Govemment policy and arc not agitating for inte
gration. But people who have never visited South Africa are so
blinded by hateful propaganda that they can believe nothing good
of the country 3."
30. Drs. A. M. den Hartog, a teacher at the Catholic College of St.
Joris at Eindhoven, Rolland, recently visited South Africa at bis own
expense in order to examine the situation there. His report, entitled
"Impressions of a Roman Catholic regarding South Africa", included
the following :
"... I also encountered persons of my own faith. It is customary at
present to say that we, because we are Catholics, must also be against
South Africa. 1'Iyconclusion now is that most of my co-religionists
support their leader, the Archbishop of Bloemfontein • and that they
consider the policy which is applied in South Africa to be just and
in accordance with the Doctrine of our Church. Naturally everybody
does not agree with everything, but as regards the main Iines the
people are in complete accord.
I am of the opinion that South Africa is a country with a truly
Christian population, and that it is a bastion in the turmoil of
Africa, from which civilization will at some stage radiate forth.
l\lay God lead her in accordance with the same sentiments of
~ Sunday Times, 30 Sep. :r962, p5.
% Jahn, H. E., Yom Kap Nach Kairo: Afrikas Weg In Die Weltpolitik (1963),
p. 31.
3 Smith, A., "The Truth About South Africa", The Peoples Magazine, Vol. 43.
No. 10-12 (Fourth Quarter, 1964), p.15.
• Quoted in Chap. VI, para. 50, supra. REJOl:S-DER OF SOUTH AFRICA 395
justice as heretofore and may He open the eyes of some fellow
Christians in our part of the world so that they can see that we are
on the wrong road in our judgment of Good and Evil 1." (Trans-
lation.) ·
31. ln a Dutch religious publication, De Rotterdamse Kerkbode, an
article on the Church and Mission in the Republic of South Africa by a
well-known Dutch theologist, Reverend G. H. H. Gijmink, ended by
quoting the late Dag Hammerskjold as saying after hisvisit to South Africa:
"I understand your problems completely. I am convinced of the
complete integrity of the people who are executing your policy of
separate development. My visit has given me a better understanding
of your plans. It is clear that much criticism of South Africa is based
on wrong information and is one-sided. I hope that God may give
you time to do what you propose doing 2." (Translation.}
32. William F. Buckley, Jnr., concluded an article on South Africa
n the National Review with the following invitation:
"Sorne day; when you have nothing else to do, corne up with a
solution for South Africa, won't you? But remember the rules of the
game. AH the marbles have to end up each in a cavity-you can't
just throw a few of them away, to make the game simpler. The
people who picked apartheid are solidly committed to it; it is a
radical solution in which they are investing their wit, their passion,
and their means; they are men and women of urbanity and culture
and understanding, and of courage, who are not footing themselves,
or trying to fool the world; men who, the more ignorant of them,
feel the same contempt for the aimlessness of the American approach
to race relations that Americans, the more ignorant of them, feel for
the schematism of the South African approach. They may be wrong,
as we may be; but we should try at least to understand what it is
they are trying to do, and deny ourselves that uneamed smugness
that the bigot shows. I cannot say, 'I approve of Apartheid'-its
ways are alien to my temperament. But I know now it is a sincere
people's effort to fashion the land of peace they want so badly 3."
33. In an article in the Haagsche Post under the title "Apartheid
purely objectively" the following was said:
"Without a trace of fear for the public opinion, Prof. Pieter van
Stempvoort {52)stated in a television interview that apartheid is a
healthy solution for the South African racial problem. He had just
returned from a three weeks visit to South Africa, where he acted
as expert witness in an action for the rehabilitation of Professor of
Theology Albert Geyser 4." (Translation.)
After painting out that Geyser was known to possess moderately pro
gressive views on apartheid, the article stated that T.V. viewers expected
Van Stempvoort, a noted theologist, to retum propagating equal rights
for the Bantu population. But, the article continued, "... he found that
1 NZA W-Kroniek, 1st Year, No. x (15 Sep. 1964).
2 Gijmink, G. J. H., "Kerk en Zending in de Republiek van Suid-Afrika", De
Rotlerdamse Kerkbode, 9 Mar. 1963.
3 Buckley, \V. F., "South African Fortnight", National Review, 15 Jan. rg63,
p. 23.
• Haagsche Post, 8 June 1963. SOUTH WEST AFRICA
policy of the South African government was realistic and completely
justifiable" 1•
34. TheReformed Ecumenica1Synod, an ecumenical bodyrepresenting
approximately 30 Churches and nearly 3 million members of different
colours and races in various parts of the world, recently expressed itself
on racial matters, inter alia, as follows:
"2. Synod states as its belief that God's Word does not teach
either racial integration or separate racial development as a ·uni
versally regulative -principle expressing God's will .for our Christian
conduct in race relations. God's Word speaks relevantly to specific
racial problems but it cannot be simply assumed that every form of
separate racial development is either biblical or anti-biblical;
neither can it simply be assumed that every form of racial integration
is either biblical or anti-biblical. The specific and highly complex
societal relationships within each land and nation must be taken into
careful account when applying the biblical principles of love and
righteousness for all men of all races and all nations.
. . . . . . . . . . . . . . ~ . . .
4. Synod declares that where members of one ethnie group or
i:iation permanently live together with other ethnie groups or nations
· within the same country, all ind.ividuals, groups and nations shall
be equally accorded God-given rights before God and the law, and
each individual, group or nation in the exercise of God-given rights
must not violate the God-given rights of other ind.ividuals, groups
or nations. If two or more nations or ethnie groups in the same country
wish to maintain their respective identities, territorial separation
between these nations or ethnie groups cannot be disapproved on the
basis of principle 2."(ltalics added.)
35. Reverend G. J. H. Gijmink, referred to above 3, wrote in a
pamphlet entitled "Thus I saw South Africa":
"General impression: economically and socially the Bantu are
developing fast. In the long run this can be overtaken only by
integration or a territorial separation impiemented as vigorously as
possible, whereby all black peoples would achieve completely their
own chances. This is now Government policy. Would it, in view of the
Biblical teaching of the fall of man and the many illustrations
thereof in history (Cyprus), not be the best? Is integration not too
idealistic and is autogenous development not more sober? 4" (Trans
lation.)
36. Stanley N. Shaw, editor of Whaley-Eaton Service, Washington,
D.C., wrote:
"Since 1949 the successive South African Governments have
tended increasingly to be reform and welfare minded. Leadership
has been in the hands of dedicated reformers hellbent for action
much in the style of our own New Dealers of the 3o's.
1 Haagsche Post, 8 June 1963.
2 Acts of the Reformed Ecumenical Synod r963 (1963), p.225.
3 Vide para. 31. supra.
• Zo zag ik Zuid-Afrika,Reisdagboek van G. J.H. Gijmink, Herv. Pred. te Rotter
dam-Grotekerkwijkgemeente, Voorzitter N. Z. A.W., under "Johannesburg,
13 April [1964]". REJOINDER OF SOUTH AFRICA 397
Confident of the right as God gives them to see the right, they
trample any opposition, and yet the strange fact of ail this is that
they have the single simple objective of bettering the future1for
black and white alike, for protecting all the underdogs ."
37. Dr. Max Yergen, an American Negro and a well-known consultant
on African affairs, was reported as follows while visiting Umtata, the
capital of the Transkei:
"Separate development is a 'realistic policy' marked by qualities
of sincerity and honest commitment, said Dr. M.ax Yergen, Negro
guest of the National Foundation, at a dinner in the Transkei Legis-
lative Assembly restàurant last night. ·
·· 1 do not hesitate to say that the responsibility rests with the
rest of the world to understand separate developmenf more fully
than they deiµow and to give South Africa a more honest, objec
tive arid fair juçlgment.
. The·ge~ui~e~es~ a~a ~in~erity wïth ;hi~h the ·poÙcyw;s tiacked
made South Africa 'in every sense a bright spot on the continent
of Africa-a spot which can grow even brighter when the rest of
the world understands separate develôpment better' ." -
38. Démians d'Archimhaud, writing in La Revue Française, said:
. "The celebrated geographer EliséeReclus said about 1880: 'Be
tween populations which are mixed but separated by origins, tra
dition, customs, and social condition, there is no other alternative
than graduai assimilation, disappearance through servitude or mas·
sacre'. Not one of these solutions is applicable in Sou~h Africa today
and a division of territory seems the sole possibility.
This should suffi.ceby showing amply that South Africa, far from
opposing the general current of emancipation which unfurls ïn
Africa, on the contrary navigates clearly in this direction. Through
apartheid she anticipates the big socio-political developments ,;vhich
are appearing from one end to the other of the continent of Africa.
There is only one reservation: she wants to see the Bantu people
progress in an orderly and systematic way towards a democratic
governmental autonomy and not to go headlong by chance and
disorder towards chaos and anarchie totalitarianism. as has corne
about in the Congo and in so many other states recently and prema
turely emancipated 3.'~(Translation.)
39. In a recent article in L·aQuotidienne, the following was said:
"In the face of this check of 'decolonisation' which is rapidly
changing into 'decivilisation', by reason of an absolute disregard
for African realities, South Africa, which lives in direct contact v.rith
the African masses, has attempted another experiment: that of
separate government 'apartheid'. Until now, one must recognise
that the results have been good and have allowed an increase in the
standard of living of the populations, whilst in the former Africa
1 Shaw, S. N., "The Truth About South Afr[ca", rJ,.S. News and World Report,
19 Nov. 1962, p. 114.
2 The Star, 25 Nov. r964, p.3. . .
3 d'Archirnbaud, D., "L'Afrique du Sud devant l'opinfon",La Revue J:ranç_aise,
No. 139 (Apr. 1962), p. r5,398 SOUTH WEST AFRICA
possessions, with one or two exceptions, the standard of living is
declining.
With the postulate that the multiracial communities which exist
in the Republic of South Africa are not at the sa.melevel of develop
ment and that each has the right to progress and to dignity, nothing
is more n~rmal than that each community should progress according
to its ability ... The general prosperity of the country issuch th~! !t
can fumish the means for expansion necessary for an acceleratêd
developrnent, a condition which cannot be fulfilled in other African
countries 1." (Translation.)
40. Finally, reference should be made to two foreign authorities quoted
by Applicants, viz., Lord Hailey 2 and Professor Gwendolen Carter 3•
As re~ards Lord Hailey, Respondent has already demonstrated 4 that
the baste premise underlying bis views was not even correct as at the
time when he wrote, and that its incorrectness has been established con
clusively by subsequent events. His criticism that institutions of Local
Governmenf are based on Tribal Councils rather than on electoral bodies
is reminiscent of an attitude also expressed at one stage by Professor
Cowen 5 and which Professor Cowen has freely acknowledged, has now
fallen away 6• And whatever justification there might have been in 1956
for Lord Hailey's reference to an "assumption that discrimination is not
merely an act of expediency but a law of nature" 7it is clear that in the
light of recent pronouncements 8 any basis therefor bas fallen away.
9
If Applicants' comment on Respondent's treatment in the Counter
Memorial of a portion of this extract from Lord Hailey's work is intended
to suggest that Respondent has questioned or denied the impartiality of
Lord Hailey's attitude, this would be unfounded. A reading of the rele
vant passage in the Counter-Memorial 10 renders it abundantly clear that
the contrast between the views expressed by Lord Hailey and those of
other commentators quoted by Respondent, lay in the contents of the
views, and not in the impartiality or otherwise of their authors.
41. The above comments regarding Lord Hailey are of equal applica-
tion to Professor Carter. Her basic criticism is that-
"... the emphasis is mainlyon[apartheid.s] negative aspect, i.e., on
maintaining the European areas of the Union under the exclusive
controlof white South Africans, rather than the positive one of pro
moting a distinctive life for the Bantu 3''.
Respondent disputes that this was a correct statement even when re
gard is had to the date of the publication (1958)from which it was taken.
lt is easy to be mistaken about a matter of emphasis in circumstances
where the negative aspects receive much more publicity and are generally
1 La Quotidienne, Paris. July 1964, pp. 4-5.
zIV, pp. 278-280.
' Ibid., p280.
4 Il,pp. 487-488.
' Vida IV, pp. 322-323.
6 Vitl.i Chap. VI, para,21,sup,a.
7 IV,p. 279.
1 Asto which, vide Chap. V, para. 1o6, supra.
• 9 IV,p. 279, footnote l.
lO Il,pp. 484-487. REJ0IXDER OF SOUTH AFRICA 399
more conspicuous than the positive aspects, which may in substance
nevertheless be of far greater significance or importance. However, be that
as it may, there can be no mistaking that the emphasis at present falls
heavily on the positive aspects of separate development, thus rendering
Professor Carter's judgment outdated.
42. For the reasons set out above, itis submitted that the "evidence"
adduced by Applicants regarding views of govemments and foreign au
thorities does not assist them in establishing that there is no room for,
nor actual existence of, wide differences of opinion regarding the merits of
Respondent's policies. In particular, it is significant that overseas com
mentators who give reasoned and responsible consideration to the cir
cumstances in South Africa, including the possible alternative policies
which could be applied, tend increasingly to favour the policy which
Respondent has formulated on the strength of long acquaintanceship
with and intimate knowledge of realities in Southern Africa. CHAPTER VIII
WEIGHT OF SCIENTIFIC AUTHORITY:
GROUP PREFERENCES AND PREJUDICES
A. General
1
r. Chapter IV B.3.b.3 of the Reply is devoted to an attempt to illus
trate that the "[o]verwhelming weight of contemporary authority in the
political and social sciences" 2,shows that "... Respondent's policy and
practice of apartheid fails (sic) to promote the well-being and social
progress of the inhabitants of the Terri tory ... " 2•It is an attempt, more
particularly, to show that such "contemporary authority in the political
and social sciences" refutes certain "Contentions" which, according to
Applicants, have been advanced by Respondent, as being basic to Res
pondent's policy of separate development. These "Contentions" are
described as follows in the Reply:
(a) "Respondent's Contention Regarding 'Difference' without 'In
feriority' ''3 ;
(b) "Respondent's Contention of Inevitable 'Frustation' (sic) if all
Inhabi tants of the Terri tory are Accorded Equal Opportuni ty'' 4 ;
(c) "Respondent's Contention that as a 'Realistic Government' it
must Support Existing 'Group Reactions' " 5•
Applicants' treatment of the aforementioned thrce "Contentions"
forms the subject-matter of Chapters IX, X and XI, respectively, below.
This Chapter is devoted to a discussion of certain matters raised in the
introduction to Applicants' treatment of the said "Contentions".
2. ln the said introduction Applicants say, with reference to certain
passages in the Counter-Memorial, that-
"Respondent's formulations of its policy of apartheid, or separate
development, are based, inter alia, upon explicit and implicit assump
tions concerning patterns of human behavior, and asserted limits
upon the ability of public authorities to influence or affect such
behavior. These assumptions, stated for the most part in the form
of generalizations, appear clearly, for example, in Respondent's
rationale of its policy on Education in the Territory" 6,
and reference is then made to certain paragraphs in the Counter-Memo
rial dealing with education 7• These "assumptions", or "underlying pre
mises" 6 of Respondent's policy, as Applicants also call them, are said to
be-
"... in effect, that historical circumstances have created a situation
in which members of different 'groups' prefer to 'associate with
1 IV, pp. 302-312.
z Ibid.,p. 277.
3 Ibid.,pp. 305-307.
• Ibid.,pp. 307-308.
s Ibid.,pp. 308-312.
6 Ibid., p. 302.
7
Ibid., and vide footnote 3 on that page. REJOINDER OF SOUTH AFRICA 401
members of their own group'; that 'many Europeans, in ail pro
bability the vast majority, are not prepared to serve in positions
where Ban tu are placed in a position of authority over them'; that
these are 'social phenomena which exist as facts, independently of
any governmental policy, legislation or administrative practiccs'; and
that 'whatever the moral rights or wrongs pertaining to them in
particular situations, there can be no denial that such group reac
tions exist as facts of which due cognizance must needs be taken by
any realistic government' " 1 ;
and it is alleged by Applicants that, on the basis of such "assumptions
and generalizations" Respondent-
. "... accordingly concludes that efforts on its part to seek guarantees
of equality of access of ail individuals to employment. equal educa
tional opportunitics, equal residence rights and the like, would
bring about refusal of white persons to continue to operatc the eco
nomy, with the result that Respondent would be compelled to
reinstate differential opportunities at a later stage and this, in tum,
would have the consequence of creating a sense of 'frustation' and
unhappiness among 'non-white groups' greater than they feel under
the present system, under which they are 'sheltered' from the un
attainable2" .
3
Applicants furthermore refer to a few passages in the Counter-Memorial
to illustrate what they term Respondent's "theme that it is helpless to
act other than as it prescntly docs, if it wishes to act rcsponsibly" ~
They point out that the Odendaal Commission, in explaining its recom
mendations, also expressed the view that-
"... [A]policy of integration is unrealistic, unsound, and undesirable,
and cannot but result in continua! social discrimination, discontent
and frustration, friction and violence-a climate in which no socio
economic progress can be expected to take place. Under such con
ditions the social cost in non-economic terms must outweigh any
possible economic advantages. ln the circumstances it is therefore
desirable to accept the position as itis and not toput idealism be/ore
realism 5".
And they conclude with the statement that Respondent "seeks also to
justify its policy on the basis of comparisons with human behaviour at
all times and in all places" 5; and that Respondent also contends that
"the most analogous situation for comparative purposes is that of all
mixed, plural, or multi-racial communities in the world" 5•
3. Applicants make no attempt to substantiate their aforementioned
allegation that Respondent "seeks also to justify its policy on the basis
of comparisons with human behaviour at ail times and in all places",
but proceed to add that Respondent "suggests that its assumptions hold
for at least a certain category of situations, e.g.. ail African countries" 5.
1
IV, pp. 302-303.
l Ibid., p. 303.
3 Ibid., pp. 303-304.
• Ibid., p. 304.
' Ibid., p. 305. 402 SOUTH WEST AFRICA
Respondent never suggested that its "assumptions" held good for "ail
African countries". ln one of the passages in the Counter-1\lemorial
referred to by Applicants to substantiate this allegation 1, Respondent
stated:
"ln addition to South Africa, varions other countries or Terri
tories in Africa and elsewhere will be referred to by way of example,
comparison, or illustration. Respondent wishes to emphasize at the
outset that such references are not intended to convey any criticism,
express or implied, of any country or territory or its Govemment.
On the contrary, the purpose of such references will in most cases
be to show the similarity of problems found elsewhere in the world,
and to compare the varions rnethods designed to solve them. In
some instances the purpose is to show contrast between conditions
in South West Africa and other territories, necessitating differences
of approach in the framing of policies of legislation and adminis
tration. And in some respects the references also render possible a
measure of comparison of standards of achievement in comparable
circumstances ... "
It is obvious, in Respondent's submission, that Applicants' allegation
is not borne out by what is said in the passage to which they refer. Nor
is it borne out by their reference to a second specific passage in the Coun
ter-.Memorial, where it was stated by Respondent that the "position" of
Natives in the mining industry in South ,vest Africa was "very much the
same as that found elsewhere in Africa" 2•As will appear from the context
in which the statement was made by Respondent, the intention was to
point out that the "position" of Natives in the mining industry was much
the same as elsewhere in Africa because of the lack of experience of Na
tives in the said industry. This is not the same as seeking to justify policy
on the basis of comparisons with situations elsewhere.
The third reference made by Applicants to the Counter-Memorial
in support of their allegation 3 concems education. It was pointed out by
Respondent on the page referrcd to by Applicants that its policy regarding
the content and method of Native education in South \Vest Africa corre
sponded with views which had becn expressedinmanyAfricancountries
including both Applicant States. It is significant that Applicants have
not referred to any scientific views to dispute the soundness of the educa
tional principle involved in the rnatter dealt with by Respondent in the
paragraph in issue, nor have they themselves denied the soundness there
of. ln the circumstances the relevance of Applicants' referenΠto the said
paragraph is not clear.
In support of their above-mentioned statement that Rcspondent "con
tends that the most analogons situation for comparative purposes is that
of ail mixed, plural, or multi-racial communities in the world" 4, Appli
cants refer to a paragraph in the Counter-Memorial in which Respondent
dealt with certain group reactions in South Africa. Respondent stated,
inter alùl, that such reactions were "social phenomena" which "mani-
1 IV, p. 305, footnote 4, reference to Il, p. 383. This statemby Respondent was
intended to cover the contents of Book IV of the Counter-Memorial. to which
Book Applicants also refer without specifying any particular paragraph or page.
2III, p. 57.referred to in IV, p.305, footnote 5.
3
4 IV, p.305, footnote 5, reference to III,p. 381.
Vide para. 2,supra. REJOINDER OF SOUTH AFRICA
403
fest[ed] themselves, to a greater or lesser extent, in mixed or plural
communities throughout the world" 1,and that-
"[d]epencling upon the exact circumstances of a particular situation,
the phenomena may partake of the nature of group preferences,
group self-protection, group assertiveness, group conceptions of
differenŒs in social and cultural level,-or sometimes simply group
prejudices. Whatever their exact nature or causes, and whatever
the moral rights or wrongs pertaining to them in particular situa
tions, there can be no denial that such group reactions exist as facts
of which due cognizance must needs be taken by any realistic govern
2
ment ."
Respondent discusses hereafter the phenomenon of group preferences
and certain related aspects, but before doing so it deals briefly with
Applicants' abovc-mentioned 3 references to certain passages in the
Countcr-Memorial dealing with education.
+ Applicants refer to certain passages in the Counter-Memorial as
containing the "rationale" of Respondent's policy on education in the
Territory 5. Respondent points out that the passages in the Counter
Memorial ,whilst relevant to the question of group reactions, as referred
to in the paragraphs below and again in Chapter X hereafter, and also to
certain aspects of education, cannot properly be said to set out the
"rationale" of Respondent's educational policy in the Territory. Re
spondent does not propose to deal with the matter in any detail, and
merely points out that the said passages are by no means concerned with
ail the various factors, discussed in the Counter-Memorial 6,which under
lie Respondent's system of separate education in South West Africa.
Two further passages relating to education which are quoted by Appli
7
cants hardly seem relevant to the point Applicants seek to make, viz.,
Respondent's alleged "theme that it is helpless to act other than as it
presently does, if it wishes to act responsibly" 7•The first passage 8 deals
with cconomic considcrations flowing from differing social and economic
Ievels of development in the case of the European and indigenous groups
9
of the Territory, whilst the second deals merely with attitudes found
amongst the indigenous groups in regard to compulsory eclucation-i.e.,
not with any inter-group attitudes.
B. Group Preferences and Prejudices
5. ln the paragraphs in which they describe the "undcrlying premises"
of Respondent's policy of separate development, Applicants say that,
according to Respondent, "historical circumstances" created the "situa
tion" referred to in the said paragraph. Respondent no doubt indicated
1111, p. 528 (para. 20 (1)).
2 Ibid., pp. 528-529.
3 Vide para. 2, supra.
• IV, p, 302.
5
The refe.cncc is to III, pp. 528-530, which arc quotedat IV, pp. 266-268. Vide
also the quotations on IV, pp. 303-304 at footnote 3 in the text on p. 303 and atfoot
note r on p. 304 which are likewise concerned with group reactions.
tim, PP· 353 ff.
7 IV, p. 304.
8 At footnote 4 in the text in IV, p. 304.
9 At footnote 5 in the text in ibid., p. 304. SOUTH WEST .4.FRICA
that historical circumstances played a part in the pattern of group rela
tions and reactions referred to by it, but it did not say, or suggest, that the
situation was whollv the result of historical circumstances. In ·fact,.
Respondent made i( clear that it was dealing not only with a situation
which was the creation of historical circumstances 1,but also with "social
phenomena" which manifested themselves, "to a greater or lesser extent,
in mixed or plural communities throughout the world" 2•
6. The phenomenon of preferential association among men is not a.
mere "assumption", as Applicants suggest 1,but a generaHy accepted and
scientifically cstablished fact on the pervasiveness of which many social.
scientists have commented. The late Professor Fairchild said:
"From time immemorial it has been inherent in the very nature
of human group identification that the members of any particular
group should feel more warmly attracted and attached to other
members of their own group than to outsiders. It is the very essence
of human association that persons who live togethcr continuously
in more or Jess intimate bonds of society should be characterized
by many similarities of thought, feeling, and action, and moreover
that they should regard their own ways as right and good and pre
ferable to those of strangers ... 4 "
Professor George A. Lundberg, former President of the American
Sociological Society, says:
"In every society men react selectively to their fellow men, in the
scnse of seeking the association of somc and avoiding the association
of others. Selective association is necessarily based on some observ
able differences between those whose association we seek and those
whose association we avoid ... S",
and "[tJhe phenomenon of intergroup discrimination is as widespread
and as old as human society" 6.
Professor A. James Gregor says in this connection that the phenome
non of preferential association-"the preference for one's kind" -is 7 "an
elementary social fact" 7, and that it is "characteristic of ail social
animais" 7.
Science establishes that the basis for such preferential, or selective,.
• Vide the second quota tian from the Reply in para. 2,supra, which is part of para.
20 (/} at III, p. 528. This sub·para. (/) refers, in terms,to South Africa, because it
forms part of a paragraph written in reply ta an allegation regarding an aspect of
higher education in South Africa. There is therefore no substance in Applicants'
allegation-vide footnote 2 on IV, p. 266-that "[t]he omission of reference here ta.
South West Africa underscores the extent ta which Respondent's policies in the
mandated Territory are essentially projections of its policies in the Republic". It
appears Irom other paragraphs in the Counter-:'v1emorial that there has at ail times.
been social separation in the Territory between Europeans and non-Europeans, and
to a certain extent, also between the non-European groups: vide Ill, pp. 3G7-3GS..
~ Ill,p. 528 (para. 20 (/)).
3 IV, p. 302.
• Fairchild, H., Race and Nationality (1947), p. 4.
5 Lundberg, G. A., "Some Neglected Aspects of the 'Minorities' Problem",
Modern Age (19.58). Reprint in The Mankind Quarlerly, Vol. III, No. 4 (Apr.-June-
1963), p. 212.
6 Ibid., p.227.
7 Gregor, A. J., "On the Nature of Prejudice". The Eugenics Review. Vol. LU
(Apr. 1960-Jan. r96r), p. 2n. REJOINDER OF SOUTH AFRlCA
association is provided lby observed similarities and, conversely, dif
ferences. Professor Lundberg says in this regard, as appears from the
-passage quoted above, that-
"[s]elective association is necessarily based on some observable
differences between those whose association we scek and those whose
association we avoid ... ". ·
Professor Niceforo has expressed the view that group interaction is
governed by an attraction of similars and a corresponding repulsion of
<lissimilars 1•Professor Gregor says in this regard:
"There can be little serious doubt that the 'sentiment of identity',
what Niceforo calls the 'invariable law' of 'attraction of similars and
repulsion of dissimilars' is somehow rooted in the nature of man, a
nature which man shares in its most significant fcatures with ail
social animais ...
A group is sustained by mutualattraction ...
ln every complex society men react selectivcly to their fellows.
Preferential association is based_upon observable differences 2."
This sense of similarity, or "sentiment of identity' ', is often referred
to in social science literature as a '.'shared consciousness of kind''.. This
"consciousness of kind'' constitutes in the words of one of the founders·
-0f the science of social psychology, Professor William MacDougall,
"the principal force underlying ail human associations" 3• It has its
4
counterpart in what has been called "a consciousness of difference" and,
it has been stated by Professor I. D. J\lacCrone, who is quoted by Appli
cants in another connection 5,that the stronger the identification between
the members of a group, the stronger· the feeling against "alien" groups:
, . ''The identification which lies at the basis of group psychology,
white leading to the development of those attitudes and impulses
without which a genuine group-life would be impossible, at the same
tirne, and necessarily, gives rise to those veiled or overt manifesta
tions of hostility directed against others which constitute the essence
of the psychology of group prejudice. The greater and more intense
the group feeling, that is, the stronger the identification bctween
members of a group, the greater is the strength of the prejudice
against the alien group and against those who are not members of
one's own group. Social psychology rnay, or may not, have its laws,
but therc can be Iittle doubt about the existence of that prinêipleof
group psychology according to which the feeling for one's own group
and the feeling against sorne other group tend to wax and wane in
direct proportion to one another 6_''
7. Social scientists teach that the differences which give rise to group
preferences and prejudices can he of rnany kinds, and that they can,
<lepending on circumstances, have different consequences. It has been
said in this connection that- -- - ·- -·
1 According to Gregor, A. J., "The Dynamics of Prejudice", The J\lankind
Quarter/y, Vol. Ill, Xo. 2 (1962), p. 80.
2 Ibid., pp.So-8I.
3 l'lfacDougall, W., The Croup Mind (1920), p. 5.
~ Hoebel, E. A., Man in the PYimitive World (1958~. p. 117.
5 IV, p. 307 and vide Chap. H, para. 6, infra.
<> ::\IacCroneI. D., Raee Attitudes in South Africa (1957), p. 249. SOUTH WEST AFRICA
406
"[t]he differences which are the basis for selective association are of
indefinitely large yariety, of all degrees of visibility and subtlety,
1
and vastly different in social consequences ... ",
and that-
''[g]roup antagonisms seemto beinevitable when two peoples in contact
with each other may be distinguished by ditferentiating characteristics,
either inborn or cultural, and are actual or potential competitors. Only
by eliminating the outward evidences of distinction, such as color,
dress, or language, or by removing the competitive factor, may
racial antagonisms be destroyed .''
It has been said, also, that-
"[t]hese differences can reside ... in attitudes, religious opm10ns,
speech, aesthetic judgements, technical achievements or observable
physical diffe~ences. In varying contexts, in different areas of com
petition one or the other or several in combination will be of primary
importance 3",
and that overt physical differences play an important part in preferential
association and group identification because such distinctions are of
"permanent duration and of high social visibility" 4, and provide a
"broad and sure base for group identification" 4. Professor Gregor has
said in this connection:
"Where differences between groups in contact possess high social
visibility (such 'visibility' can involve cultural differences or physical
differences), relations are sensitive and hostility is the consequence
of seemingly trivial provocation. This is particularly true when
groups singularly .marked by anthropometrical distinctions corne
into contact. Cultural differences can, in a relatively short period, be
ameliorated. Physical differences persist to foster social distance
which characterizes out-group avoidance. Even a superficial con
sideration of race (understood in its restricted sense) relations,
i.e.contact between black and white, in the United States and
Britain, indicate that the Negro, one in class, language, religion and
general culture with the host people, remains in essentially caste
status, facing overt or covert prejudice in their day to day contacts
with their white conationals 5.''
And also:
"ln the United States, where immigrant populations composed
of allthe European sub-races basically akin to the native stock have
been, by and large, absorbed, the Negro and the Asiatic remain in
caste isolation.
This is true in spite of the fact that the Negro is one with the
majority of Americans with respect to language, religion, customs
1 Lundberg, G. A., "Sorne Neglected Aspects of the 'Minorities' Problem",
Modern Age (1958). Reprint in The Mankind Quarlerly, Vol. III, No. 4 (Apt.-June
1963), p. 212.
2 Young, D., American Minorit;• Peoples (r932), p. 586.
3 Gregor, A. J., "On the Nature of Prejudice", The Eugenics Review, Vol. LU
(Apr. 1960-Jan. 196r). p. 218.
4 Ibid., p. 2r9.
5 Gregor, A. J., "The Biosocial Nature of Prejudice", Genus, Vol. XVIII, No. 1-4
(1962), pp. 13-14. REJOINDER OF SOUTH AFRICA
and general allegiance ... The retention of social distance seems a
1
fonction of high social visibility ."
Professor Kenneth B. Clark, whose views are referred to by Applicants
2
in another connection , points out in this regard that in the United"
States "[d]isadvantaged white groups have a greater chance of increasing
their economic status and being assimilated into the dominant culture" 3
than Negroes, since "[t]he barriers against·such assimilation are more·
formidable for the Negro child and are further complicated by the fact ·
that everyone can see what his coloris" 4.
8. Social science studies teach, ·and contemporary events in various
countries of the world confirm 5,that the nature and intensity of group
attitudes are, in large part, determined by the degree of difference
between groups, the permanence of the respective differences, and the
nature of the contact situation. And, furthermore, that the potential for
intergroup tension and for social disorder materially increases where
differences between groups are emphatic, particularly physical differences
of high social visibility; where group differences have, in the past, given
rise to group conflicts; where there are threats of economic competition
or loss of status; and where there are gross differences in demographic
strength so that one group feels itself or its traditional values threatened
by another group. Where differences between ethnie groups are of such
extent and permanence that they prevent their assimilation on a vo]un
tary basis, attempts at enforcing assimilation may evoke strong and
violent reactions. Thus Professor Gregor says:
"We can generalize (bearing in mind exceptions which can
conceivably result from singular socio-political circumstances) that
where two peoples, marked by gross physical dissimilarities make
contilct, the attempt at assimilation is invariably met with tensions
and disharmonies which it is almost beyond the power of men to
resolve 6."
9. As was pointed out above 7,the phenomenon of group preferences is
"as widespread and as old as human society", and it has been remarked
that the prospect of eliminating that disposition in rnan is remote. Thus
Professor Gregor says:
"Sanguine hopes that the disposition to preferential association
will be eliminated by education, by legislation or by time itself seem
belied by historie experience. Only a sensitive awareness of the
complexity of the problems which face our world in the increasingly
frequent contact of races and cultures can assist us in avoiding the
tragedy that has attended such contacts in the past 8."
1Gregor, A. J., "On The Nature of Prejudice", The Eugenics Review, Vol. Lli
(Apr. 196o-Jan. 196!), p.220.
2 IV, p. 307 and Chap. X, para. 8, infra.
3 Clark, K. B., Prejudice and Your Child (1955), p. 50.
+ Ibid. Vide also Chap. XI, paras. 6-7, i1ifra.
) Vide Chap. III, supra, and also Chap. XI, paras. 6-7, infra.
6Gregor, A. J.. "On The Nature of Prejudice", The Eugenics Review, Vol. Lli
(Apr. 1960-Jan. 1961), p.219.
7 Vide para. 6,supra.
9 Gregor, A. J., "On The Nature of Prejudice", The Eugenics Re11iew, Vol. LII
(Apr. 196o-Jan. 1961), p. 222. SOUTH WEST AFRICN
408.
C. Conclusion . .
. .
IO. It seems obvious, in the light of the aforegoing, that where the
population of a country is composed of heterogeneous groups; the
potentiality for·inter-group tension and conflict can be considerable,
particularly in a country like South West Africa where there are sub
stantial differences relating to race (i.e., physical differences), culture,
social institutions, Ianguage and levels of. development between the
various groups. That such differences mark the various population groups
of the Territory, cannot be questioned, and the problem therefore is how
best to ensure the peaceful development of all the various groups and
their members. In Respondent's view existing group differences and atti
tudes in the Territory are such that any atteinpt designed at compelling
groups to surrender their identities, or at forcing them into an unwanted
pattern of integratfon, ,will generate such tension· and hostility as to
wreck all hope of peaceful development and progress in the future. A
policy which aims at such development and progress should, in Respond
ent's view, take due note of the differences between the groups anô of the
attendant preferences ·and ·prejudices; give due recognition to the
separate identities of the groups; regulate contact between the groups in
such a way as to render each group safe against intrusion or domination
by any of the others; and seek to obtain as much co:.operation as possible
between the various groups iri those fields where contact between them
will not be accompanied by tension, fear or friction .
..,.,_, CHAPTER iX
WEIGHT OF SCIENTIFIC AUTHORITY:
"DIFFERENCE'' WITHOUT "INFERIORITY"
A. Introducfory
1. This Chapter deals with Applicants' treatment of what they des
cribe as Respondent's "Contention regarding 'Difference'without 'Jnferi
ority' " 1.
In the Counter-Memorial Respondent made it clear that its policy of
separate development was "not based on a concept of superiority or
inferiority, but merely on the fact of people being different" 2,and atten
tion was on more than one occasion drawn to differences between the
various population groups of the Territory. Thus-ta mention only one
example-Respondent referred to differences between the White and the
indigenous groups, and to the effect thereof, in the following terms:
"The vast differences between the White group and the indigenous
groups-differences relating to civilization and culture, levels of
development, standards of living and ways of life, social and political
institutions and habits of thought-militated against any idea of an
integrated society, socially or politically 3.''
Respondent made it plain, in other words, that its policy was based on
group differences, and not on any concept of superiority or inferiority.
In the circumstances there is, in Respondent's submission, no justification
for Applicants' describing Respondent's statement that "[t]he policy of
separate development is not based on a concept of superiority, but merely
on the fact of being different" as "ambiguous and meaningless" \ nor for
5
their pretended ignorance as to the "intended significance" of the said
statement.
2. Applicants allege in the Reply that Respondent's policy, as charac
terized by them, "... necessarily Ïmplies not only that some 'groups'
are inferior, but that individual members thereof are 'permanently and
irremediably inferior' " 5, and they proceed to say that-
"... the overwhelming weight of authority in the sciences of biology,
psychology, sociology and anthropology argue (sic) that no scientific
evidence supports an assumption that groups or races differ in
nately 5".
In support of this statement, whatever its real meaning may be 6 ,
Applicants refer to a South African Professer of Anatomy at IV, page 306
and to "additional authorities" in Annex 12 to the Reply 7.
1IV, pp. 305-306 and vide also Annex 12, pp. 500-.502.
2 II, p.471 (para. 23).
3 Ibid., p.422 (para. 7).
• IV, p. 269.
' Ibid., p. 306.
• Vide para. 5 (c), infra.
1 IV, pp. 500-502.410 SOUTH WEST AFRICA
In the paragraphs which follow, Respondent will first deal with the
alleged necessary implication of inferiority. Then, after briefly stating its
attitude in regard to Applicants' statement concerning modem science,
Respondent will refer to modem scientific views, and also comment
bricfly on some of the views quoted by Applicants.
B. Alleged Necessary Implication ·ofInferiority
3. Respondent has stated positively that its policy of separate develop
ment is "not based on a concept of superiority or inferiority" , and it
rejects Applicants' allegation that it must, nevertheless, necessarily be
implied that the policy is based on an assumption ''not only that some
'groups' are inferi01. but that individual members thereof are 'perman
ently and irremecliaL1yinferior' " 2•
In an earlier part of the Reply, Applicants make the allegation that-
"[t]he necessary and direct consequence of allotting rights and
burdcns by treating 'groups' di[/erently is the treatment of at least
some individuals in some 'groups' as inferior 3",
and that members of non-White groups are allotted " 'permanently and
irremediably inferior' status, rights and opportunities" 4. Respondent
does not intend to ùeal here with the truth or otherwise of these alle
gations, but points out that they amount to something differcnt from
saying 5 that Respondent's policy is based on the concept that some
groups and their mcmbers are inferior.
It may be-although it is not clear that it is so-that Applicants seek
to draw the infcrence that Respondent regards some groups and their
members as inferior from the mere fact that the various groups are
treated differently 6•If so, it is denied that the inference can validly be
drawn. Applicants, it may be pointed out, speak in this regard of the
"fallacious and self-contradictory nature of Respondent's profession that
the policy of apartheid, or separate development, is 'not based on people
being inferior but being different' " 6•This "fallacy", they say, is "reflected
6
in Respondent's own inconsistent formulations of its policy" ,and the
inconsistency is alleged to exist in the following two statements which
appear in the Counter-Memorial, viz.: "We prefer each of our population
groups to be controlled and governed by themselves as nations are ... ",
and-
"[w]here is the evil in ... the fact that in the transition stage the
guardian must needs keep the ward in hand and teach him and guide
him and check him where necessary? This is separate development 3."
(ltalics added by Applicants.}
Respondcnt fails to see what inconsistency there can be saie{to be in
the two statemcnts. The first states the aim of the policy, whilst the
second deals ~ith the relationship in South Africa between the guardian
(White group} and the ward (Native groups) in the transition stage, i.e.,
1n, p. 471 (para. 23).
2 IV, p. 306.
3
Ibid., p.275.
+ Ibid.p. 276.
$ As Applicants do at IV, p. 306.
~ Vide the emphasis on "diOerenlly" at IV, p. 275. REJOINDER OF SOUTH AFRICA 4Il
while in transition to the stage mentioned in the first statement. It is
clear, furthermore, that there is no suggestion of inferiority on the part
of the ward in the statements quoted-only the implication of immaturity
and as yet insufficient development on its part.
4. It is clear, in Respondent's submission, that Applicants have not
shown why an inference of inferiority should be drawn-let alone whyit
must necessarily be drawn. They are, in the circumstances, left with the
mere assertion of such an inference, and with a reference to an argument
by Mr. Philip Mason, in the following terras:
" ... as a matter of choice, people may prefer to mix socially with
those of their own group, but to say that by law people of one group
must mix with no others can really only proceed from a conviction
not only that the other groups arc inferior but that every member of
each of the other groups is permanently and irremediably inferior 1".
Mr. Mason's reasoning in the above passage, and the conclusion to
which it leads him, are totally invalid. The basic reason for this is that he
sets out from a premise which is erroneous, at least to the extent of
constituting serious over-simplification. He does not explain from what
source he derives the description of Respondent's policies as "say[ing]
that by law people of one group must mix with no others". There are, of
course, Jaws which have the effect of restricting, although by no means
totally excluding, social contact between persons of various groups.
But such restrictions are mostly of reciprocal application, and they
represent only one facet of pohcies designed to find a solution for
extremely difficult problems of group relations in the South African
context. Where the ultimate aims of the whole policy, i.e., separate self
realization for each group, are properly nnderstood by members of t2e
groups concerned, as is happening in an ever-increasing measure ,and
as they corne to experience the emphasis which is placed upon respect for
their distinctive cultures and for their dignity as human beings, there is
ever Jess occasion for anyone to regard himself as being treated as
"pennanently and irremediably inferior".
That restrictive measures may be considered necessary to avoid
complex problems of govemment, without any suggestion of inferiority
on the part of the group concemed, has been recognized in certain
countries which are aware of the difficulties which arise in heterogeneous
situations. Thus, as has been noted 3. the immigration of non-Europeans
into Australia {which has a non-European population of littlc more than
30,000) is limited, and the purposc of this pohcy has been officially stated
to be-
"... to maintain homogeneity of Australian people in order to avoid
insoluble problems which arise from inability of Europeans and non
Europeans in any one country to merge successfully into a single
hannonious community. In such an attitude there is not the slightest
suggestion that Europeans are the superior race 4".
Respondent further refers in general to facts and comment dealt with
1VI, p. 339 and·vide p. 306, footnotel.
2 Vide, e.g., Chap. VI, paras. 65-84, supra.
3 Vide Chap. III, para. 17, supra.
• In an article entitled''Commonwealth Check on Entry' of Non-Whites", The
Times (London), datecl 18 Apr. 1962. · -·. · · ·412 SOUTH WEST AFRICA
in Chapter III of this section. which clearly demonstrate the inability of
many peoples between whom there is a large measure of difference-e.g.,
in colour, culture, standards of development, or the like-to become
assimilated with each other, not because of any question of innate
inferiority or superiority, .but merely because the differences are too
great. Itcannot validiy be suggested that differentiation which is aimed
at avoiding group reactions of the kind mentioned in the said Chàpter
and in Chapter VIII immediately above must nevertheless be con
sidered to "proceed from a conviction" of superiority or inferiority on the
part of any group or its members. ' ·
ln all the circumstances Respondent says that the inference ·which
Applicants and i1r. Mason seek to draw, is completely unwarranted.
C. Respondent's Attitude in Regard to Applicants' Statement on
Modem Science
5. Applicants say that-
" ... the overwhelming weight of authority in the sciences of biology,
psychology, sociology and ar:ithropology argue [sic] that no scientific
evidence supports an assumption that groups or races differ in
nately 1".
As stated before, Respondent's policy of separate development is not
based on the concept of inferiority or superiority on the part of any
group. Whilst the policy no doubt takes account of the present stages of
development of the respective population groups, it does not rest on any
assumption of innate, or biological, differences in the potential socio
cultural ability.of those groups. If it should be a scientific fact-~espond
ent does not sav that it is a fact-that observed differences in the cul
tural developme;t and achievements of different groups are, wholly or in
substantial part, the consequence of irremediable biological, or hereditary,
determinanfs governing cultural development, science would lend
support to a policy which took proper account of such differences and
factors. But, and Respondent stresses the point, whilst the existence of
such determinants could, if established, provide further evidence of the
desirability of a policy of separate development in circumstances as
existing in Southern Africa, the absence of such biological, or hereditary,
determinants does not in the slightest degree affect the argument for
separate development. .
Applicants' above-quoted statement must obviously be qualified so
as to exclude at least some physical differences, since certain physical
characters constitute the very basis on which racial classification is made
by scientists at the present time 2.Thus qualified, Respondent would have
no quarre! with the statement if it is intended to convey-
(i) that scientific evidence avaHab]e at present can give no definite
answer to the question whether races differ innately, and
(ii) that it is, for that reason, .wrong to assume that such differences
exist. just as it would be wrong.to assume that they do not exist.
1
2 IV, p.306.
Vide, e.g., the following in "State~en.t On The Nature Of Race And Race
Differenèes", by Physical Anthropolog~ts and Geneticists, June 195r, in Unesco:
The Race Concept (1951), p. 12: "In its anthropological sense, the word 'race'
should be reserved for group~ of mankipçl possessing,well-developedand pri_marily
heritable physical differences from other groups.'_.:t.. ·. .-:, REJOINDER OF SOUTH AFRICA
It is, howevcr, not clear that this is the meaning which Applicants
intend to convey; for, although it is said, in negative form, that "no
scientifi.c evidence supports an assumption that groups or races <lifter
innately", the impression is nevertheless created that Applicants'
contention is that most scientists hold the view that present scientifi.c
knowledge establishes the absence of such differences. This impression is
strengthened when regard is had to the positive form in which statements
are made by some of the authorities quoted by Applicants. The following
examples will suffice:
"The scientific evidence indicates that t_herange of mental capa
cities in all ethnie groups is much the same ."
" ... If their contributions are distinctive-and there can be little
doubt that they are-the fact is to be accounted for by geographical,
historical, and sociological circumstances, not by special apti-
tudes ... 2" •
It would seem, therefore, that Applicants' contention is that the
weight of modern scientific authority is to the effect that there are, in
fact, no innate differences between races. If this is indeed their contention
as to the weight of presentscientific kno_wledge,_itis disputed by Respond-
ent. · · ' · ·'
In the paragraphs which follow Respondent will show that modern
scientists hold opposing views as to the question whether or not there are
innate mental differences between races. Inasmuch as Applicants have
referred to individual views that no such differences exist, Respondent
will refer only to views that such differences do exist, and, also, to views
that science cannot give a definite answer one way or the other .
. 6. Confiicting scientific views.
(a) In the introduction to the Unesco publication, The Race Concept,
which contains a statement on the nature of race and race dif
ferences, as drawn up by a number of physical anthropologists and
geneticists at the request of Unesco.in 1951, and also observations
and comments by other scientists on the said statement, it is said:
"The concept of race and the question whether or not there are
mental differences between races are highly controversial matters
on which anthropologists and ~eneticists hold widely divergent
3
views, defending them more pass1onately than any other theory .''
(b) Arthur G. J. Cryns, of the Departme!lt 9,fPsychology, University of
Detroit, U.S.A., writes asfollqws of two opposing schools of thought:
"As to the interpretation of their research data, the students of
racial intelligence gen'erà'.lly'belongto either of the following schools
of thought. One category, taking a predominantly nativistic view,
ëonceives the observed Negro-White differences in intelligence test
observance as indicative of an inbom intellectual inferiority of
:,the Negro. The other, adhering to a more pronounced environmental
· viewpoint, liolds thât -theînferior test performance of the Negro is
,largely, _if.not fully, accounted for by unfavorable environmental
faè.tors·such as the lack or ina.dequacy of ~duq1tional opportunity,
• 0~C • 0 • 0 ,,
1 IV, An_ne_x .2, p. 600 (para. (")).
z'"t[bià.p. 6or (para. (viii)). "· \
3 Unesco: The Race Concept (z951), pp.·10-1z. .•i:,i,·414 SOUTH WEST AF!UCA
intellectual stimulation, socio-economic challenges, the absence of
truly 'culture-free' tests, etc.... This dichotomy of interpretation,
so clearly crystalized in the American Iiterature on cross-cultural
intelligence research, may also be found in the African studics 1."
(c) Dr. G. M. Morant, of the University of London. refers to opposing
points of view-on the question in the following terms:
"The general inference is that there are racial difference::. in
mentality, although clear demonstration of them-regardmg
particular characters and particular pairs of populations-is nut
available yet. Anyone who enunciates this conclusion is Hable to
be misunderstood; discussion of the problem has always tended
to run to extremes. On the one hand there have been writers who
asserted that there are racial differences of profound significance,
and opposed to them have been others who have vehemently
denied the existence of any inborn inequalities between groups of
2
people ."
(d) Professor Dwight J. Ingle, Chairman of the Department of Physi
ology of the University of Chicago, says the following:
"Racists have drawn the firm conclusion that the Negro race is
genetically inferior to other races in intelligence, while some equali
tarians have drawn the firm conclusion that all races are equally
endowed with intelligence. Both groups support their respective
dogma by spurious argument, emotionalism, and intolerance, also
known as bigotry 3."
7. Views that thereare,orthatthereprobably(orpossibly) are,ditferences.
(a) Professor H. J. Muller, an internationally known geneticist _who
has been described as "one of. the leading modern biologists" 4
· ·says:
"... in view of the admitted existence of some physically expressed
hereditary differences of a conspicuous nature, between the averages
or the medians of the races, it would be strange if there were not also
some hereditary differences affecting the mental characteristics
which develop in a given environment, between these averages
or medians. At the same time, these mental differences might
usually be unimportant in comparison with those between indivi
duals of the same races."
"To the great majority of geneticists it seems absurd to suppose
that psychological characteristics are subject to entirely different
laws of heredity or devefopment that other biological characteris
tics5."
"... we do have every reason to infer tha t genetic differences, and
1 Cryns, A. G. J.,"African Intelligence; A Critical Survey of Cross-Cultural
Intelligence Research In Africa South of The Sahara", journal of Social Psychology,
Vol. 57 (1962), pp. 292-293. .
z Marant, G. M., The Significance of Racial DiOerences (1952), p.46. Morant is
cited by Applicants on IV,p'.600 (para.(ii)).
3 lngle, O. J.,"Comments on the Teachings of Carleton Putnam", The Mankind
Quartuly, Vol. IV, No. 1 (1963), p. 28. .. .
• Vide Dunn, L. C. and Dobzhansky, Th.,Huedity;Race and Society (1959), p. 14.
' Unesco; The Race CQncept (1951), p. 49.1 ... • •·· ·· • ·
. -. REJOINDER OF SOUTH AFRICA
even important ones, probably do exist between one living racial
w-oup of men and another ... 1".
'... it seems to me that it is entirely incorrect to say ([that]-:
'Available scientific knowledge provides no basis for believing that
the groups of mankind differ in their innate capacity for intellcctual
and emotional development.' For this passage would imply that
given the same environment, the same degree and type of develop
ment would be attained by the average (or median) of ail races 2."
(b) Dr. C. D. Darlington, Sherardian Professor at the University of
Oxford, England, speaks of the" ... diverse, theineradicably diverse.
gifts, talents, capacities ... " 3 of each race. He is also recorded as
having said that-
"[dJifferent kinds of results have arisen from race crossing in all
parts of the. world. They show reliably and conclusively that the
progeny are different in innate capacity from either parent of the
so-called pure race and that these differences are sometimes ad
vantageous and sometimes disadvantageous, to one or both in the
circumstances obtaining. Simply because the innate capacities
of ail races of men, as of animais, are different, and are suited to
different circumstances and habitats 4."
(c) Professor A. H. Sturtevant, a geneticist of the California Institute
of Technology, U.S.A., has written:
"There is excellent evidence for the existence of individual
differences in mental characteristics ... There can also be little
question that there are at least statistical differences between races
in such genes 5."
And, speaking of race mixture:
"It is true that such crosses give the possibility of producing some
·individuals that are 'better' (in any specified respect), than any to be
found in either parental race~but experience and theory are agreed
that, after the first generation, these are much less likely to be found
than are 'inferior' individuals. The result of these considerations is
that, even on a purely physiological levcl, crosses between quite
different races are not free of danger 6."
(d) Professor Sir Ronald Fisher, a geneticist of the University of
Cambridge, England, believes that-
"[a]vailable scientific knowledge provides a firm basis for believing
that the groups of mankind differ in their innate capacity for intel
lectual and emotional development, seeing that such groups do
differ undoubtedly in a very large number of their genes 7".
(e) Professor K. F. Saller, of the Anthropological Institute of the
University of Munich, Germany, objected to the aforementioned
sta tement on race in the following terms :
1
2 Unesco: TM Race Concept (1951), p. 50.
JIbid.,pp. 26.
• Ibid., p.58. .
' Ibid., p.51.
<>Ibid., p.64.
; Ibid:, p. '61. Vidalso p:'52: SOUTH WES'f AFRICA
"... I feel that there is a certain danger in the Statement, especially
in so far as the drafts hitherto evolved have utterly disregarded or
even flatly denied the existence of mental (psychic) differences
between certain groups of peoples. We may or may not give the
name of race to such groups of human beings, who differ in their
inherited psychic characteristics; but the whole science of eugenics
is based on the existence of such hereditary psychic differences ."
(!) Professor L. S. B. Leakey, a British social anthropologist, says:
"As a social anthropologist, I naturally accept and even stress the
fact that there are major differences, both mental and psychological,
which separate the different races of mankind. Indeed, I would be
inclined to suggest that however great may be the physical diffe
rences between such races as the European and the Negro, the
mental and psychological differcnces are greater stiU 2."
(g) Dr. David C. Rife, an American geneticist, whilst saying that
"no completely valid tests of intelligence have as yet been devised",
states:
"Even if we discard all the results of test comparison between
different kiths and racial groups as being unreliable, we can be
sure that if intelligence has a genetic basis, both individuals and
populations differ with respect to it. Statements to the cffect thà.t
individual differences in intelligence are largely hereditary and
those between populations are environmental are not only naïve,
but can lead to grave misconceptions on the part of the general
public 3.''
Speaking of a passage in the aforesaid Unesco statement on race to
the effect that "with respect to most, if not all, measurable charac
ters,the differences among individuals belonging to the same race are
greaterthan the differences that occur between the observed averages
for two or more races within the same major group" i,Rife says:
"True, but what of it? It may also be stated that the average
differences between individuals belonging to the same race are
usually less than the average differences between people belonging
to di"(Jeren taces 5."
(h)
J. B. S. Haldane, an internationally recognized geneticist, says:
"1 am inclined to believe that there are innate statistical differ
ences in various capacities between different human races ... 6"
(i) Professor Fritz Lenz,a geneticist of the Institute of Human Heredity,
Goettingen, says:
"Contrary to what is stated in this paragraph [i.e., of the afore
mentioned Unesco statement on race] it seems to me that there 'is
1 Unesco: The Race Concept (r95r), p. 32.
2 Leakey, L. S. B.,The Progress and Evolution of Man· in ·Africa (1961), p.· 5.
3 Rife,D. C., Heredity and Human Nature (1959), p.218. .
~ Vide also IV, Annex 12, p. 601 (para. (vi)), for a simila.r statement.
s Rife,op. cit.,p. 248. Vide also Genna: " ... it is also true that diff1<rences·be
tween races are usually greater than those which may exist between individuals of
the same race": Unesco: The Race Concept (1951), p. 62. .
6 Haldane, ]. B. S., "Comments", Current Anthropology (Oct. 1961), pp. 322-323. REJOINDER OF SOUTH AFRICA 417
very strong evidcnce to show that genetic differences are a 'major
1
factor' in producing diffcrences between cultural groups ."
(j) S. D. Porteus, emeritus Professor of Experimental Psychology
and recipient of the 1963 Amcrican Psychological Association
Award in Experimental Psychology, and Professor A. James
Gregorsay:
"In both ethnie groups and individuals, cultural or nurtural ad
vantages have considerable influence, but as determining factors
corne far short of outweighing the natural and probably hercditary
differences in mentality 2."
(k) Kluckhohn, one of the authoritics cited by Applicants 3. believes
that potentialities for certain traits may be present in different
proportions among the various human stocks:
"i'.\lental, temperamental, and character traits are almost im
possible to isolate in pure form because from the vcry day of birth
the influence of social tradition modifies the biologically inherited
trends. lt is, however, more than possible that the potentialities
for such traits are present in different proportions among the various
human stocks. The distribution of musical and _other special capa
dties does not appear to be cqual in all peoples. Biological causes
are probably involved; and, even though these account for only a
small fraction of cultural differences, they are still true causes i.' ·
8. Views that scieiice cannot furnish a de{inite answer.
(a) L. C. Dunn and Th. Dobzhansky say:
"... the question of whether or not human races differ in hereditary
psycholo~ical traits for the time being must be regarded as
open ... 5 1t.
(b) G. M. Morant says:
"[t]here arc racial differen.ces in physical characters, but whetheT
the situation is the same or not for mental characters is a question
which cannot be answered definitely at pŒsent-mental characters
being more difficult to define and assess, and none hitherto used
being very satisfactory for the purpose of making racial compari
sons 6".
,{c) Michel Leiris states:
"... in the present condition of science it is not possible to say of
1 Unesco: The Race Concept {r95r), p.57. .
2 Porteus, S. D. and Gregor, A. J.. "Studies in Intercultural Tcsting", Per
.ceptual and .Molor Skills, Vol. 16, No. 3 (1963), p. 722.
3 IV, Annex 12, p. 600 (para. (i)).
• Kluckhohn, C., .~1irror For Afan (1949), pp. 124-125. A similar view was ex,
-pressed by the late Professor André Dreyfus, a biologist of the University of Sao
Paulo,. Brazil. Certain characteristics,he .said, had a "genetic substratum". He
-referred to "musical talent, which, admittedly, can develop only in a suitable en
vironment, but which is quite obviously of genetic origin": vide Unesco: The Race
·Concept (1951) p. 21. lt has been said that "Many scientists believe that there may
be special irinate èapacities which occur more frequently in,one race than in another
... ":ibid.,pp.82-83. 1
5 Dunn, L. C. and Dobzhansky, Th., Heredity, Race and Society (1959), p. 134.
"These,authorities are referred t('l°by Applicantsin IV, Annex 12,p. 601 (para. (vi)).
6 !\forant, G. M.,The Significance of Racial Differences (1952), p,45. . · ·· · . .1 SOUTH WEST AFRICA
a particular race that it is more (or less) 'intelligent' than another 1".
(à) Professor S. E. Luria, of the Department of Bacteriology, University
of Illinois, U.S.A., is recorded as having said that-
"... 'innate capacities' are not amenable now to measurement at
the level of national groups, particularly because of the preponderant
2
role of 'cultural heredity' in any human community ". •
(e) Professor Ingle, referred to above 3,says:
"Are there significant averagedifferences in the geneticcomponent
of intelligence and otherqualities of intellect of Negroes and Whites?
I am of the opinion that the question is unsettled ... 4"
"It is clearly established that there is an extensive overlap in the
intelligence of Whites and Negroes. The concept that White and
Negro races are approximately equally endowed with intelligence
remains a plausible hypothesis for which there is faulty evidence.
The concept that the average Negro is significantly less intelligent
than the average \Vhite is also a plausible hypothesis for which
there is faulty but, in my opinion, somewhat stronger evidence 5."
(/) Dr. S. Biesheuvel, Director of the National Institute for Personnel
Research, S.A. Council for Sdentific and Industrial Research, says:
"The only scientifically valid standpoint, which does not outrun
the known facts, and which neither prejudices nor prejudges future
findings, we hold to be the following: That observed African abîlities
are different from, in some respect superior, in others inferior to
those of Western man; that environmental, more particularly
cultural circumstances have greatly contributed to bring about these
differences, which are sometimes artifacts of the method of measure
ment, sometimes the result of social conditioning; that it is not
known at present from what genetic origins the manifest mental
attributes of Africans have developed, nor whether this development
would have equalled that of the average European if environmental
circumstances had been comparable; that a new orientation in
research, and the utilization of different experimental and control
techniques will be necessary in order to provide conclusive answers 6.''
9. Comments on vie:ws quoted by Applicants.
In the light of the above exposition of views held by scientists on the
question of innate differences between races, it is not necessary to deal
with the varions views quoted hy Applicants. It will have been observed
that most of the quotations in the said Annex reflect views which are
directly or indirectly disputed or queried by other scientists, and, further
more, that some scientists believe that science is not in a position to give
a definite answer to the question in issue. In the circumstances Respond-
1 Leiris, M.,Race and Culture (1951), p.16. Referred to in IV, Annex 12, p. 601
(para. (x).)
2 Unesco: The Race Concepi (1951), p. 53.
3 Vide para. 6 (d), supra.
• Ingle. D. J....Comments on the Teachings of Carleton Putnam", Mankind
Quarterly, Vol. IV, No. I{1963), p. 28.
5 Ibid.,p. 29.
6 Biesheuvel, S., ''The Study of Mrican Ability", A/rican Studies, Vol. Il, No. 2
(June HJ52}, p. 55. REJOINDER OF SOUTH AFRICA
en t merely points to the following in regard to the passages quoted by
Applicants:
(a) The passage quoted by Applicants from a lecture by Professor
Tobias 1 does not deal with the question whether there are innate
differences between races. It is, however, relevant to the view that
some races should not be regarded as superior, or inferior, to others.
Respondent has already made it clear that its policy of separate
development is not based on any such concept of superiority or
inferiority, so that nothing more nced really be said in regard to
the quotation from Professor Tobias.
Respondent feels constrained, however, to deny Professor Tobias'
allegation that its policy, whilst purportedly based on "cultural
differences", is, in fact, based on the various "assumptions" men
tioned by him 1• It is specifically denied that Respondent's policy
makes any of the "assumptions" about race which are referred to
in the passage quoted. Asto Professor Tobias' reference to the evi
dence provided by science, Respondent refers to the various views
quoted above.
(b) Although perhaps not of any real importance, it is pointed out
that some of Applicants' quotations are hardly relevant to the
question whether science knows of innate differences between races.
The quotation from M. Leiris 2 dcals with the age and alleged origin
of "[r]ace prejudice" 3, and not with any scientific views on the
question in issue. Equally irrelevant are views as to "prejudices
and myths" wbich are alleged ta be a means of finding "a scape
goat" 4, or as tu alleged exploitation, colonization and slavery 5,
and Respondent says that it is not called upon to reply thereto.
D. Conclusion
10. It is clear, in Respondent's submission, that it cannot be suggested,
as Applicants appear to do, that there is virtnal unanimity of opinion
amongst scientists that there are no innate racial differences. On the
contrary, it is clear that there are serions differences among scientists on
the question; that man y scientists believe that there are such differences
and that, inter alia, socio-cultural diffcrcnces between racial and ethnie
groups may, at least in part, be the consequence of differences in genetic
potential. Be this as it may. As already stated, Respondent's policy of
separate development does not rest on any assumption of such innate
differences, but merely on the existence of de facto differences, however
caused, between peoples, which stand in the way of peaceful assimilation
between them-a distinction which, it is submitted, is amply supported
by what is stated herein before.
1 IV, p. 306.
2 Ibid.,Annex r2, p.6o1 (para. (x)).
3 In regard to the alleged age and origin of race prejudicit may be pointed out
that other authorities on whom Applicants rely differ from Leiris. They say that
"[t]he idea of biological superioritybased on race appears in the Old Testament.
Here it is quite clear that Jehovah made bis covenant with Abraham and 'with bis
seed'. that is, with those descended biologically frorn Abraham. In the New Testa
ment there are vivid descriptions of the confüct between this view and the radical.
even revolutionary doctrine of universal brotherhood of man": Dunn, L. C. and
Dobzhansky, Th., Heredily, Race and Sociely (1959), p. JOB.
• IV, Annex 12,p. 600 (para. (iv)).
5 Ibid.,p. 601 (para. (ix)).Vide also reference to Lipschutz in footnote 5. CHAPTER X
WEIGHT OF SCIENTIFIC AUTBORITY:
RESPONDENT'S ALLEGED CONTENTION
OF INEVITABLE FRUSTRATION
A. General
I. In this Chapter Respondent deals with Applicants' treatment of
what theydescribe as "Respondent's Contention of Inevitable 'Frustat
ion' (sic) if AU Inhabitants of the Territory are accorded Equal Oppor
tunity" .
In the Counter-l\[emorial Respondent indicated how certain frustra
tions could arise for Natives in the White economy 2• It was stated, inter
alia, that such frustrations arose from circumstances which existed as
facts, "independently of any governmental policy, legislation or adminis
3
trative practices" ,and from considerations which manifested themselves,
"to a greater or lesser extent, in mixed or plural communities through
out the world" 4.Respondent indicated, also, that it was fully devoted to
the ideal of "eradicating, avoiding or reducing to a minimum ail undesi
rable aspects and manifestations of such group reactions, such as unfair
5
discrimination, domination of one group by another, and the like" ,and
that it believed that the interests of all groups could best be served, and
that peaceful co-existence between them could best be secured, by a
policy which provided for their separate development, "the goal aimed at
being a situation where the Bantu groups will have self-government and,
eventually, full independence in their homelands, and where economic
relations between these homelands and the White areas will be such as to
amount to a position of economic inter-dependence" 6• Respondent
stated, also, that the application of its policy was passing through a
stage of transition which it was sought to complete "with a minimum
of group friction and the negative consequences that could result there
from" 7.the transition being from "White guardianship and leadership in
every sphere of a partially integrated economy to eguality of opportunity
for members of the non-White groups in the form of leadership in largely
separated, though mutually inter-dependent, economies of their own
groups" 7•Respondent stated, furthermore, tha.t in its view there was no
alternative policy which could achieve a just and fair solution in the
Territory 8•
2. Respondent made it clear, in other words, that whilst the existence
1 IV,pp. 306-307.
2 Ill, pp. 55-56, 65-67 and 529-531.
3 Ibid,, p. 528 (para. 20 (!)).
• Ibid., and vide Chap. VIII; supra.
5Ibid., p. 529 (para. 20 (g)).
6 Ibid., p. 528 (para.20 (b)}.
1 Ibid .• p. 529 (para. 20 (h)}.
• Ibid. (para.20 (g)) and vide also Il, pp. 472-473 (paras.25-28). REJOINDER OF SOUTH AFRlCA 421
of separate groups, and of tendencies on their own part towards differen
tiation inter se, admittedly had certain negative consequences of the kind
mentioned, the overriding consideration was not merely how to avoid
those particular consequences, but how to solve the totality of problems
existing in a multi-group and multi-cultural country to the best advantage
of all the groups and all their members. And in this connection, as has
been stated before, Respondent is convinced that, whatever the negative
aspects of its policy of separate development may be at the present time,
they are heavily outweighed by the detrimental consequences which must
inevitably flow from any policy which has as its aim the intcgration of
the various population groups of the Territory. Such attempted integra
tion will without doubt evoke serions and violent rcsistance, which cannot
fail to have far more disadvantageous results for ail the population groups
and their members than are likely to beexpericnced by any of them under
the application of Respondent's policy, even in its present stage of cvo
lution. The goal aimed at, as was stated in the Counter-Memorial, is to
eradicate, avoid or reducc to a minimum "all undesirable aspects and
manifestations of such group reactions" 1, and to establish a situation
where the Native groups will have "self-government and, eventually, full
independence in their homelands, and where economic relations between
these homelands and the White areas will be such as to amount to a po
1
sition of economic inter-dependence" .
It is clear, in Respondent's submission, that the achievement of this
goal must, as a mat ter of logic, not only remove, or minimize, frustrations
of the kind referred to in the Counter-Memorial 1,but also frustrations
of the kind mentioned by some of the authorities cited by Applicants
2
in the Reply , which, a.<:Respondent will indicate hereafter 3, are con
sidered by social scientists to arise for membcrs of minority " groups who
aspire to be assimilated into the dominant group, but are refused admis
sion to the ranks of that group.
3. ln the Reply Applicants refer to passages in the Counter-i\iemorial
in which Respondent dealt with certain frustrations expericnced by
Natives in the economic field 5. They say the foilowing in this regard:
"On the basis of such assumptions and generalizations, Respond
ent accordingly concludes that efforts on its part to seek guarantees
of equality of access of al\ individuals to employment, equal educa
tional opportunities, equal residence rights and the like, would bring
about refusai of white persans to continue to operate the economy,
with the result that Respondent wou!d be compelled to reinstate
differential opportunities at a later stage and this, in turn would
have the consequence of creating a sense of 'frustration' and unhap
piness among 'non-white groups' greater than they feel under the
present system, under which they are 'shcltered' from the unattain-
1 Vide para. r,supra.
i IV, p. 307.
3 Vide para. 8,infra.
• The term "minority" is used in this context not only in the ordinary quantita
tive sense, but also in a qualitatisense, as app!ying to a group-no matter what its
size-which occupies a lower status,or is at a lower level of development,than the
dominant group.
3 IV, pp. 303-306.422 SOUTH WEST AFRIC.-\
able. Such contentions are repeated throughout the Counter
Memorial 1."
It is clear from the Rcply that when Applicants speak of "equality of
access of all individuals to employment, equal educational opportunities,
equal residcnce rights and the Iike", thcy rcfer to a situation where no
distinctions at all are to be made between the varions population groups,
and where the samc treatrnent must be afforcled to ail individuals in
the Territory. This bcing so, their allegation that an absence of differen
tiation in ail fields will bring about, in Respondent's view, a "refusal of
white persons to continue to operate the economy", is clearly far too
narrow a statement of Respondent's views as to what the results will be
of a policy which does not differentiate bctween the varions population
groups. \Vithout going into any detail, and to mention only two examples,
Respondent points out that Applicants make no rcference to what are,
in Respondent's view, the predictable consequences of a policy of non
differentiation in the political 2 and educational fields 3.
Furthermore, the description, in the above-quoted passage, of the
manner in which a "sense of 'frustration' and unhappiness among 'non
white groups' greater than they feel under the present system" will
allegedly arise, is Applicants' own, and is not derived from anything
said in the Counter-~lemorial. Respondent did not deal with the situation
which might arise if it should first do away with diffcrentiation between
the groups and shou.ld then seek, at a later stage, to rc-introduce it:
such a hypothesis was not raised at all in the Counter-Memorial. \Vhat
Respondent dealt with was, more particularly, the frustration that could
arise, independently of any government policy or legislation, for a
Native who qualifies for a profession, or other form of higher occupation,
in which he will have to compete with Europ(:ans in the White society
especially ifhis livelihood should depend on Enropean patronage, or on
the services of European employees, or on bcing employed in a position
of authority over Europeans 1.And it was in relation to this problem,
inter aJia, that Respondent indicated that, in its view, the solution was
to be sought on the basis of separate development 4•
4. Applicants also say in the Reply that the-
"... basic fallacy of Respondent's contention, captioned above [viz.,
'Respondent's Contention of lnevitable "Frustation" (sic) if AU
lnhabitants of the Territory are accorded Equal Opportunity'}, con
sists, in the scientifically demonstrable fact that the greatest 'frus
stratîon' is caused by denial of equal opportunity inherent in the
policy of apartheid itself 5". .
It will be evident from thè Counter-Memorial, and more particularly
from the passages referred to by Applicants themselves 6, t~at Respon
dent did not advance any contention in the form in which it lSframed by
Applicants. Respondent admitted that there were certain potential
7
frustrations for Natives in the economic field, as set out above ,but it
t IV, p. 303.
2 Il, pp. 472-473.
3 III,p. 382.
~ Vide Ill, pp. 527-531, especially p. 528 {para. 2(e)) and p. 529 (para. 20 (h)).
, IV,p. 3o6.
6 Ibid .• pp303-307.
7 Vide paras. 1 and 3, supra. REJOINDER OF SOUTH AFRICA
submitted, at the same time, that its policy of separate development
aimed at removing, or minimizing, such unsatisfactory aspects as there
were at prcsent by creating self-governing and, ultimately, independent
hoinclands for the various population groups. Respondent further made
it clcar that, in its view, a policy of attempted integration of the various
population groups would crcate much more serious disadvantages for
all the groups and their members, in all spheres of their lives than were
experienccd at present 1•
Applicants' allegation that "the greatest 'frustration' is caused by
denial of equal opportunity inherent in the policy of apartheid itself" is
not developed by Applicants in any way. Ail they do is to quote five
passages-four from works of, presurnably, social scientists 2, and one
from the decision in the case of Brown v. Board of Education -without 3
any comment or argument. Respondcnt now deals with these views.
B. Views Quoted by Applicants 4
5. As has been pointed out above 5, Applicants are conccrned with
showing that "frustration" is caused by the "denial of cqual opportunity
inherent in the policy of apartheid". Applicants have never alleged that
"apartheid" denies opportunities to the Europeans of the Territory, so
that it must be presumed that they refer to "frustration" on the part of
Nativcs-which was also the context in which Respondent dealt with the
question of frustration in the Countcr-MemoriaL
6. Applicants do not explicitly indicate the purposc for which they
seek to rcly on the first two quotations, viz., from Raab and Lipset 4 and
from I. D. MacCrone 6•The theme in both cases is that the \Vhitc child
in the first instance in the Unitied States, and in the second in South
Africa-learns from childhood to look upon a black persan as an "inferior' ·.
This is in itself a highly tendentious proposition. But the important aspect
for present purposes is that the charge is in ncither instance laid at the
door of government policy as such. In the first instance the ''pattern of
community practices" or the "social situations" are held to blame. In
the second instance "[the] present economic, political and social struc
ture" is said to create the tendency. If Applicants' suggestion is that
social attitudes and reactions on a question of this nature ought to be
changed by governmental action, Respondent refers to its discussion of
that subject in the ncxt Chapter 7• If the suggestion is that the whole
political structure in South Africa and in South West Africa is to be
changed to one of attempted integration, Respondent contcnds that it
has demonstrated overwhelmingly why, in its view, the consequences
of such a step would be disastrous for all the peoples for whom Respon
dent is responsible, or at least the prcponderant number of their members.
t Vide paras. 1 and 3, supra.
i IV, p. 277 (para. b.3).
' Brown v.Board of Education of Topeka, 347 U.S. 483, in United States Suprem1,
Court Reports, Lawyers' Edition, Book 98 (1954), pp. 880 fI. Vide IV, p. 307.
footnote 5.
• IV, pp. 306-307.
' Para. 4, supra.
~ IV, p. 307.
1 Vide Chap. XI, infra. SOUTH WEST AFRICA
7. The third passage cited by Applicants is from a book by Professor
Robert l\Iaclver, of Columbia University. It reads as follows:
"Under ail conditions the discrimination of group against group is
detrimental to the well-bcing of the community. lbose who are dis
criminated against are balked in their social impulses, are prevented
from developing their capacities, become warped or frustrated,
secretly or openly nurse a spirit of animosity against the dominant
group 1."
Respondent has never been in favour of a situation where there is
"discrimination of group against group". On the contrary, as has been
shown in the Counter-Memorial , Respondent's policy aims at the
establishment of a situation where there will be no such discrimination.
The question is, however, how group discriminations can best be removed,
or minimized. In Respondent's submission the solution must depend on
the circumstances which prevail in a given territory. Professor i\faclver
speaks in this regard of the "well-being of the community" (italics added),
thereby apparently contemplating a case where groups in fact form one
wider community, or where the policy is to treat them as such. He indeed
advocates the development of a "sense of community" 3,in the reassertion
of the "common values of the embracing culture" 3.and in the establish
ment of a "multi-group society" 3•Whether such a solution could have
reasonable prospects of success, must clearly depend on ail relevant
circumstances in the territory concerned. As far as South West Africa is
concerned, Respondent is convinced that the remedy does not lie in an
attempt to create one, single, multi-group society.
8. The next passage relied on by Applicants is from a book by Profes-
sor Kenneth B. Clark. of the United States, and it reads as follows:
"... the evidence from social-science res['.arch, from general obser
vations, from clinical material, and from theoretical analyses con
sistently indicates that the personality pattern of minority-group
individuals is influenced by the fact of their minority status 4".
It may be accepted that the "personality pattern of minority-group
individuals is influenced by the fact of thcir minority status"'. The passage
refers to the position of Negroes, and, more particularly, of Negro
children, in the United States. Profes.<;orClark indicates that Negro
children in the United States realize from a tender age that they belong
to a minority group which has a lower social and economic status than
the White dominant group, and he statcs that the Negro group is "sub
ject to a more general condition of social isolation, rejection and frus
tration" 5 than other minority groups in America. The result is that
Negroes, and Negro children, develop feelings of inferiority, or even psy
chological disorders of a serions nature. Professor Clark says in that
regard:
"As the Negro observes the society in which be lives, be associates
whiteness with superior advantage, achievement, progressand power,
1 Maclver, R. 1\-r.,The Web of Governmenl {1947),p.428,
2 Il,pp. 466-475.
3 Maclver, op. cit., p429.
• IV, p.307. The passage quoted is from Clark, K. B.. P,,ejudice and Your Ckild
(1555), p. 47.
Clark, op.ât., p. 52. REJOD<DER OF SOUTH AFRICA
ail of which are essential to successful competition in the American
culture. The degree of whiteness that the individual Negro prefers
may be considered an indication of the intensity of his anxiety and
of his need to compensate for what he considers the deficiencies of
his own skin color 1."
The result, according to Professor Clark, is that Negroes tend to reject
themsclves 2, and to deny their "skin color and racial ancestry" 1.
Professor Clark points out that such self-rejcction, or self-hatred, has
its source in the failure of members of a minority group to be assimilated
into the ranks of the dominant group. He says that such "self-hatred is
not restricted to Negroes" 2, but that-
"[d]isadvantaged white groups have a greater chance of increasing
their economic status and being assimilated into the dominant
culture 2".
In the case of the Negroes, he says,
"... the barriers against such assimilation are more formidable for
the Negro child and are further complicated by the fact that every
one can see what his color is 2''.
The basic problem is, therefore, the Negro's inability to be success
fully assimilated into the ranks of the dominant White group. There is
in their case, says Professor Clark, a "continuous cold war for status" 3•
Professor Clark states that he made certain tests to determine the
"development of racial awareness and racial preferences in Negro
children" •. His findings 5seemed to indicate that northern Negro chil
dren suffered "more personality damage from racial prejudice and dis
crimination than southem Negro children" 6 who attended segregated
schools. Professor Clark argues, however, that the "apparent emotional
stability of the southern Negro child may be indicative only of the fact
that through rigid racial segregation and isolation he has accepted as nor
mal the fact of his inferior social status" 6•It may be pointed out in this
regard, however, that certain other social scientists do not accept Profes
sor Clark's argument in regard to his findings. Thus Professor Gregor holds
the view that Negro children who attend Negro schools develop a more
positive conception of themselves than do Negro children who attend
biracial schools where they are often rejected by White children. In re
:gard to psychological impairments suffered by Negro school children, he
.says, inter alia:
"ln considering whatever evidence is available, the first appeal
can be made to evidence that minority children of high social visibil
ity enjoy positive advantages at critical periods of personality for
mation in a racially insulated environment. K. B. Clark's studies
of Negro pre-school children indicate that in projective tests Negro
children in segregated schools tended to prefer their own race, i.e.,
80% of southern Negro children showed a preference for brown skin
1 Clark, op. cit. p49.
2 Ibid.,p. 50.
3 Ibid.,p. 55.
• Ibid.,p. 19.
5 Ibid.,pp. 44-45 .
.;; Ibidp. 45. SOUTH WEST AFRICA
color, while northern Negro children in integrated situations showed
a marked preference for white skin color, i.e., only 20% of the north
ern Negro children indicated brown as their skin preference. Eleven
and twelve year old Negro children attending a non-segregated
school were more likely to prefer light skin color than children of
the same age attending an all-Negro school 1."
Professor Clark's explanation of his iindings, as quoted above, has
also been rejected by C. P. Armstrong, S. S. Crutchfield, W. E. Hoy and
R. E. Kuttner. They say in regard to the tests perforrned by Professor
Clark:
"Professor Clark thus demonstrated that the segregated students
were less confused, had better self-images, and manifested a smaller
amount of self-hatred. These are precisely the items which Clark
2
felt were indicators of segregation damage ."
They call his explanation a "manipulation", and say that-
"[wJith this manipulation, Clark bestows on the Negro child (as
young as three years) the ability to ide2tify the color 'brown' with
position on the socio-economic scale ".
It appears from the aforegoing that the frustrations suHered by the
Negro in the United States is, to a very large extent, the result of the fact
that he cannot successfully be assimilated into the ranks of the dominant
·group, and that his physical appearance, viz., the colour of his skin, plays
an important part in this failure. It appears, furthermore, that there is
evidence which suggests that Negro children who attend ail-Negro schools
show more emotional stability and have greater self-esteem than Negro
children who attend school in integrated situations where they do not
enjoy full acceptance by members of the dominant group. Ail this tends
to support Respondent's view that major frustration and personality
impairment occur precisely in circumstances of attempted but unaccom
plished integration with a more developed group, and that the root cause
thereof disappears when the aim is set not at such integration, but at
advancement of the Jess developed group jn üs own right, on the basis
of respect for its distinctive identity and all positive values attached
thereto.
9. Applicants' final quotation is from the judgment in the case of
Brown v. Board of Education. It reads as follows: .
"To separate [children in grade and high schools] from others of
similar age and qualifications solely because of their race generates
a feeling of inferiority as to their status in the community that may
affect their hearts and minds in a way unlikely ever to be undone 3.''
It is somewhat strange, in Respondent's submission, to have the Court's
decision presented as that of a "scientific authority" 4,particularly when
no indication is given of the nature of the scientific evidcnce on which
the Court relied, or of similar evidence (if any) which was also put before
the Court, but rejected by it.
1 Gregor, A. J., "The Law, Social Science, and School Segregation: An Assess
ment", Western Reserve Law Review, Vol. 14, No. 4 (1963), p. 627.
2 Lega1 Te$timony and Scientific Evidence: A Contrast, The Mankind Quarterly,
Vol. IV, No. 2 (1963), p. 108. .
3 IV, p.307.
4 Ibid., p.302. REJOI~DER OF SOUTH AFRICA 427
Respondent deals with the case of Brown v. Board of Education in some
detail in the section of the Rejoinder dealing with education 1and refers
the honourable Court to what is stated there. At this stage Respondent
points to the following:
(a) The Court's decision must obviously be viewed in the context in
which it was given, viz., that of present-day American society in
which Negroes are, on the whole, one with their White fellow
citizens in mattcrs of language and culture, and where racial origin
is the only significant difference between them 2• The Court had
regard to the question of segregation on grounds of race only, and
not also to other factors-such as language or culture-as possibly
being of significance in the matter of segregation. It does not follow,
therefore, that the Court's decision will be valid in situations where
different circumstances apply, e.g., in a heterogeneous country like
South Africa or South West Africa where there are population
groups which are desirous of maintaining their separn.te identities,
and where the aim is to develop self-respecting communities of
which the members will be free from such tensions as arise when
individuals seek admission to an out-group, only to have their
attempt rejected.
(b) lt would appear that social scientists in the United States have
seriously questionecl the evidence which was put before the Court
by the successful Appellants, and on which the Court probably
relied. So, e.g., it has been said that the evidence of Professor
Clark, who is referred to above 3, misled the Court 4, and that the
evidence on which the Court presumably relied was inconclusive 5•
lndced, it has been argued that whilst scientific knowledge on the
subject in issue is incornplete, "whatever evidence is available tends
to support racial separation in the schools at least throughout
childhood and adolescence'' 6•
It is, naturally, not Respondent's concern to take siclesin this dispute
regarding the specific situation in the United States, but merely to point
out that it does exist, even although circumstances in that country would
from the outside appear to be so much more favourable for integration
than in Southern Africa. This matter is further dealt with in the following
Chapter 7•
C. Other Views
ro. Varions social scientists in the United States have referred to the
fact that Negroes suffer personality impairments when they cannot
successfully identify themselves with their own group, and are also not
1 Vide sec. G, Chap. III, para. 9,infra.
2 Vide Chap. VIII, para. 7, supra.
3 Vide para. 8, supra.
• van den Haag, E., "Social Science Testimony in the Desegregation Cases-A
Reply to Professor Clark", Villanova Law Review, Vol. 6 (1960), p. 69.
5 Ross and van den Haag, "The Fabric of Society" (1957),as quoted by Gregor,
A. J.,"The Law, Social Science, and School Segregation: An Assessment", Weslern
Reserve Law Review, Vol. 14, No. 4 (1963), p. 625.
6 Gregor, A. J.,"The Law, Social Science, and School Segregation: An Assess
ment", Western Reserve Law Review, Vol. 14, No. 4 (1963),p. 626.
1 Vide Chap. XI, infra. SOUTH WEST AFRICA
capable of being successfully assimilated into the ranks of the out-group
they wish to enter. Reference bas already heen made to Professor Clark's
1
views in tlùs regard .It has been shown, inter alia, that the Negro's un
attainable wish to be Wlùte becomes the source of serious inner con:flict.
ProfessorGunnar Myrdal saidof this conflict that it produced "a person
ality problem for practically every single Negro. And few Negroes ac
2
complish an entirely successful adjustment" • Professor Gregor argues
in this connection that an individual cannot attain a coherent and viable
self-concept, which is necessary for healthy personality development,
without a sense of group-belonging, and that an individual who identifies
himself with a group which commands his respect and allegiance is able
to attain psychological maturity with far less hazard than one who lacks
such a sense of group identity. He says: "The development of a coherent
self-system is a function of group identity'' 3, and also refers to the fol
lowing view expressed by Hill:
"Hill's studies of Negroes educated and raised in an all-Negro
community indicate that such a Negro tends to have a 'much higher
regard for Negroes'; he tends to have a 'higher opinion of Negroes',
and is 'more favorable in [his] expression toward [his] race' +."
D. Conclusion
II. Respondent points out in conclusion that various leaders of African
thought have in recent years expressed themselves about the detrimental
and demoralizing effect which an unsuccessful attempt at adopting White
ways and notions-including colour notions-bas on Africans, and that
they have emphasized that a healthy group sentiment serves to establish
self-respect and a sound self-image on the part of the individual. Professer
W. E. Abraham, Associate Professor of Philosophy at the University of
Ghana, comments on the "tension" and "near-neurosis" affecting the
African who bas managed to achieve only a superficial imitation of
European culture, and whom Professor Abraham calls a "truly displaced
man". Rewrites:
"The man of two worlds, the man who has been exposed in no
consistent or radical fashion to a milieu which is different from that
to which he belongs, though the latter continues to surround him,
is a truly displaced man. His mastery of the new culture isnot compre
hensive enough, it is selfconscious, and, such as it is, it is generally
in conflict with mores into which he was bom, and which hc bas
never truly uprooted from his system. His is cultural ambiguity, not
cultural ambivalence, for it is characteristically accompanied by
misgivings. These misgivings, this tension, this near-neurosis, can be
most tragic. The man of two worlds, uncomfortably striding both, is
the real displaced man 5."
1 Vide para. 8, supra.
2 Myrdal, G., An American Dilemma: The Negro Problem and Modern De
mocracy ,(1944). p. 6gg.
3 Gregor, A. J., "The Dynamics of Prejudice", Man/iinà Quarlerly, Vot III,
No. 2 (Oct.fDec. 1962), p. 82.Vide also the view expressed by Hill, para. 10,supm.
4
Viiù Gregor, A. J.,"The Law, Social Science and School Segregation: An
Assessment", Westeni Reserve Law Review, Vol. 14, No. 4 (1963), pp. 627-628.
5 Abraham, W. E., The Mind of Africa (1962), p.100. REJOINDER OF SOUTH AFRICA
Conscious attempts arc being made in these new African States to
impress on the people that they differ from the peoples of other continents,
and the realization of such differences is stressed as being, and is seen as,
something of value for African self-respect. Alionne Diop, Secretary
General of the SociétéA/ricaine de Culture and Director and Editor of
the journal PrésenceAfricaine, has stated in this regard that the'' African
personality" would corne into its own-
"... to the degree that the African writers and artists and the African
people themselves become aware of what characterizes them in the
present world and become aware at the same time of their ancient
patrimony and the possibilities of their future-to the degree that
1
they affirm themselves different and original ... '.
One of the factors which is emphasized as being something unique,
almost as a standard around which ail can be united, is the African's
distinctive colour. Professor Biesheuvel has written in this regard:
"An interesting development in the growth of cultural self
consciousness is the popularity which the concept of an African
personality has recently attained in many parts of Africa. At more
than one conference of black African states, the importance of
vindicating the worth of Africans by establishing the uniqueness and
value of their own personality has been stressed ...
There was a time when the suggestion of any difference was
vehemently repudiated. for fcar that it would lead to discrimination,
especially in the educational and social fields ...
It is a sign of maturity and increased self-confidence that the
possibility of difference is not only conceded, but that it is seen as
something of positive value for African self-respect 2."
12. Such views clearly indicate, in Respondent's submission, that the
members of self-respecting African communities, such as are envisaged
in Respondent's policy of separate development, have every chance of
being free of the personality tensions which seem to mark-as was
indicated above-the Negro's unsuccessful attempt at assimilation into
a White dominant community.
1 American Society of African Culture, Pan-Africanism Reconsidered (1962:),
p. 344.
2 Biesheuvel, S., "Race, Culture and Personality"South African lnslilute of Rau
Relations (r959),pp.4-5. CHAPTER XI
WEIGHTOF SCIENTIFICAUTHORITY:
GOVERNMENTPOLICY AND GROUPREACTIONS
A. Introduction
I. The third respect in which Applicants set out to establish that
Respondent's policies, or premises underlying them, are "contrary to ...
the overwhelming weight of authority in the political and social
sciences" 1, is dealt with by thern under the heading "Respondent's Coii
tention that as a 'Realistic Government' it must s,epport e:âsting 'Group
2
Reactions' " • Their argument in this regard may be briefly summarized
asfollows:
(r) Respondent's policy loses sight of the tact that attitudes of prejudice,
discrimination and fear can be modified, particularly through
govemmental action •
(2) Authorities agree that the enforcement of legislation can be a decisive
means of overcoming discriminatory behaviour and reducing con
fücts between groups -1and that "Iegislation is educative" 5•
(3) Modern social science rejects Respondent's "assumption" that
attempts to anticipate or modify public opinion are "unrealistic"
or even dangerous 4•
(4) By "refusing to act against racial discrimination", and thus reducing
discriminatory behaviour and the attitudes of prejudice lying behind
it, Respondent "bas encouraged and abetted" racial discrimination 5,
and has thus "hindered the well-being and thwarted the social
progress of the inhabitants of the Territory" 6.
2. Most of the authorities quoted by Applicants in the course of this
part of their argument are American authors whose views and comments
are based on the racial situation which cxists in the United States of
America. Respondent did not in its Counter-Memorial deal with the
racial situation existing in the United States, nor with the attempts of
the Government of that country to solvc its own racial problems;
Respondent refrained from doing so, inter alia, because in its view the
factual situation in the United States with regard to the composition of
the different racial groups there differs very materially from the situation
existing in South West Africa. However, by reason of the form of Appli
cants' argument. Respondent is now compelled to refer to the racial
problems of the United States in three respects, as explained in the next
paragraph.
3. In the first place, Applicants' argument assumes that the views
expressed by the authorities on whom they rely, and who are dealing
2 IV, p. 305.
Ibid.,pp. 307-3n.
1 Ibid.,p.308.
• Ibid., p. 309.
5 Ibid.,p. JII,
6 Ibid.,p. 312. REJOINDER OF SOUTH AFRICA 43~
with the situation in the United States, apply automatically and with
cqual force to the situation in South West Africa, as if the situation in the
two countries were the same. It is necessary for Respondent to demon
strate to the Court that Applicants' assumption is incorrect, that the
racial problems facing the Government of the United States are greatly
different from the problems with which Respondent has been and is
confronted in South West Africa 1,and that accordingly the views of the
authorities relied upon by Applicants cannot be regarded as being in any
way authoritative with regard to the prcsent case 2•
Secondly, Applicants' argument suggests by implication that in the
United States the enforcement of anti-discrimination legislation has had
only beneficial and no detrimental results. It is necessary for Respondent
in this respect to show that that is in fact not so, that the measure of
success achieved by the Federal Govemment's policy of enforcing de
segregation in the United States has beenïimited 3, and that there have
on the other hand been highly detrimental effccts which must be brought
into account in evaluating that policy 4• ·
Thirdly, Applicants' argument creates the impression that all authori
tics. or at least the overwhelming weight of authority, support the views
advanced by Applicants. Respondent will show that the impression
conveyed by Applicants is a false one. Sorne of the statements quoted by
Applicants require qualification by virtue oî what the quoted authors
themselves have said in other parts of their works 5•More importantly,
thcrc is a substantial body of opinion which is opposed to the views
quoted by Applicants, particularly with refcrence to the situation in the
United States 6.
4- Before proceeding to deal with the matters referrcd to in the pre
ceding paragraph, Respondent states emphatically that it does not wish
to, nor does it in fact, criticize the Government of the United States for
the manner in which it has attemptecl to solve the racial problems cxisting
in that country-problems which are peculiar to that country and on
which Respondent would pref~r not to pass any comment. Respondent
must in particular not be understood as aclvancing any submissions on
the question whether the policy of enforced desegregation which is
applied in the United States, is or is not the best policy to be adopted
in the circumstances existing in tha t country, either as regards its general
approach or as regards specific aspects thereof. The problems that exist
in that regard are, of course, not matters for adjudication in these pro
ceedings. But what is relevant in the prescnt case is the impression sought
to be created by Applicants that govemmcntal action directed at elimina
ting racial discrimination has everything to recommend it and nothing
against it, an impression which purports to be based mainly on the views
of authorities dealing with the situation in the United States, It is this
impression which Respondent is constrained to refute, and it is sol_ely
with the object of doing so that Respondent gives some consideration
to the situation in the United States.
1As indeed, in the Republic of South Africa itself.
2 Vide paras. 5-10,infra.
l Vide paras.12-22. infra.
Vide paras. 23-32. infra.
5 Vide para. 34,infra.
6 Vide paras. 36-46. infra.432 SOUTH WEST AFRICA
B. The Composition and Nature of Population Groupsin the United States
5. The largest minority group in the United States are the Negroes 1:
they constitute over 95 percent. of the non-White residents of the United
2 3
States . ln Ig6I the United.States Commission on Civil Rights reported
that-
"Mexican-Americans, Puerto Ricans, Indians, and other minorities
to some extent still suffer inequalities and deprivation. But Negroes
are our largest minority group, and their rights are denied more often
in more respects and in more places than are those of any other
4
group ."
Yet Negroes constitute only about ro.5 percent. of the total United
States population 5; in other words, \Vhites outnumber Negroes by
roughly 9 to I 6. •
6. In the United States, the Negro minority group has been living
in that country for centuries; they profess the same religions beliefs,
speak the same language and have the same values as the majority
group; and they share moral and cultural mores with the White com
munity. It would seem, therefore, that as far as the Negro minority is
concerned, the racial problem in the United States may be truthfully
described as being pre-eminently a problem of colour. Thus, the United
States Commission on Civil Rights refers to the position of the Negro in
American society as follows :
"Like earlier immigrants from overseas, many of today's largely
nativebom minorities have been forced into urban siums, restricted
to the poorest schools, and employed in the lowest paid occu
pations ... As with earlier groups, these deprivations have led to
discrimination, which in turn reinforces the deprivations.
White many of these problems are similar to those of other
minorities, there are important differences. The Negro is no stranger
to this country: be is an American by birth and by long ancestry.
But heis set apart by the colorof his skin . .. 1" (Italics added.)
Professor E. F. Frazier has said:
"Although the folk Negro bas become transformed through
education and greater participation in American culture, the /act of
1 I96z U.S.C.C.R.R., Book 5, p. 135: "The 1900 census reported on five racial
minorities.In order of population size, they were as follows: Negroes, 18,871,831;
America~ Indians. 523,591; Japanese, 464,332; Chinese. 237,292; and Filipinos,
172,310.
United States Department of Labor, The Economie Situation of Neg.,oes in the
United States (Revised 1962), p. i.
3 I96I U.S.C.C.R.R., Books 1-5.
< Ibid., Book 1,p. 2.
~ 18,871,831 out of 179,323,175: ibid., p. 21 and United States Department of
Labor, The Economie Situation of Negroes in the United States (Revised 1962).
p. 1.The figures are taken from the 196o U.S. Ceusus.
~ The 1960 Census figures are: Whites. 88.6 percent.; Negroes, 10.5 percent.;
"Other", 0.9 percent. United Nations Demographic Yea,-book I963, Special Topic:
Populalion Census Statistics Il, Fifteenth Issue (1964}, p. 313.
1 1961 U.S.C.C.R.R., Book 1, pp. 8-g. REJOINDER OF SOUTH AFRICA 433
his color has continued to retard his integration into American
life ... 1" (Italics added.)
7. The fact that it is the colour of his skin, and not any dissimilarity
in cultural, religious or social "background, which is the basic feature
differentiating the Negro from the White majority group, is pointedly
illustrated by the way in which the Civil Rights Commission in its 1961
report dealt with another minority group in the United States, viz.,
the American Jndians. The Commission devoted a separate section of its
report to a survey of denial of civil rights suffered by the American
Indians 2,saying:
"If American Jndians are a minority, they are a minority with
a difference. Of course Indians face problems common to ail mino
rities-jobs, homes and public places are not as accessible to them
as to others. Poverty and deprivation are common. Social accep
tance is not the rule ... Yet to think of the lndian problem solely in
terms of bias, discrimination, or civil rights would be a mistake. For
1mlike most minorities, Indians were and still are to some extent a
people unto themsclves, with a culture, land, government, and habits of
life ail their own 3." (Italics added.)
lt is significant that the distinguishing characteristics of the Indian
group have been recognized by the Federal Government in the field of
its education policy. With regard to Negroes, Federal Government policy
has been directed at complete integration of N'egroes with Whites 4.
With regard to Indians, however, the position if different. The Civil
Rights Commission found that prior to 1934 the federal policy in educa
tion was committed to the acculturation of the American Indian, a
policy that was "not entirely succcssful'' s. Changes in policy were made
in 1934, the effect of which is summarized as follows in the Commission's
1961 report:
"The cohesiveness of tribal Iife was now recognized to be an
important element in a child's education. At the same time, the
backwardness of some tribes was at least recognized as a liability to
be reckoned with. Education, therefore, was to be directly pointed to
the needs of Indians-to help them gain the skills needed to function
in the white man's world without, at the same time, destroying their
own. The boarding school gave way to the dav school. Acculturation
as an end in itself was softened. Children were to be schooled within
their home environment by persons who were to be trained in
Indian ]ore. The use of the native language was no longer forbidden
and the Indian heritage was not looked upon as a scourge 6."
The Commission appears to approve of this policy for the federally
controlled Indian schools, where it is apparently still being applied 7•
1 Frazier,E. F., The Negro in the United States (1957), p. 689.
2 r96i U.S.C.C.R.R., Book 5, Part VITI, pp. n5-160.
3 Ibid., pp.I15-II6.
• Ibid., Book z and vide para. 16, infra.
s Ibid., Book 5, p. 140.
6 r96r U.S.C.C.R.R., Book 5, p. r4r.
1 Ibid., pp. 140-144 and 157.434 SOUTH WEST AFRICA
C. The Compositionand Natureof Population Groupsin South West Africa
8. In 1outh West Africa there are at least nine major population
groups .The size, composition and characteristics of each group have
been described in detail in Respondcnt's Conntcr-Memorial 1, and need
not be repeated here. Suffice it to emphasize, by way of summary, the
vast differcnces between the various groups: they differ inter se in almost
every conceivable physical and socio-cultural charactcristic. With
regard to physical appearance, for instance, there are white people,
yellow people, brown people and black people. But the differcntiating
features of the various gronps do not begin and end with skin colour.
Indeed, cultural differences between the varions groups are probably even
more marked than physical differences. Thus they manifest wide diver
sities of language, religion, moral standards, social and political con
ception, technological sophistication, everyday habits, modes of dress and
2
adornment, and general level of development •The relative sizes of the
different ethnie groups also vary considerably. For instance, the largest
single group (the Ovambo} constitutes about 45.5 per cent. of the total
population 3: Europeans account for about r4 percent. and the Bushmen
are only slightly more than 2 percent. of the total population 3.
9. In South West Africa the problem arising from the existence in the
Tcrritory of a number of different ethnie groups, is not simply a problem
of colour, or even of race. The groups here are set apart from each other
not merely by reason of physical appearances, but more important, by
reason of widely differing cultural systems. Each group is, in itself, a
separatc and distinct nation in embryo. Thus, white it would not be in
apposite to describean American Negro as a black member of the American
nation, it would be quite unrealistic to regard the Bushmen, the Hcrero
and the Whites of South West Africa, for instance, as components of one
nation. Moreover, some of the groups have been living since before the
advent of Respondent's administration in their own areas of the
Terri tory, geographically separated from one another and from the other
inhabitants 4.
D. The Significance of the Differences in the Composition and Nature of
the Population Groups in the United States and in South West Africa
ro. The importance of the differenccs betwecn the situation in the
United States and the situation in South West Africa must be obvions.
The circumstances in the United States arc, on their face, particularly
favourable for the integration of the Negro people with the White major
ity of the population. Not only are the Negroes a relatively small minority,
but they share the socio-cultural values and habits of the substantial
White majority-which is a relatively opulent and educated group, living
in what is possibly the most industrially advanced and educationally en
lightened country in the world. Tt would be bard to imagine a situation
better suited, to all outward appcarances, for the implementation of
legislation rclating to integration.
The situation in South \Vest Africa offcrs strong contrasts in every
1II,pp. 31 Iff.
2 Ibid.,for further deta ils.
3 Ibid.,p. 4or.
4
II, p.312. REJOlNDER OF SOUTH AFRICA 435
material respect. The differences amongst the plurality of groups there
are so numerous and emphatic 1 that they must milita te heavily against
any natural tendency towards assimilation, and therefore also against
prospects of successful attempts at enforcement of assimilation. The
potential for serious social disorder consequent upon such attempts,
seems obvious; and it is materially increased by the fact that there are
gross differences in the demographic strength between groups accustomed
to different standards of life 1, so that some groups would almost in·
evitably fccl threatened by superior numbers.
It is for the above reasons that circumstances in the United States and
in South West Africa, in regard to the desirability and probable con·
sequences of a governmentally cnforced programme ofnon·discrimination,
are in Respondent's submiss10n not truly or fairly comparable.
fo the following paragraphs Respondent proceeds briefly to examine
the factual situation in the United States in connection with the desegre·
gation policy of the Government of that country. In this regard the facts
and figures supplied by Responclent are derived chiefly from the 196r and
1963 reports of the United States Commission on Civil Rights. In those
reports the Commission concerned itself principally with the civil rights
problems of Negroes 2; Respondent's discussion will be confined to the
Negroes' position in American society.
E. Anti-Discrimination Legislation in the United States
II. Anti·discriminatory legislation has existed in the United States
for almost a century. The principle of non·discrimination on the grounds
of race, colour, religion or national origin has been enshrined in the r4th
and 15th amendments to the Constitution ever since 1870 3.The effect of
these amcndments is described by the Commission on Civil Rights in the
following terms:
"The 15th amendment to the Constitution commands that neither
t~e Ferlerai Government nor the States may dcny or abridge the
nght to vote on account of race or color. More hroadly, the 14th
amendment forbids any State or its agents to 'deny to any person
the equal protection of the Jaws·.This principle, applicable also to the
Federal Government, forbids discrimination against any person on
the grounds of race, color, religion, or national origin. Jt does not
reach the conduct of persans acting in a purely private capacity.
Still, aSta te may not enforce private agreements to discrimina te ... 4"
Violation of these provisions could be dealt with under certain sections
of the United States Criminal Code 5•In its 1963 report, the Commission
states:
"Long before this Commission was established in 1957, the
doctrine of equal opportunity had been firmly embedded in the law.
It was eloquently stated in the Declaration of Independence and
reaffirmed in the Bill of Rights and the 13th, 14th, and 15th amend
ments to the Constitution. It has since been implemented in a series
1 Vide paras. 8 and 9, sup~a.
2 I961 U.S.C.C.R.R., Book r, p. 2 and 1963 R.U.S.C.C.R., pp. 1·4·
3 I961 U.S.C.C.R.R., Book r, p. 73.
4 Ibid., p.7.
5 Ibid., p. 74,for further details. 436 SOUTH WEST AFRICA
of judicial decisions which affirm without qualification that racial
segregation in any aspect of public life violates the Constitution 1."
ln addition, over the past two decades numerous legislative, executive
and administrative steps have been taken by the Federal Government
with the object of ending the discrimination against Negroes in various
spheres of society 1.Sorne of these measures will be briefly referred to in
the following paragraphs hereof, under the appropriate particular
headings.
F. The Extent to which Government Policy in the United States lias Failed
to Achieve Success
12. In their argument Applicants have pointed only to the advantages
that may result from the enforcement of anti-discriminatory legislation,
omitting even to mention the difficulties that have been encountered by
the Government of the United States in its attempts to implement such a
policy, and the disadvantages that have resulted therefrom. Applicants
have thus presented a one-sided account of the effects of governmental
attempts to enforce integration.
In correcting the distorted image, Respondcnt is compelleed to hold up
the other side of the picture, the negative side: the extent to which the
aim of the policy still falls short of achievement, and the harmful effects
that have followed in its wake. In doing so, Respondent must not be taken
to suggest the complete converse of what Applicants contend-that
governmental policy in the United States has had no beneficial, and only
detrimental, results. Respondent certainly does not aver that, in the
particular circumstances existing in the United States, no progress of
any significance has been made in regard to desegregation by govern~
mental action. For the sake, however, of a proper evaluation of Appli
cants' contention that a similar policy should be adopted by Rcspondent
in South \Vest Africa, the negative and harmful aspects of the policy as
applied in the United States must necessarily also be brought into account
-in addition to the very important differences between the factual
situations in the two countrics, as discussed above.
13. The United States Commission on Civil Rights noted in its 1961
report that in the two years since its first report there had been "dynamic
changes in civil rights at ail levels of government" 2, but found that
despite this progress "the Nation stiU faces substantial and urgent
3
problems in civil rights" • The major civil rights problems discussed in
the 1961 report were summarized as follows:
"In some roo counties in eight Southern States there is reason to
believe that Negro citizens are preventecl-by outright discrimi
nation or by fear of physical violence or economic reprisal-from
exercising the right to vote.
There are many places throughout the country where, though
citizens may vote freely, thcir votes are seriously diluted by un
equai electoral districting, or malapportionment.
There are many counties in the South where a substantial Negro
t r963 R.U.S.C.C.R., p. r.
i r96r U.S.C.C.R.R., Book r, p.2 and for furtherdetailsvide pp. 2·5·
3 Ibid., p. 5 REJOINDER OF SOUTH AFRICA 437
population not only has no voice in govemment, but suffers extensive
deprivation-legal, economic, educational, and social.
There are still some places in the Nation where the fear of racial
violence clouds the atmosphere ...
Unlawful violence by the police remains in 196r nota regional but
a national shame.
In public education there still are three States-Alabama,
Mississippi, and South Carolina-where notone public schoolor college
conforms with the constitutional requirements enumerated by the
Supreme Court 7 years·ago. In May 1961, 2,062 of the 2,837 biracial
school districts in the 17 Southern and border States remained
totally segregated.
A Federal court decision in r96r brought to the Nation's attention
the fact that unconstitutional inequality- in public education is not
confmed to Southern States. Such inequalities in public educational
systems seem to exist in many cities throughout the Nation.
Unemployment in the recent recession, hitting Negroes more than
twice as hard as others, underlined the fact that they are by and
large confined to the least skilled, worst paid, most insecure occu
pations; that they are most vulnerable to cyclical and structural
unemployment and least prepared to share in, or contribute to, the
economic progress of the Nation.
Although racial segregation in the Armed Forces of the United
States officially ended 6 years ago, it continues in some parts of the
Reserves and the National Guard.
l\Iuch of the housing market remains closed in 196r to millions of
Americans because of their race, their religion, or their ancestry;
and partly in consequence millions are confined to substandard
housing in siums.
In spite of repeated commitments to the principle that benefits
created by the funds of all the people shall be available to all without
regard to race, religion, or national ancestry, the Federal Govern
ment continues in some programs to givc indirect support to dis
criminatory practices in higher education, in training programs, in
employmcnt agencies and opportunities, in public facilities such as
1
libraries, and in housing ."
q. Two years later, as appears from the Commission's 1963 report,
these problems remained substantially unchanged, although some pro
gress has been made. With reference to the legislative, judicial and
administrative measures affirming and implemcnting the doctrine of
equal opportunity, the Commission remarked:
"Yet, as the Commission was to learn from 6 years of study and
investigation in ail sections of the Nation, the civil rights of citizens
-particularly of Negro citizens-conti"nued ta be widely disregarded 2• ''
(Italics added.)
\Vhile reporting "an atmosphere of genuine hopefulness", the Com
mission also found that-
"[t]here is a broad gulf between the abandonment of enforced segre-
1 r96r U.S.C.C.R.R., pp. 5-6.
2 r963 R.U.S.C.C.R., p.1. SOUTH WEST AFRICA
gation and the achievement of a society in which race or color is not
a factor in the hiring or promotion of an employee, in the sale of a
home, or in the educational opportunity offered a child 1''.
In the following paragraphs some more detailed indication is given of
the extent to which the Government's integration policy has in fact not
met with success in the particular fields of voting, education, employment,
housing, justice, and social contact.
15. Voting. The command of non-discrimination contained in the 15th
amendment to the Constitution 2 was reinforced in 1957 by the passage
of a Civil Rights Act, which, inter alia, authorized the Federal Govern
ment to bring civil actions for injunctive relief where discrimination
denied or threatened the right to vote, and which forbade intimidation,
threats, and coercion for the purpose of interfering with the right to vote
in federal elections 3.Two years later the results of the Act seemed dis
appointing 3 •In 1960 a further Civil Rights Act was passed for the pur
pose of giving effect to certain recommendations that had been made by
the Civil Rights Commission in its 1959 report, and which provided, inter
alia, for the appointment of federal voting referees when a pattern or
practice of racial discrimination is found to exist 4.The Commission found
that the United States Department of Justice had acted with vigour to
apply the Civil Rights Acts and that since 1960 it had initiated and sus
tained a determined attack on racial discrimination in the franchise 5;
this resulted in a considerable amount of litigation 6•
Nevertheless, the Commission's reports indicate that there are at least
100 counties in eight southern states where there is reason to believe that
substantial discriminatory disfranchisement of Negroes still exists 7; the
100 counties referred to in the reports contained nearly a third of all
Negroes of voting age in the II states of the former Confederacy 8.
Registration statistics by race in 1960 indicated that in 17 of the zr so
called "black-belt" counties, where Negroes form the majority of the
population, they did not vote at all, or did so only in small numbers.
The reasons for the failure to vote include fear of economic or physical
reprisais, official discrimination, blatant or subtle, and lack of education
and motivation 9•
In 1956, the last year before the passage of the first Civil Rights Act ~o
secure the rights to vote, about 5 percent. of the voting-age Negroes m
the 100 counties referred to above were registered to vote. Seven years.
later the Commission commented:
"Despite the subsequent passage of two civil rights acts, the insti
tution of 36 voting rights suits by the Department of Justice, and
the operation of several private registration drives, Negro registration
in these counties has risen only to 8.3 percent. 10" (Italics added.)
1 I963 R.U.S.C.C.R., p. 4. Vide also para. 24, infra.
z Vide para. 11, supra.
3
I96I U.S.C.C.R.R., Book 1, p. 75.
• Ibid., pp. 76-78.
5 Ibid., p. 136 and r963 R. U.S.C.C.R., p. 13.
6 Vide r96I U.S.C.C.R.R., Book 1,pp. 79-100 and I963 R.U.S.C.C.R., pp. 16-26 ..
7 r96I U.S.C.C.R.R., Book 1, p. 23 and I963 R.U.S.C.C.R., p. 15.
B I963 R.U.S.C.C.R., p. 15.
• I96I U.S.C.C.R.R., Book r, pp. 195-196 and vide also p. 111.
10 I963 R. U.S.C.C.R., pp. 14-15. REJOINDER OF SOUiH AFRICA 439
"An exarnination of the 100 counties wherc denials of voting
rights were indicated in the 1961 Voting Report compels the con
clusion that racial discrimination persists and the policy of the
1
Civil Rights Acts has been frustrated ."
Generally, the Commission came to the conclusion that:
"lts fi.ndings reveal clearly that the promise of the 14th and 15th
amendments to the Constitution remains unfulfüled .
. . . the right to vote is still denied many Americans solely because
2
of their race ."
Two members of the Commission said in a concurring statement that:
"The evil of arbitrarv disfranchisement has not diminished
materially ... Progress ·toward achieving equal voting rights is
virtually at a standstill in many localities 3."
16. Education. In 1954 the Supreme Court of the United States decided
that enforced racial segregation in public education is a denial of equal
protection under the 14th amendment of the Constitution 4• The decision
recognized that the Negro and White schools involved had heen, or were
being, equalized, in all tangible respects, but held that separate educa
tional facilities are inherently unequal 4• A year later the Court reaffirmcd
the principle that racial discrimination in public education is unconsti
tutional and held that al! provisions of federal state or local law requiring
or pcrmitting racial segregation in public schools were void 5. Ali school
authorities were required to make a prompt and reasonable effort in good
5
faith to comply with the Constitution ,and lower courts were i.nstructed
to considcr the adequacy of the plans proposed by school authorities
"to effcctuate a transition to a racially nondiscriminatory school sys
tem ... with ail deliberate spced" 6. A large volume of Court decisions
followed over the years, in which the requirements of descgregation were
enforced 7• In many cases the Courts dealt with the unconstitutionality
of massive legislative resistance measures passed by southem states
8
opposing enforced desegregation of schools •
The efforts of the Suprerne Court to bring about integration in the
schools have met with but limited success. In 1961 the Commission on
CiYilRights reported: ·
'The Nation's progrcss in removing the stultifying effects of
segrcgation in the public elementary and secondary schools-North,
9
South, East, and \Vest-is slow indeed ." .
In 1963 the Commission found that progress continued to be slow in the
south 10,while in the north and west school segregation was still wide-
1 ;963 R.U.S.C.C.R., p. 16.
2 Ibid., p. IJ.
3 Ibid., p. 30.
4 I96r U.S.C.C.R.R., Book 2, p. 5.The Commission refers ta the decision as the
''historie dccision in the School Segregation Cases"'; the case is also known as Brown's
case.
5 Ibid .•p. 10.
6 Ibid.•p. 7.
7 Ibid .. pp.7-10 and r5-37, for further details.
8 Ibid .•Book 1. p. 6 and Book 2,pp. 65-77.
9 r961 U.S.C.C.R.R., Book 2,p. r73.
to r963 R.U.S.C.C.R., p. 63.440 SOUTH WEST AFRICA
spread because of existing segregated housing patterns and the practice
of assigning pupils to neighbourhood schools 1.
Seven years after the first Supreme Court decision mentioned above,
2,ofo: out of 2,837 school districts in tlie south in which both White and
Negro pupils were involved, had not even started to comply with the
Constitution 2•Others had barely begun a I2-year progression, and some
had kept the number of Negroes attending at formerly White schools at a
3
minimum • In the two years from I959 to I96I there was in the 17
southem and border states an increase of only I.5 percent. in the number
of biracial school districts which were desegregated at least in part •. In
1g63 most schools in the South continued to be segregated by official
policy 5•By then, about one-third of the biracial districts in the 17 sou
them and border states had policies or practices permitting the admission
of Negroes to formedya11-White schools; yetonly8 percent. of the Negro
6
pupils in these states attended schools with White children • Over 94
per cent. of these Negro students attended schools with Whites in the
six border states; three southem states still had no Negroes attending
schools with Whites below college level 6• In I964 it was estimated that
in the ro states of the Deep South less than six-tenths of r percent. of ail
Negro children attended school with Whites 7• Many of the southern
states have resisted desegregation by means of varions legislative and
8
administrative measures ; by Ig63 the Commission found no evidence
that this resistance was dissipating. Even token desegregation had only
corne after a lawsuit was threatened or prosecuted 9 •
In the north and west, where segregation is not officially countenanced,
10
it exists in fact in many public schools • ln New York City the number of
elementary schools containing 90 per cent. or more Negro and/or Puerto
Rican students more than doubled hetween 1957-1958 and 1963-1964;
during the same period the number of junior high schools so circum
stanced increased by 250 per cent. 11 This indicates a marked and pro
gressive segregation despite the fact that the New York City Board of
Education had made racial integration in the schools a major policy goal
12
in I955 .Similarly, in Chicago some 87 percent. of Negro elementary
school pupils attend virtually all-Negro schools, white in Phiiadelphia
I4 per cent. of ail public schools have a Negro enrolment of over 99 per
cent. 13
17. Employment. In the sphere of employment, non-discrimination has
1 r963 R.U.S.C.C.R .• p.53.
2 I961 U.S.C.C.R.R., Book 2.pp. 39 and 173.
l Ibid.,p. 173.
4
Ibid., p. 39 and for details, uide pp. 39-63.
' I963 R.U.S.C.C.R .• p. 53.
6 Ibid .• p. 63.
7 Silbennan. C. E., Crisis in Black and White (1964), p. 289.
8 I96I U.S.C.C.R.R., Book 2, pp. 65-98. The eruption of racial violence and
rioting as a result of enforced desegregation is referred to in para. 25,infra.
9 r963 R.U.S.C.C.R., p. 68.
10
11 I96r U.S.C.C.R.R., Book 2, pp. 99-115 and 173.
Silbennan, op. cit., p2gc. Decter. M., "The Xegro and the New York Schools",
Commentary, Vol. 38, Xo. 3 (Sep. 1964), pp. 25-34.
12 Silbennan, op. cit.,p. 290.
13 Bickel. A. M., "The Decade of School desegregation", Columbia Law Review,
Vol. 64, No. 2 (Feb. 1964), pp. 193-229 at p. 215. REJOINDER OF SOUTH AFRICA 44I
for many years been the declared policy of the Federal Government,
which is the nation's largest employer 1.Discrimination in federalemploy
ment, based on race, creed, or colour, was specifically proscribed in an
Act of 1940 1,and administrative measures were taken subsequently to
implement the policy 2•
Nevertheless, the Commission on Civil Rights found in 1961 that
discrimination against Negroes still existed in many branches of the
employment field and that such discrimination contributed to the de
pressed economic status of Negroes 3.With regard to apprentice training,
for instance, the Commission noted that large segments of the population
were denied access to work and training in many skilled occupation5
because of widespread prejudices against racial and ethnie groups, the
discrimination being the strongest and most widespread in the case of
Negroes 4.As a result, Negro workers continue to be concentrated in the
5
less skilled jobs •This in turn is reflected in Negroes being disproportion
ately represented amongst the unemployed 6 ; from 1958 to 1962, for
instance, the rate of unemployment for Negroes remained throughout at
more thari twice that of the White population 7• The Commission remarks
that the old adage that Negroes are the last hired and the first fired has
been all too clearly demonstrated 8• Also, Negro workers generally
occupy less senior positions than Whites 9, and their median income is
10
considerably less than that of Whites with the same level of education •
The Commission concluded that "... the goal of equal employment
opportunity is still far from achievement" 11• Other commentators have
taken an even more pessimistic view; finding that, contrary to popular
impression, the Negroes' economic position has actually deteriorated over
the last ten years, relative to that of Whites i2;_
18. Housing. In 1866 a Civil Rights Act was passed by Congress which
provided that ail citizens of the United States shall have the same rights,
in every state and territory, as is enjoyed by White persans therein, to
inherit, purchase, lease, sell, hold and convey real and personal property 13.
The 14th amendment of the Constitution guaranteed that this right could
not be denied on the state or local level 13•As early as 1917 the Supreme
Court had ruled unconstitutional an ordinance requiring racial segregation
in housing 13,a principle which was reaffirmed in subsequent decisions of
' r96r U.S.C.C.R.R., Book 3. pp. 6-17 and 19.
2 Ibid., pp. 21-26.
~ Ibid., pp. 2-3, 153 and 159-161.
• Ibid.,p. 108.
' Ibid., p. 153.
6 r963 R. U.S.C.C.R., p. 90.
7 United States Department of Labor, The Economie Situation of Negroes in the
United States (Revised 1962), pp. 4-5 and r963 R.U.5.C.C.R., p. 73.
• r96r U.S.C.C.R.R., Book 3, p. 1.
9 Ibid., p. 155 and Unitt,d States Department of Labor, The Economie Situation
of Negrnes in the United States (Revised 1962), pp. 4 and 6.
10 r96I U.S.C.C.R.R., Book 3, p. 155 and the United States Department of Labor,
The Economie Situation of Negroes in the United States (Revised 1962), p. 9.
11 r96r U.S.C.C.R.R., Book 3, p. 155.
12 Siiberman, op. cit.,p. ,p. Vide also Ki!lian, L. and Grigg, C., Racial Crisis in
America: Leadership in Conflict (1964), p. 117.
111961 U.S.C.C.R.R., Book 4, p. 16. SOUTH WEST, AFRICA
the Court 1• Since 1949 various administrative measures have been intro
2
duced with the object of ending segregation-in housing •
But the Civil Rights Commission found that it was still an urgent fact
that a considerable number of Americans were being denied equal oppor
tunity in housing by reason of their colour or race 3• Since the First
World \Var, when Negroes first moved north in significant numbers,
discrimination against them had been fairly common in roughly its
present form 1. By 1933 racial discrimination had become an operating
practice of the private housing industry 1. Residential segregation
4
between Negroes and Whites had increased steadily over past decades •
The forces preventing equality of opportunity in housing begin with the
prejudice of private persons, but they also involve large segments of the
organizcd business world 5•The Commission stated:
"Throughout the country large groups of American citizens
mainly Negroes, but other minorities too-are denied an equal
opportunity to choose where they will live. Much of the housing
market is closed to them for reasons unrelated to their persona!
worth or ability to pay. New housing, by and large, is available only
to whites ...
As a consequence, there is an ever-increasing concentration of
non-whites in racial ghettos, largely in the decaying centers of our
cities-while a 'white noose' of new suburban housing grows up
around them 6." ,
A member of the New York·:i\Iayor'sCommission on Intergroup Relations
has stated:
"The harsh reality is that the seemingly relentless ghetto trend
takes place under a smoke-screen created by the very 'gains' so
welcomed by proponents of civil rights. This trend moves on-white
we hait the enactment or introduction of anti-discrimination laws
state and municipal legislatures throughout the North and
in
West ... 7" •
Recently, even "the introduction of anti-discriminatory laws" suffered a
set-back in the state of California, when the electorate votcd overwhelm
ingly in favour of a proposed amendment to the state Constitution,
which would have the effect of nullifying California's Fair Housing Act.
This Act, also known as the "Rumford Act", was passed in 1963, and
made it unlawful "[f]or the owner of any publicly assisted housing accom
modation ... to refuse to sell, rent or lease or otherwise to deny to or
withhold from any person or group of persons such housing accommo
dation because of the race, color, religion, national origin, or ancestry
8
of such person or persons" .During the recent American election, the
voters of California were asked at the same time to vote on a proposal to
1 r96r U.S.C.C.R.R., Book 4, p. 16.
2
r963 R.U.S.C.C.R., pp. 96-101.
3 r96r U.S.C.C.R.R., Book 4, pp. 141-145 and r963 R.U.S.C.C.R., p. 95.
• Silberman, op. cit., p43.
~z96r U.S.C.C.R.R .. Book 4, p. 2.
6 Ibid .. p.1and vide also r963 R. U.S.C.C.R., p. 95.
7 Horne. F. S., "Interracial Housing in the United States", Phylon ,Vol. XIX, No.
1 (Spring 1958), pp. 13-20 at p. 14
8 State of California, Department of Justice, Constitutional Rights Section.
Equal Rights under the Law: Key Laws, Fair Housing Act (1964). REJOINDER OF SOUl'H AFRICA 443
amend the state Constitution; the amendment was to prohibit the state
and its agents from denying, lim.iting or .abridging "the right of any
person, who is willing or desires to sell, lease or rcnt any part or ail of his
real property, to decline to sell, lease or rent such property to such person
1
or persons as he, in his absolute discretion, chooses" . In the result, the
proposed amendment was approved by 4,IOI,295 votes to 2,n6,318, and
the Fair Housing Act thus rendered nugatory.
Another commentator has referred to-
"... the kind of racial movement which, in the last thirty years,
has tumed segregation from a negligible city phenomenon into a
vast urban institution 2."
r9. Justice. In the United States, it has been said, the jury is perhaps
the most important instrument of justice, for jury service is the only
avenue of direct participation in the administration of justice open to
the ordinary citizens 3• In 1875 a law was enacted prohibiting jury
exclusion by reason of race; since that time the exclusion of persons from
juries by reason of their race.bas always been a federal crime-\. For over
80 years the Supreme Court has repeatedly held the discrimînatory
exclusion of Negroes from jury service to be a violation of the equal
protection clause of the r4th amendment 5•
Still:
"The practice of racial exclusion from juries persists today even
thongh it has long stood indicted as a serious violation of the 14th
amendment. As a result, the bar of race and color is placed at the
only gate through which the average citizen may enter for service in
the courts of justice 6 ."
The Commission on Civil Rights found that, while the discriminatory
exclusion of Negroes from juries bas diminished during the past century,
this badge of inequality persists in the judicial system of many southem
counties, in some of which the practice of jury exclusion is an enduring
7
institution . In II out of 21 southem "black-belt" counties Negroes have
never served on grand or trial juries 8.
20. Social Contact. The Federal Govemment's policy of non-discrimi
nation does not appear to have stimulated social integration between
Negroes and Whites to any marked degree. Two sociological studies, the
one conducted in an upstate New York community 9, and the other in a
10
small New England town , have recently been referred toin the following
terms:
1 Proposed Amendments eoConstitution: Proposition and proposed Laws, together
with Argument, Compiled by Morrison, A. C. (1964), Part I, p. 18 and Part Il, p. 13.
2 Clark, D., Th8 GhettoGame: Racial Confücts in the City {1962), p. 43.
3 I96I U.S.C.C.R.R., Book 5, p. 89.
• Ibid., pp. 89, 95.
' Ibid.,pp. 89, 95 and 108.
~ Ibid., p.IOJ.
7 Ibid., pp. 1o6, 108.
5 Ibid.,p. 92.
9 Johnson, R., "Negro Reactions to Minority Group Status", in Barron. M.
(Ed.), American Minorilies (1957), pp. 192-212.
10 Lee. F. F., "The Race Relations Pattern by Areas of Behavior in a Small New
England Town". American Sociological Review, Vol. XIX, No. 2 (Apr. 1954),
pp. 138-143. SOUTH WEST AFRICA
444
"These two studies of race relations in communities with very
small Negro populations, lacking 'Southern traditions', and located
in states which have civil rights laws and commissions, demonstrate
the pervasiveness of the sense of 'the Negro's place' as an alien and a
social in/erior throughout American society. Summing up studies of
the Negro's position based on 'social-distance scales', Muzafer and
Carolyn Sherif observe that there is a scale of social distances
established throughout the United States, accepted in some degree
by the overwhelming majority of people, and remaining remarkably
consistent overalong time period. The Negro remains near the bottom
of this scale, below even recent immigrant groups 1." (Italics added.)
2I. ln General. Respondent submits that the brief survey contained
in the preceding paragraphs hereof lends considerable support for the
view of the American situation expressed by the Washington correspond
ent of The Times on 27 August 1963 in the following terms:
"... there can be no argument that the combination of favourable
circumstances here has failed to produce even the beginnings of an
integrated society. The assimilative processes of American society, it
seems, cannot absorb Negroes, even with the help and urging of a
benevolent Federal Government 2." (Italics added.)
22. Two observations on the pattern of racial discrimination in the
United States require to be made. On the one band:
"Discrimination against Negroes seems to be positively correlated
with their relative number 3." (Italics added.)
"lt is apparent that the degree of raâaJ prefudice and discrimination
is highly correlated with the relative size of the groups involved ... 4"
(Italics added.)
In regard to the registration of Negroes as voters the Commission on
Civil Rights reported:
"Another pattern that emerges is an inverse correlation between
Negro concentration and Negro registration ... In the more Southern
States, both on a statewide basis and in terms of counties, a greater
concentration of Negroes generally means a smaller proportion of
Negroes registered. Perhaps the reason for this relationship is that
the white community sees a high concentration of N egroesas a political
threat and therefore feels impelled to prevent Negroes /rom voting.
Certainly events in Macon County, Alabama, and Fayette and
Haywood Counties, Tennessee, where the whites reacted vigorously
to an apparent threat of Negro political inundation, suggests such
a pattern ... 5" (Italics added.)
On the other band, discrimination against Negroes is certainly not
confined to those areas of the United States where the majority of the
1 Killian, L. and Grigg, C., RacialCrisiin America: Leadership in Conflict (1964),
pp. r12-rr3.
2 The Times (late London air edition),27 Aug. 1963.
3 Becker, G. S.The Economies of Discrimination (1957),p. 123. Vide also Berelson,
B. and Steiner, G. A., Human Behavior: An Inventory of Scientific Findings (1964),
p. 515.
• U.S. News and World Report, 30 Illar. 1964,p.37.
' r961 u.s.c.c.R.R., Book I,p. 112. REJOINDER OF SOUTH AFRICA 445
Negro population reside 1. Dealing with the differing nature of civil
rights problems in the north and the south, the Commission commented
as follows:
"ln the South race restrictions have been strongly supported by
law, tradition, and popular attitudes. In the North, whcre Negroes
until recently have been a small proportion of the total population,
restrictions are not the result of law, official policy, or acknowledged
tradition-indeed many cities and States have laws prohibiting
discrimination. Yet discrimination persists 2.''(Italies added.)
G. Detrimental Results of the Federal Govemment's Policy in the
United States
23. Thus far Respondent has drawn attention to the extcnt to which
the anti-discrimination policy of the United States Government, which is
reflected in its legislative and executive actions, has failed to achieve the
object of wiping out racial discrimination against Negroes. Reference
must now be made to gricvously harmful results that have followed in
the wake of governmental attempts to enforce desegregation. These
have included strong and widespread resistance by the White population
to enforced integration; racial tension, riots and violence; and large-scale
bloodshed and damage to property. Respondent \vtll not attempt to give
a complete account of the occasions on which racial conflict in the United
States has erupted into violence over the past decade; the examples
mentioned in the following paragraphs hereof will suffice for the purposes
of Respondent's argument.
24. The Commission on Civil Rights noted that-
"... since the Supreme Court desegregation decisions and increas
ingly urgent demands by Negroes for full equality, tension and
violence have increased in some parts of the country 3." (Italics added.)
"... this Commission must report that Negro citizens in some places
today live itt fear of violence-accornpanied by fearsome doubts
regarding police integrity on race problems. It has seen this fear in
the attitudes of Negroes it has interviewed; in their unwillingness
to testify before the Commission-often in their umvillingness even
to speak to Commission representatives. The same fear sometimes
prevents the citizen from seeking redress from the Federal Govem-
·rncnt for violation of his rights. This fear is often without foundation
any longer-but it exists 4." (Italics added.)
"The present conflict has brought about some progress, but it has
also created the danger that white and Negro Americans may be driven
even further apart and left again with a legacy of hate, fear, and mis
trust5." (Italics added.)
1 "In 1900, about 90% of Negroes lived in the South, Iargely in rural areas . ·~·
By 1960, only 6o% were still in the South, and the majority of them-were in towns
and cities. Sorne 38% were in urban areas in the North or West. Only about one
fourth remained on farrns,nearly ail in the South." United States Department of
La2or, The Economie Situation of Negroes in the United States (Revised.1962), p. 2.
I96r U.S.C.C.R.R., Book 1,p. 12.
i Ibid., Book 5, p. 33.
• Ibid..p. 43.
~ r963 R. U.S.C.C.R., p. 4. SOUTH WEST AFRICA
Recent events do not suggest that there bas been an improvement in the
situation described by the Commission, as will appear below.
25. An example of the resistance to enforced desegregation of schools
is affordcd by the events in the town of New Orleans, Louisiana, during
1960-1961 1• When it appeared in the summer of 1960 that the federal
Court order to desegregate the first grades of New Orleans schools in
the autumn of 1960 would be enforced, the Governor and General Assem
bly of Louisiana resisted by every means at their command. In five days
of "hysteria" during November 1960, 21 emergency bills were passed
to preserve segregation. The General Assembly was called into spedal
sessions five times during 1960-1961, at a total cost to the taxpayers of
S934,ooo, in a vain attempt to prevent the admissfon of Negro children
to the White schools. On 14 November 1960, four 6-year-old Negro
girls, accompanied by United States l\1arshals, enrolled in the "William
Frantz'.' and "McDonough 19" elementary schools. A day of rioting
followed; White high school students, thwarted in their ambitions to
"get the Mayor" and march on the schools, burnt the American flag;
screaming mobs of women milled in front of the two schools.
The Commission remarked that the violence that occurred in New
Orleans in conjuction with school dcscgregation stands out in striking
contrast to the city's reputation of galety. The schools were promptly
boycottcd by most \Vhite pupils; some transferred to schools in an
adjoining parish, but it is estimated that nearly 300 White children
received no schooling whatever throughout the school year. The number
of White students attending "William Frantz" with one Negro girl
reachcd a maximum of 23 in December 1960, but "l\IcDonough 19" was
completely boycotted by White pupils until January 1961, when a White
boy joined the three Negro girls there. At the end of the 1961 school ycar
only 15 White pupils were enrolled at "William Frantz" with one negro
2
girl, and only the three Negro girls attended "McDonough 19" • By 1963
Negroes represented only slightly more than 1 percent. of the children in
Louisiana's desegregated schools 3.
26. The history of Birmingham, Alabama, prior to 1950, includcd a
number of bloody incidents, in which the element of race was partly
involved 4. By the early 1950s industrial peace and lessening racial
tension had led some people to believe that a permanent break had been
achieved in the unhappy tradition of violence 4 •With the second School
Desegregation Decision on 31 May 1955, however, racialism and violence
revived in Binningham 5• Racial tension and acts of violence increased
throughout the State.
"From 1956 to 1961 at least 20 violent acts were publicly reported
in Birmingham alone, including allegations of racially-motivated
beatings, bombings, and one castration 6."
In 1956 a segregationist told a rally in Birmingham: "\Ve want trouble
.and we want it everywhere we can get it" 7 •In 1957 a White mob
1 Vide 1961 U.S.C.C.R.R., Book z, pp. 41-43.
2 Ibid., p. 33.
3 1963 R.U.S.C.C.R., p. 231..
• 1961 U.S.C.C.R.R., Book 5, p. 34.
5 Ibid.,pp. 33-37.
6 Ibid.,p.34.
7 Ibid.,p. 35. REJOINDER UF SOUTH AFRICA 447
attacked a White man who had joined a Negro leader and his wife in a
White station waiting room, and stoned his car; later in the same year
the same Negro was attacked and severely beaten by a White mob which
also hurled stones at cars driven by Negroes. Acts of violence continued
in 1958, 1959 and 1960. In the last-mentioned year Birmingham's Police
Commissioner dedared:
"The truth is, ladies and gentlemen-they (Negroes) don't want
racial equality at ail. The Negroes want black supremacy.
Yes, we are on the one-yard line. Our backs are to the wall. Do we
let them go over for a touchdown or do we raise the confederate flag
as did our forefathers and tell them, 'You shall not pass!' 1."
In 1961 a field report of the Civil Rights Commission found "... the
clearest documentation of the climate of fear and the conspiracy of
silence that exist in Birmingham", and concluded as follows:
"Racial prejudices are incredibly tense in Birmingham. Until
local leaders make a concerted effort to control those feelings, the
slightest provocation can be expected to unleash acts of violence as
ugly and 2s frightening as any that Birmingham has seen in its ...
history ."
About .three weeks after the field report was written, two small groups of
White and Negro bus passengers, styling themselves "Freedom Riders",
embarked on a journey from \.Vashington to the southern states with the
avowed purpose of challenging racial segregation in inter-state bus travel.
When they reached the state of Alabama, violence erupt1;d 3•A mob of
Whites of Birmingham attacked the bus passengers, and a Birmingham
newspaper commented that fear and hatred stalked Birmingham's
streets 4. Similar events occurred in the towns of Anniston and Mont
gomery, the state capital: in the former, an incendiary device was thrown
through the window of the bus, setting it afue; in the latter, another
group of "Freedom Riders" was attacked and brutally mauled by a mob
of White men and women, and a similar mob rioted outside a church
where Negroes were holding a meeting, setting fire to one car and stoning
others.
Shortly thereafter Attorney-General Robert Kennedy expressed the
hope that the tragic events in Alabama would not again arise in the
country 5• His hope was not fulfilled; Birmingham itself again experienced
racial violence in 1963 6. Early in that year the Negro leader Martin
Luther King, describing Birmingham as the most thoroughly segregated
big city in the United States, announced that he would lead demonstra
tions there until this situation was permanently altered. In April, Ncgroes
began a daily march through the city, and each day more of them were
arrested; within three weeks hundreds had been arrested. On 7 May the
demonstrations erupted in violence: more than 2,000 Negroes swarmed
through police lines, moved down town and pelted the police with stones.
Altogether more than 3,000 Negroes had been imprisoned before the
1 r96r U.S.C.C.R.R., Book 5, p. 35.
2 Ibid., p. 36.
3 Ibid., pp.29-33.
4 ibid., p.30.
' ibid.,p..44. . .
6 Vide MacAdam, L, The Annual Register of World Events: A Review of the Year
1963 (1964), pp. 181-182. : : .,. ,': . . SOUTH WEST AFRICA
1
demonstrations wcre over . Dogs, clubs and firehoses were used to dis
perse mass dentonstrations 2• Bombs exploded in the bouse of Dr. King's
brother and at the headquarters of the Negro campaigners, touching off
a night of rioting in which at least 50 people were injured.
Troops had to be used to enforce a federal Court order for the ad
mission of Negroes to the University of Alabama. The President of the
United States appealed to the nation to examine its conscience about this
and of related incidents; shortly after he had finished speaking the
Negro secretary of the National Association for the Advancement of
Coloured People in Mississippi was shot in the back and killed outside
his home in Jackson 2•
·27. Sometimes the reaction of the White section of the population to
enforced integration has taken the fonn of economic reprisais against
Negroes. Thus, in Fayette and Ha:rwood Counties, Tennessee, a drive to
-encourage the registration of Negroes as voters led to intensive and
serious economic retaliation by the \Vhite population 3• Negroes who
registered themselves to vote were boycotted; traders ceased trading
with them; their credit was stopped; their loans callcd up; their mort
gages foreclosed; their employment, sharecropping and tenancy relation
ship tenninated 3•
28. Peaceful sit-in demonstrations by Negroes sparked off racial
·violence in Jacksonville, Florida, during August 1g60 4• It started when
\\'bite men launched a series of attacks on Negroes in an apparently
<:arefully planned assault. The Whites were armed with axe handles and
baseball bats; two White men were seen cutting the wire from a bundle
<:ontaining about 50 new axe handles, which were passed out to the
waiting crowd. The attacks soon developed into a race riot which con
tinued for several days.
29. Although it bas been observed that-
"[t ]he greatest resistance to school desegregation and extension of
the franchise arises in those areas where the size of the Negro popu
5
lation approaches or exceeds that of the white ",
violent resistance to enforced desegregation has not been confined to the
-southern states of America. The Commission on Civil Rights stated:
"No section of the Nation has a monopoly on racial violence. In
the North and West the breeding places for discord have been the cities
where large concentrations of N egroes and whites are in direct compe
tition for employment and housing. Following mass Negro migrations,
racial tension erupted in Detroit, Los Angeles, New York, and in
other cities during the early 1940s causing severe loss of life and
property damage 6." (ltalics added.)
30. In the north, the more recent history of violence in Chicago, from
I953 to 1961, bears testimony to the racial explosions that may accom-
1 MacAdam, op. cit.• p182.
2 r963 R. U.S.C.C.R., p. 114.
3 As described in r96r U.S.C.C.R.R .• Book 1, pp. 36-37.
• As described in r96r U.S.C.C.R.R .• Book 5, pp. 37-39.
5 Dr. Brewton Berry, as quoted in U.S. News and World Report, 30 Mar. 1964,
~~ ·. .
6 r96r U.S.C.C.R.R., Book 5, p.39. REJOINDER OF SOUTH AFRICA 449
pany compulsory desegregation 1. In July 1953, the Trumbull Park
Housing Project riots started in the South Deering section of Chicago.
As soon as Negro families began moving into the previously all-White
project the residents of the neighbourhood started rioting. During the
next four years Whites committed numerous acts of violence against the
few Negroes in the project. ~'egro tenants had to travel to and from their
homes under police guard. On some occasions 1,200 policemen were
assigned to caver the housing project area during the course of a 24-hour
pcriod.
In the summer of 1957 rioting began again near the South Deering
area; this time the issue was the use of Calumet Park by Negroes. The
police did not prcvent crowds numbering sevcral thousands from gather
ing outside the Park on consecutive Sundays, from throwing rocks at
Negro motorists, or from attacking Negro pedestrians. For several weeks
the situation was tensc, and hundreds of police were required to keep it
from getting worse •
Another incident took place in 1959, when a Negro family bought a
house on \Vest Jackson Boulevard 1.Crowds gathered, rocks were thrown
and threatening telephone calls made. Two miner disturbances occurred
in the summer of 1960. One was at a beach, the other in a city park; both
were prompted by Negrocs using swimming facilities usually only uscd by
Whites. In 1961 new instances of inter-racial violence again erupted in
Chicago; the Police Department took vigorous action to qucll the
trouble 1.Chicago's history of racial violence continued up to the summer
of 1964, when violence again broke out there.
3r. Perhaps the worst instances of racial conflict occurred most
recently when during the summer of 1964, violence rocked the United
States. This explosion of racial violence followed shortly after the United
States Congress had again passed a Civil Rights Act in furtherance of its
policy. From 18 July untit 23 July New York City suffered rioting
that broke out in the Negro residential section. Before the rioting was
brought under contrai by police armed with hand guns, rifles, shot guns
and tear gas, one persan was killed, 144 werc injured, 519 wère arrested
and 541 places of business were damaged and looted at a cost to the
communitv of nearlv 2 million dollars.
On 24 and 25 Jul)' Negro rioting broke out in the northern New York
community of Rochester. Before the National Guard could restore
order four persons had been killed, 350 wcre injured, 976 were arrested
and 204 places of business were damged and looted at a cost to the
community of between 2 and 3 million dollars.
On 2, 3 and 4 August Negroes rioted in Jersey City, New Jerscy
another northern metropolitan area-and bcfore peace was restored
46 persans were injured, 65 arrested and 71 places of business damaged
and looted at a cost to the community estimated at three hundred
thousand dollars. ·
From 28 August until 30 August rioting raged throughout the Negro
districts of Philadelphia, during which 341 persons were injured in the
fighting, 774 were arrested and 225 places of business were damaged and
1
2 As described in r96rU.S.C.C.R.R., Book 5, pp. 39-41.
The Chicago Commission on Human Relations estimated thatit costs' $1,800,000
in police protection"to keep the city free of uncontrolle(race),rioting':-:--,Veyl,
N., The Negro in American Civilization (1960),p. 307. · ·450 SOUTH WEST AFRlCA
looted at a cost to the community of more than 3 million dollars. The
cost involved in maintaining riot police to cordon off Negro areas for
days and for rushing in National Guard units is not known 1•
32. As far as Respondent is aware, no attempt has been made to esti
mate the material and human costs involved in the Federal Government's
programme of integration in the face of White resistance. An indication
of the magnitude of such costs is the fact that the Federal Government
spent $4,522,964 in order to secure the admission in 1962 of one Negro
student into the student body of the University of Mississippi: 14,000
troops, including the Army National Guard, the Air Force, the Military
Air Transport Service and United States l\1arshals were used to effect
the integration. Two persons were killed and hundreds injured in the
protracted fighting that ensued 1.Yet, at the time of writing, no Negroes
are enrolled at the University of l\lississippi.
33. The above, then, presents a brief picture of some aspects of the
implementation of the United States Government's civil rights policy,
and of the effects thereof. Respondent submits that it has been shown
that, on the one hand, governmental action in the United States over a
period of many years has not been successful in ending discrimination
against Negroes, or even in bringing the end visibly nearer; white on the
other hand the detrimental results of the Govemment's policy have been
enormous.
In the Jight of the aforegoing, it is not surprising to find that there is
indeed no weight of authority in favour of Applicants' thesis about the
desirability of attempts at enforcement of integration by govcrnment
action-a matter which is dealt with in the succeeding paragraphs.
H. The Views of Authorities Quoted by Applicants
34. Sorne of the authorities quoted by Applicants do not appear to
hold the views ascribed to them in the unqualified form suggested by
Applicants. This is ilJustrated by the following further quotations from
the works of some of the authors referred to by Applicants:
(i) J. Dean and A. Rosen 2:
"Intergroup understanding is impeded by ignoring individual and
group diffcrences and treating all persons as though they were
alike 3."
1 For a surnmary of the above figures,vide a report inU.S. News and World Report,
r4 Sep. 1964, pp. 36-41. From the report, it is not clear to what extent, if any, the
rioting referred to in the text is linked with the passing, shortly before, of a Civil
Rights Act. Sorne commentators quoted in the report said that the riots were not
essentially a race problem. Yet, according to the report, the trouble in Rochester
exploded after a routine arrest by two White policemen of a Negro charged with
being drunk; New York's riots began as a protest against the killing of a Negro
youth by a White police lieutenant (who was later cleared of criminal responsibility);
in Jersey City the riots began after a routine arrest of a Negro woman for drunken
btawling; and in Philadelphia rioting began soon after a routine police atternpt ta
remove a Negro woman from a car that was blocking traflic at an intersection. The
fact that incidents such as these could spark off rioting is indicativethat a tension
situation already existed.
2 IV, p.308, footnote 1.
3 Dean, J.P. and Rnsen,.A., A Manual of Intergroup Relations (1955), p.19. REJOINDER OF SOUTH AFRICA 451
''... but genuinely equal treatment cornes from recognizing real
ethnic-group differences, so that each individual can be understood
in the context of his own ethnie traditions and experiences 1."
"We do not mean that the leaders should proceed rigidly, ignoring
individual and group variations in readincss to change 2."
(ii) G. Saenger 3:
"Needless to say, existing laws may be circumvented or not en
forced even where adcquate machinery cxists. ln New York State,
for cxample, discriminatory advertising was forbidden by law in
1943. Since that time resort places advertising in the New York
newspapers simply substituted the phrase 'near churches' for the
outlawed phrase 'restricted clientele'. While New York State pos
sesses a law which forbids discrimination in higher education it
has been singularly ineffective. There have been only three corn
plaints made to the enforcing agency 4."
(iii) H. Blumer 5, with reference, inter alia, to the statemcnt quoted
by Applicants:
"The above policy principles---even as principles-are crude and
require refinement and qualification 6."
(iv) R 1\1.Williams, Jnr., and l\I.W. Ryan 7:
"A clear definition of law and policy by legitimate socialauthorities
may reinforce willingness to conform to the requirements of new
situations . . . Important social changes generally do not occur
without some resistance and friction 1." (Italics added.)
(v) E. A..Suchman etal. 9:
"From the point of view of practical application, the implications
of these propositions for the practitioner should be taken merely
as suggestive. These suggestions must be viewed with extreme
care and only as general guide fines. Only in combination with
specific knowledge of a local community setting could they be
used as directives for action 1.''
(vi) M. Tumin 11,writing about the cnthusiasm for the use of legal
restraints against discrimination:
'This enthusiasm has been tempered, in more sober appraisals, by
the realization that no matter how temporarily effective legal
restraints may prove, one cannot hope to develop continuous and
t Dean, J.P. and Rosen, A., A 2W-anualof Inlerg,oup Relations (1955), p. 21.
~ Ibid.,p. 88.
3 IV, p. 308, footnote 2 and V· 309. footnote r.
• Saenger, G., The Social Psychology of Prefudice (1953), p. 270.
5 IV, p. 308, footnote 3.
6 "Research on Racial Relations: United States of America'', International Social
Science Bulletin, Vol. X, No. 3 (1958). p. 433.
1 IV, p. 308. footnote 4.
8 Williams, R. M. (Jnr.), and Ryan, l\l.,v.. Schools in Transition: Comrnunity Ex
periences in Desegregation (1954), p. 247.
9 IV, p. 308, footnote 5. .
10 Suchrnan,TE ..A. etal.,Desegregation: Sorne Propositions and Research Sugges-
tions (1958). p. 5. .,
11
IV, p. 309, footnote 2 and p. 310, footnote 2.452 SOUTH WEST AFRICA
stable traditions of non-discrimination through legal instruments
alone 1."
(vii) R. M. Williams, Jnr. 2,states that-
"[t]he existence of laws protecting the rights of minont1es and
court decisions upholding thesc laws tend, in the long run, to
decrease conflict over the rights involved 3."
"Whenever there is sufficient fiexibility in pitblic attitudes, the
abolition of legal discriminations and disabi1ities in the long run
will reduce hostility and conflict 4." (Italics added.)
(viii) Dr. Gordon Allport 5:
"To sum up: \Vhile it is true that many Americans will not obey
laws of which they disapprove strongly, most of tl~ern deep inside
their consciences do approve civil rights and antidiscrimination
legislation 6." (Italics added.)
"\Ve have said that laws will, by and large, be obeyed if they are
in line with one's conscience, and i/ they are tact/ttlly administered.
\Ve should add an additional condition: they slwuld not be felt to
be imposed by an alien will . , . Prejudices are not Iikely to be
rcduced by laws which, in the manner of their passing, arouse other
prejudices 7." (Italics added.)
(ix) K. B. Clark 8:
"Within thepresent ambiguities and conflicts of social theory; it is
difficult for the contemporary social scientist to take a clear stand
against the point of view held hy some practical men that 'one
must change men's hearts be/ore one can change their social be
haviour' 9." (Italics added.)
(x) r1LDeutsch 10:
"To determine if the passive, legally based acquiescence to de~
segration by some individuals actually is a mask for persona!
acceptance of desegregation would be an extremely important task
in understanding the undcrlying dynamics of the inctividual
'leader's' or influential person's role in social change. I would feel
that it would be extremely difficult to impose desegregation by
normative legal processes unless there were at least this type of
ambivalence on the part of a certain proportion of commimity leaders
and decision-makers. A variable such as this might play a significant
1 Tumin, M. M., Desegregation: Resistance and Readîness (1958), p. 84.
2 IV, p. 309, footnote 3.
3 Williams, R. M. (Jnr.), The Reductio11 of Intergroup Tensions: A Survey of
Research on Problems of Ethnie, Racial, and Religious Group Relations (1947).
pp. 73-74.
• Ibid., p.74.
5
IV, pp. 309-310, footnote 1; p. 310 and p. 312, footnote 1.
6 Allport, G. W., The Nature of Prejudice (1954), p. 472.
1 Ibid., p.473.
8 IV, p. 310, footnote 3.
9 Clark, K. B. (Issue Author), "Desegregation: An Appraisal of the Evidence",
The Journal of Social Issues, Vol. IX, No. 4 (1953), p. 72.
10 IV, p.310, footnote 4. REJOINDER OF SOUTH AFRICA
453.
role in explaining the absence or presence of violence in one or
another comnmnity 1." (Italics added.)
35. The above-quoted views of authors cited by Applicants have ail
been expressed with reference to the situation in the United States 2,
where, as has been pointed out earlier 3, conditions are ideal for the
enforcement of anti-discrimination legislation.
Apart from these authors, Applicants have also quoted authors com
menting on racial integration in Canada, New Zealand and Great Brit
ain 4. But Applicants have made no attempt to show that the basic facts
of the racial situation in these countries are comparable with the facts of
the situation existing in South West Africa. In fact they are not. A
referencc to the population figures in each of these countries is sufficient
to show that the composition of the racial groups there is fundamentally
different from the situation existing in South West Africa. Thus, in
Canada, Negroes form only about 0.2 percent. of the population, Euro
peans about 96.8 percent. and other groups 3 percent. In New Zealand,
the Maoris constitute but 4 percent. of the total population, Europeans
6
about 90.5 percent. and other groups 5.5 percent.
In passing it may also be noted that many New Zealanders have been
reported to feel that attempts to force the pace of integration will succeed
merely in accentuating race-consciousness, while some Maoris fecl that
treasured traditions and something of their distinctive identity as a race
may suffer if too many controls are brought to bear, where basically
continued tolerance is the rcal social requirernent 7.
In Great Britain, the non-White section of the population forms Jess
than 2 percent. of the total population 8•The racial situation in Great
9
Britain has been more fully referred to elsewhere in this Rejoinder •
I. The Views of Authorities and Commentators Opposed to those
Quoted by Applicants
36. Respondent does not dispute the suggested premise of Applicants'
argument, v:iz., that attitudes are learned and can be unleamed. But in
so far as Applicants' argument contains the further, implied gencraliza
tion that ail or any attitudes can be unlearned with equ:il facility, what
ever the setting may be in which they occur, it loses sight of the fact that
attitude modifiability is determined by a number of factors, not the least
of which is the group affiliations of the individual concerned. This is
illustratcd by the following findings of Professors Berelson and Steiner:
"Given consistent support from historical, parental, group, and
strata characteristics [opinions, attitudes and beliefs], are unlikely
1 Deutsch, M., "Sorne Perspectives on Desegregation Research". The Role of the
Social Sciences in Desegregation: A Symposium, pp. 4-6 at p. 6.
2
The same applies to M. Berger, IV, p. 310, footnote 5, A. Rose, ibid.,p. 311,
footnote 5 and C. R. Nixon, ibid.,p. 311, footnote 6.
3 Vide paras. 5-10, supra.
• IV, pp. 310-31 r.
3 Onited Nations Demographic Yearbook r963, Special Topic: Population Census
Stalistics II, FifteenthIssue (1964),p. 311.
6 Ibid.,p. 317.
7 According to a report in The Times, 7 Dec. 1962.
• An estimate made by Moses Gohoho in The Star, 13 Oct. 1964.
• Vide Chap. III, Annex XV, supra. 454 SOUTH WEST AFRICA
to change at ail. If, for example, historical conditions remain the
same; if the parents have felt strongly and hannoniously about a
particular matter and instilled the appropriate belief early and
thoroughly; if strata characteristics in later life are consistent with
the position; if the primary groups surrounding the person agree on
the matter-then it is hardly too rnuch to say that the [opinions,
attitudes and belie/s] simply wi!t not change 1." (Italics added.)
37. With regard to Applicants' contention that legislation can be used
to change attitudes, the ineffectiveness of legislation that does not coïn
cide with the mores of the people has been recognized by various author·
ities. Berelson and Steiner summarize contemporary findings as follows:
"Social changes, however large, that are desired by the people
involved can be assimilated with little social disruption. Changes
that are not desired, even quite srnall ones, can be put into effect
only at considerable social and personal cost ... Social changes imposed
on a society /rom outside are especially likely not ta beaccepted. Forced
change from the outside tends to result in overt compliance but
covert resistance ." (Italics added.)
38. Contemporary science leavcs little doubt that human groups are
animated by what are frequentlv termed in-group preferences and out
group aversion; a recent summary of research findings states unequivo
cally that in-group preference, accompanied by a tendency to prejudgc
or stereotype members of out-groups, is universal, existing in every kind
3
of human society . No authority is required for the proposition that the
fact of permanent racial difference is a real, enduring and socially im
portant fact. A situation conceived as threatening the survival of one's
own group (e.g., economic or socio-cultural competition) gives rise to
an attitude of persistent and resistent national hostility. Thus, attitudes
arising from racial and cultural differences between groups are particu
larly strong, deep-seated and resistant to change. This is illustrated by
the following comments on the situation in the United States:
"It is true that the prohlems of assimilation presented by the
great floods of immigrants from Europe have become largely re
solved with time, leaving only limited and local adjustments to run
their course. Where the color line i'st'nvolved, there is stitt stubborn
resistance to complete assimilation ... ''
''We are peoples whosewhole cultural systems aregeared to change,
but there are also limits to the changes which can be made without de
struction of the essentialsof our cultural ways of life4." (Itahcs added.)
"... therc is this significant difference which we shall stress, that in
regard ta the colored minorities, amalgamation is violently denied them,
while in regard to all the other minorities, it is welcomed as a long
run process ." (Italics added.)
1
Berelson, B. and Steiner, G. A., Human Behavior: An lnventory of Scientific
Findings (1964), p.575.
t Berelson and Steiner, op. cit., pp.613-614.
3 Suchman, E. A. et.al., Desegregation Sorne Propositions and Research Sugges
tions (1958), p. 57.
+ \Valter, P. A. F. (Jr.).Race and Culture Relations (1952), pp. 408 and 412
respectively.
~ Myrdal, G.. An America» Dilemma: The )<egro Problem and Modern Democracy
(1944), p.52, footnote a. REJOINDER OF SOUTH AFRICA 455
"While amalgamation is considered the approved way of solving
the problem of our foreign white immigrant groups, Americans are
opposed to the assimilation of the 'racial' minorities, Negroes, Orien
tais, Mexicans, and Indians. They insist on keeping their racial
minorities separate 1.''
39. Applicants' contention that discriminatory behaviour inay be
modified by the enforcement of anti-discriminatory legislation is no
doubt true to the extent that an individual can be forced to behave in
a prescribed manner, that hc can be /orced to do almost anything. But
what Applicants omitted even to mention, are the indisputably harmful
effects of coercion, when the result sought to be achieved is opposed to the
habitually accepted norms and traditional values of the society. Changes
of this nature cannot be brought about, even by force, without resistance,
and resistance results in disorganization:
"The more a social change threatens or appears to threaten the
traditional values of the society, thegreatertheresistancetothatchange
and the greaterüs attendant costin social and personal disorganiza
2
tion .''(Italics added.)
Where there are actual or potential conflicts between racial or cultural
groups within a nation, each national group looks increasingly to its
3
own internai unity • A clash of cultural standards tends to weaken the
hold of both cultures on individuals ~;conflict between habituai norrns and
requirements of new-life situations leaves the individual confused and
disturbed 5• When the old concept of rights and duties is broken down,
6
the results are class friction and pathological relationships ; a change
in the traditional way of life leads to friction and insecurity, to social
tensions and disruptions 7•Cultural conflict operates to produce crime,
becausc it creates confusion in standards of conduct and in emotional
balance for some individuals and bccausc it results in hatred and strife
between nations and betwecn groups within a nation 8• This has been
proved by experience in the United States; thus, within the zones occu
pied separately by various cultural and racial groups, the crime rate is
relatively low, but where zones overlap zones of other cultural or raciàl
groups, places where cultural conflict is most likely to be acutè, the rate
of cnme and delinquency is highest 9.1\loreover: "... Along the bounda
ries of change, race conflict frequently explodes into violence" 10• · ·
40. Enforced assimilation as a solution to racial problem.s has been
~ejected in the following terms by Paul A. F. Walter, writing in 1952;.
"As a general rulc, enforced assimilation becomcs arres.ed short'. .
1 Saenger, G., The Social Psycholo1;y of Prejudice (1953), p. 162.
1
Berelson, B. and Steiner, G. A., Human Behavior: An Inventory of Scientific
Findings (1964), p. 614.
3 Walter, P. A. F. (Jr.), Race and Culture Relalions (1952), p. 408.
• Ibid., p. 440. , . ·.-i
:~;Jt} ~p~/;::.l Pathology (Revised ed., 1939), p'.-6~0, ' ·, : , .. ,_ci:,.
· Ibid., p. "564. ! .1• T 1.!1 l
8 Gillin,J. L., Criminology and Penology (3rd ed., 1945), pp. 199-200.:, ··'···/:~;.;:\
9 Sutherland, E. H. and Cressey, D. R., Principles of"Criminology (1955),.p.'147
and Walter,)'.,A, F: (Jr.), Race and Culture Relations (1952), p.,435;, ·i! ,, ·•
'JO :\'l'èyl, N.-TM.Negro in American-Civiliiation (r96o); p.'307,i citirig as an· éx
ample Chicago's r957 Calumet Park riots, mentioned in para:'30, ~upra,.· ; ,(;..·-.,456 SOUTH WEST AFRICA
of complete amalgamation and leaves vestiges of old cultural and
racial distinctions, often crystallized into class and caste systems 1."
"\Vhi!e thus complete assimilation may be considered, as it is by
some, as the ultimate answer to all ethnie problems either in a re
stricted area or globally, the history of such problems indicates that
this is not true ." (Italics added.)
More recently, A.]. Gregor bas said:
"\Ve can generalize (bearing in mind exceptions which can con
ceivably result from singular socio-political circumstances) that
where two peoples, marked by gross physical dissimilarities, make
contact, the attempt at assimilation is invariably met with tensions and
disharmonies which it is almost beyond tlie power of mm to resolve1."
(ltalics added.)
D. Purves states:
"There is ample evidence to indicate that social instability is inevi
table whene:verattempts are made to create mufti-racial communities,
and a number of apparently insoluble situations already exist in
Africa 4 and the United States. In view of the instinctive ·character
of the antagonisms inherent in the multi-racial community, there
appcar to be good grounds for preventing the establishment of
communities of this kind in the future and for attempting to solve
the problem of the existing communities by resolving them into
separate societies on a racial basis. However harsh the application
of such policies may appear to be, they do provide the possibility
of social harmony and friendly competition between national groups
in the future-the alternatives are permanent instability and exploi
tation of one racial group by the other indefinilely prolonged 5." (Italics
added.)
Prof. Max Lamberty 6 :
"The 'integration' can be a greater evil than the 'segregation'
when it is not accepted by all parties concerned, when it must be
7
achieved not by free will but by coercion ." (Translation.)
41. A number of authorities and commentators dealing specifically
with the racial situation in the United States in recent years have been
outspoken in their criticism of enforced integration as a method of re
solving racial discrimination in that country. They consider that the
Ferlerai Government's policy instead of substantially changing basic
attitudes of racial prejudice and racial discrimination, has engem;lered a
hardening and intensification of such attitudes, leading often to increased
1 Walter, P. A. F. (Jr.), Rat;e and Cultu,e Relalions {1952),p. 55.
2 Ibid., p406.
lGregor, A. J...On the Nature of Prejudice", Eugenics Review. Vol. LII (Apr.
196o-Jan. 1961), pp. 217-224 at p.219.
• Vide Chap. III, supra. .
' Purves, D., "The Evolutiona.ry Basis of Race Consciousness", fl,fankind
QwarlerJy (July 196o), Vol. I, No, 1, pp. 51-54 at p. 54·
6 Doctor in Social Sciences; Professor at th~ Hoger Instituut voor Overzeese
Gebieden, Antwerp; Professor at the Koninklijke Militaire Schqol,. Brussels.
1 Lamberty, M., ''Wat betekent pluralisme?" De Vlaamse Gids, No. 12 (Dec.
1963), pp. 798-812 at p. 811. · REJOI~DER OF SOUTH AFRlCA 457
racial friction and violence 1. As to the former aspect of the American
situation, Professor C. Vann Woodward has commented:
"It is true that the present Court has consistently held against
segregation. But Americans have developed over the years a curious
usage of the law as an appeasement of moralists and reformers. Given
sufficient pressure for a law that embodies reputable and popular
moral values, the electorate will go to great lengths to gratify the
reformers. They will even go so far as to unlimber the cumbersome
machinery of Constitutional amendment. But having done this
much, they are inclined to regard it as rather tedious of the reformers
to insist upon literai enforcement. Under thesc circumstances the
new law is likely to become the subfect of pious reference, more
honored in the breachthan in the observance, a proof of excellent in
tentions rather than the means of fulfilling them 2." (Italics added.}
42. The resistance of .the White population to the enforcement of
residential integration in practice affords cogent support for the above
comment. One author bas stated:
"The experience of Chicago shows that displacement of whites
by Negroes can be reversed in its early stages. However, after Negro
population reaches a certain level, both the flight of white residents
and the influx of colored gain momentum and becomeirreversible ...
Sociologists write about the 'tip point' in the racially mixed neigh
borhood. Essentially, this is the point of no return. It defines that
degree of Negro concentration which makes the process of white
displacement irreversible. This tip point generally is in the range
of 10% to 20% Negro 3." (Italics added.)
Another author recently reported that irrespective of verbal assurances
of tolerance,
"... the mere presence of a Negro in a white residential neighbor
hood unleashes fears and hatreds of the most elemental sort, and leads
almost without exception to an exodus of the white residents -1·•.
(ltalics added.)
43. The effect of current government policy in the United States on
racial attitudes generally is described with striking impact in the follow
ing recent opinion:
"... the North is finally beginning to face the reality of race. In
the process, it is discovering animosities and prejudices that had been
hidden in the recesses of the soul . .. revealing a degree of anti-Negro
prefudice and hatred that surprised even the most sophisticated obser
vers. After interviewing whites from coast to coast, for example, the.
journalist Steward Alsop and the public opinion expert Oliver Quay le
reported in the Saturday Evening Post that 'The white North is no
more ready to accept genuine integration and real racial equality than
1 Consistently with Respondent's general approach as outlined a.bave (paras. 4
and 12), Respondent must not be taken ta subscribe in every respect to the views of
ail the authorsquoted in the text. As will be noticed, some hold more extremistic
views, while others are more restrainedin their comments. The abject of Respond
ent's quotations is ta show that varying shades and degrees of opinion do exist.
z Vann \Voodward, C., The Strange Career of Jim Crow ( 1957), pp. 171-172.
3 Weyl, N., The Negro fo A merican Ciuilization(1960), pp. 307 and 308.
• Silbennan, C. E., Crisisin Black and White (1964), p. 43.458 SOUTH WEST AFRlCA
the deep South'. So strong and widespread was the prejudice they
found that Alsop and Quayle concluded that for the moment, at
least 'there is simply no way to reconcile the aspirations of the new
generation of Negroes for real integration and true equality with the
resistance to those aspirations of the majority of whites'. Pollster Louis
Harris, who sent interviewers ail over the country for Newsweek,
reached much the same conclusion. He found that 'Whites, North
and South, do not want the Negro living next door'; that 'Most
whites fear and shun social contact with Negroes'; and that 'the
white image of the Negro is ... an implausible and contradictory
caricature ... cunning, lewd, flashy, strong, fearless, immoral and
vicious' 1." (Italks added.)
44. White resistance to the enforcement of anti-discriminatory legis
lation in the United States, with its attendant harmful consequences, is
reflected in the following comment on the compulsory desegregation of
schools in the South:
"After five ycars of practically no progress in mixing the schools
of the Deep South, the Eisenhower Administration and the mode
rates of both parties realized the futility of using military force to
change the mind and mores of the South. Both sides searched for face
saving formulas and compromises that might calm the storms of race
and sectional hate. Five years after the Supreme Court decision the
theory that the South could be dragged, cajoled and coerced into
school desegregation seemed dubious in the extreme. The deep
seated nature of Southern opposition to mixed schools was finally be
coming apparent to the North. After Little Rock, it secmed clear
that the use of the naked power of the Federal Government to enforce
desegregation, whether in the form of military occupation or whole
sale contempt proceedings in Federal courts, would merety make the
white South more sullen, more rebeltious, mate obstinate and less wil
ling ta compromise 2." (Italics added.)
"What appears as softening of resistance to desegregation in the
South may merely be expediency. It reflects a recognition by the
forces of resistance that it is easier and cheaper to comply symboli
cally by accepting a few 'exceptional' Negroes in White institutions
t~an it is to resist symbolically by fighting federal pressure to the
bitter end 3."
45. Sorne observers have even condemned the Federal Government's
policy as having done more harm than good to racial harmony in the
United States. Thus, Carleton Putnam reflects on the school desegrega
tion decision as follows:
"Indeed, there now seems little doubt that the court's recent
decision has set back the cause of the Negro in the South by a generation.
He may force his way into white schools, but he will not force his
way into white hearts nor earn the respect he seeks. What evolution
was slowly and wisely achieving, revolution has now arrested, and the
trail of bitterness will lead far 4.''
1 Silberman, op.cit., p8.
2 \Vey!, N., The Negro in American Civilization (r96o), pp. 289 and 290.
3 Killian, L. and Grigg, C.Racial Crisis in America:Leadership in Contlict (1964),
p. II4.
• Putnam, C.,Race and Reason: A Yankee View (r961), p. 9. REJOl~DER OF SOUTH AFRICA 459
l,fore recently, in 1964, shortly after the waves of violence which followed
upon the passage of the 1964 Civil Rights Act, a number of United
States' Senators and Representatives were interviewed on the situation 1.
Sorne supported the Government's legislative programme; others ex
pressed the opinion that it was not the complete answer to the racial
problem; and still others condenmed it: Of the latter group, Respondent
quotes the following: ·
Senator Richard B. Russell, Georgia:
"The New York race riots prove the fallacy of a principal argu
ment that was advanced for passage of the so-called Civil Rights
bill. During the long weeks that the bill was before the Senate, the
country was assured over and over again by advocates of the
measure that its passage was necessary to prevent violence and de
monstrations.
We now see the wanton destruction of life, limb and property in
Harlem and Rochester. The fact that the racial outbreaks occurred
in the State having the greatest array of so-called civil-rights laws
and the most ardent political champions of the Negro is telling evi
dence that legistation of this type is more tikely to harm than to help
the cause of peace, order and good race relations 2." (ltalics added.)
Senator ] ohn L. l'ifcClellan, Arkansas:
"The Civil Rights law as enacted cannot at ail be the complete
answer to the civil-rights issue in this country. lt is calculated to
provoke,and is provoking, an attitude that iscontraryto the conceptof
bringing about an understanding and harmony between the races.
You can't, just by legislation, change the nature of a people or of
3
a race from their present status to one far advanced ." (Italics
added.}
Senator Herman E. Talmadge, Georgia (in answer to the question: "Is
Civil Rights the answer to the race problem?"):
"Certainly not, if by 'civilrights' you mean force legislation telling
people how they should conduct their private affairs and private
business. If legislation of this type were the answer to this problem, cer
tainly States which have an abundance of it on their law books would
not behaving the trouble they are now having. The real civil rights of all
Americans, of course, are embodied in the Bill of Rights, the Thir
teenth and Fourteenth Amendments to the Constitution. They are
now and have always been enforceable in ail the courts throughout
the land, both federal and State.
The race problern, wbich really concerns man's relation to his
·fellow man, will be resolved only by a transformation of mental
attitudes and self-improvement on the part of ail people, white and
Negro. For instance, job opportunities, for which we now have so
much demand, corne with skills and talents which can be attained
only by hard work and self-improvement ... 4" (ltalics added.)
Senator Frank Carlson, Kansas (Question: "What is your opinion now
of Civil Rights as the answer to the race problem?"):
l u.s. News and World Report,IO Aug. 1964, pp. 26-32.
1 Ibid.p. 27.
3 Ibid., p. 28.
-4 Ibid., p29. SOUTH WEST AFRICA
''l've felt all along that legislation would not resolve this problem,
which, after all, gets to be a matter of the heart and mind. Solution
is going to be a long process 1. "
Senator Bourke B. Hickenlooper, Iowa (answering the question, "...
would you say that Civil Rights is the answer to the race problem
now?"):
"No, I wouldn't. Certain civiJ.rights guarantees are essential to
equality of treatment. But it's been manifest that the protection of
guarantee of rights is not the answer 1."
Representative Horace R. Kornegay, North Carolina (Question: "Do
Civil Ri!?'htsLaws provide the answer to race problems-North and
South?"): ·
"It would certainly appear to me that they do not. The trouble
that has corne to the Northern cities in Negro communities is indi
cative of the fact that racial peace cannot be brought about by liti
gation 2." (Italics added.)
46. Finally, Respondent quotes the following comment on the results
of the United States Civil Rights policy, contained in the recent con
clusion of two major research specialists:
"The danger that America faces is that the desegregation decision
of 1954 may prove to be not the beginning of the resolution of 'a
struggle in the hearts and rninds of white Americans' but the opening
battle of a race war ...
The prospect is dismal; the need for a solution to the crisis in
race relations is desperate 3."
J. Conclusion
47. It is not for Respondent to takc part in the controversy as to
whether the policy at present being pursued in the United States should
be persisted with, or whether the approach or techniques involved therein
should be altered, or whether it will eventually bring success or not. For
the purposes of this case, the important points are that a serious contro
versy does exist arnong students of the problem; that there has as yet
been no proof that the policy will succeed and that if it does, it will clear
ly take a long time and the cost involved therein will be enormous, not
only in rnatcrial terms but also in respect of moral values-and all this in
circumstances so much more favourable for integration than in South
West Africa. How, then, can it be said that, in not following the United
States precept in South West Africa, and in taking account of groupreac
tions in its endeavour to establish harmonious relations, the soundness of
Respondent's approach "is refuted by the ovenvhelming weight of scien
tificauthority" •?
48. If the policy suggested by Applicants produces resistance, tension
· 1 U.S. News and Report, op;cit:.p. 30.
2 Ibid., p.32. .
3 Killian,L. and Grigg, C., Racial Crisis in Ameriw: Leadership in Conflict
(1964), pp. 128and 130.·Vide also the comment of the Commission on Civil Rights in
its 1963 Report, quoted in para. 24, supra. '
·~~~. . . REJOINDER OF SOUTH AFRICA
and violence in the favourable circumstances existing in the United
States, the threat of utter social disorganization in South West Africa as
the result of such a policy is surely self-evident. lt appears to Respondent
that it is difficult to conceive of a policy more calculated and more apt to
endanger the present well-bcing and social progress of the inhabitants of
South West Africa than the one advocated by Applicants. Only a due re
gard for the disposition to group separation has converted lite in the
Tcrritory from one of continuai friction and bloodshed, as in compara
tively recent historical times, to one of harmonious development towards
peaceful and friendly co-existence. Respondent considers that to avoid
the threat of grievous social disorder and to advance the cause of har
monious relations, the responsible administration of the Territory de
mands that the existence of real, substantial and enduring differences
between the population groups, and the influence those differences
exercise on inter-group relations, should be duly recognized in the formu
lation of a policy best calculated to promote to the utmost the well-being
and progress of ail the inhabitants. · CHAPTER XII
CONCLUSIONTO SECTIONE
I. In the preceding chapters of this section Respondent dealt with the
material adduce"d by Applicants in their attempt at establishing, as a
fact, that the princij>les of Respondent's policies by themselves fail to
"promote to the utmost the material and moral w1ll-being and social
progress of the inhabitants of the territory" •
The legal basis ofthis factualissue isan essentially straightforward one,
viz., the question whether Respondent, in deciding upon and progres
sively putting into effect its impugned policy of separate development, is
bona fidepursuing the prescribed objective, cited above, relative to allthe
inhabitants of South West Africa 2•In dealing with their charge of mata
fi.des Applicants have, however, unnecessarily complicated the matter
by their pwported reliance upon unformulated current "norms and
standards", said to be "universally accepted". On analysis this appeared
to be merely a particular method of attempting to dischar~e the onus of
establishing the bad faith alleged by them-although 4pplicants did not
make a real and consistent effort to treat the material offered by them in
the light ofsuch onus. · ·
By reason of their purported reliance on "norms and standards", as
well as by the very nature of the present dispute, Applicants ranged far
and wide in their search for material which could be usefully empJoyed
in these proceedings. As the previous chapters will have demonstrated,
Respondent did not hesitate to follow Applicants onto terrains with
which, in the ordinary course of ·events, the legal process bas but little
contact.
2. It is submitted that the net effect of the material thus gathered
from diverse sources and placed before the Court, was to show the unten
ability of Applicants' case: the exposition of Respondent's policies in the
above chapters, relative to erroneous assertions, distortions, misconcep
tions, points of criticism, weighing of advantages and disadvantages, and
the like, served to confinn Respondent's complete good faith in regard to
its administration of South West Africa; the account of events and exhib
ited tendencies in a nwnber of other countries and territories over
whelmingly established the defects of, and the dangers of utter disaster
inherent in, the only real alternative to separate development, viz.,
attern~ted integration; and the discussion of the views of scientists,
politic1ans and others showed the existence of a substantial body of
opinion which accords with the underlying premises of Respondent's
policies. In the result Respondent contends that Applicants have failed
entirely to establish that, in deciding upon and pursuin~ the broad
approach, principles, objectives and methods involved in 1ts policy of
separate development-which is the essence of the matter-Respondent
was in any way imbued with bad faith,as alleged or at ail.
1 Art. z,para. 2,of the Mandate for German South-,Vest Africa.
2 Vide Chap. I, para.1, supra. REJOINDER OF SOUTH AFRICA
3. In the present section Respondent dealt with the general principles
of its policies.The ensuing sections will be devoted to more detailed
aspects of the application thereof in specific spheres, commencing with
that of Government and Citizenship. Annex to Section E
HISTORICAL BACKGROUND TO RESPONDENT S
Pouey OF DIFFERENTIAUON IN SOUTH AFRICA
A. INTRODUCTORY
I. It will be recalled 1 that in Part 4 of Chapter IV.B.3.c. of the Reply
Applicants, under the heading "Relevant Historical Resumé" 2,purport
toshow:
(a) that South Africa was already effectively occupied by non-Whîtes
before Europeans began to settle in the country;
(b) that the Europeans proceeded to take occupation of non-White
land;
(c) that the Voortrekkers, bcing "an exceptionally colour-conscious
peoplf', established "a caste system" 3, which was maintained at
and after the unification of South Africa; and
(d) that as a result of the influx through the years of Natives into
White areas, a multi-racial society in South Africa, as in South
West Africa, is a fact.
Respondent has already dealt with the last aspect 4, and it therefore
remains to consider Applicants' effort "to set straight the historie
5
record" regarding the first three aspects. As bas been pointed out 1.
references to historical events in South Africa also occur in Annex 3 to
the Reply, and in the succeeding paragraphs Respondent will, where
necessary, also refer to the relevant portions of the said Annex.
B. THE INHABITANTS OF SOUTH AFRICA CIRCA 1652
2. With reference to the first European settlement in South Africa,
Applicants state that-
"[c]ontrary to Respondent's account that before the whites began·
to settle in the seventeenth century Southern Africa was 'nearly
empty', the eastern half of the country was effectively occupied by
Bantu-speaking farming tribes, and the western half was occupied
more thinly, but effectively, in relation to their economy, by hunting
and herding peoples whom the whites were to call Eushmen and
Hottentots 2".
In support of the latter portion of this staternent Applicants cite
6 7
Schapera and Marais , neither of whom, however, suggcsts that the
western half of South Africa was ever occupied effectively by the Bush
men or the Hottentots.
1 Vide sec. E, Chap. V, para. 15,supra.
• IV,p. 459.
' Ibid., p. 46o.
4 Vide sec. E, Chap. V. paras. 16-35,supra.
5 IV,p. 458.
6 Schapera, 1.,The Khoisan Peophs of South Ajrica (1960).
7 Marais, J.S., Tlle Cape Coloured People I652-I937 (1939}. REJOINDER OF SOUTH AFRICA
3. It is generally accepted that the Bushmen were the original in
1
habitants of South Africa-at least in modern times • At one stage or
another they must have roamed in thinly scattered clans over large
portions of the areas at present comprising the Cape Province, Natal
and the Orange Free State. With the advent of the Hottentots and the
Bantu, however, the Bushmen were to a large extent extenninated or
driven to the mountatns of the interior 2• Schapera, who is cited by
Applicants, states in this regard:
"[B]y the time when European contact with South Africa was first
established, the Bushmen in the Cape had already been reduced to
living in isolated groups scattcred about among the more numerous
Hottentots ."
The Hottentots migrated southwards along the west coast of Africa,
and, having reached the Cape peninsula, proceeded along the east coast
of the Cape. They never ventured into the vast interior of the Cape, and
when the first Dutch settlement was established at the Cape in 1652 they
were to be found only in the coastal areas between the sea and the moun
tains to the east, and especially to the west, of the peninsula 4.Even these
areas were by no means densely populated, and vast open spaces were
found betwccn the various tribes 5• Theal, a recognized historian,
estimates the total Hottentot population of the Cape Province (and
consequently of South Africa) circa 1650 at 50,000 at the most 6,_while
Stow is of thç opinion that "... the total Hottentot race did not e~ceed
thirty-five or forty thousand people" 7.
8
It is, for various reasons ,impossible to estima te the number of Bush
men in southem Africa round about 1652. Historians secm to agree,
however, that their number was less than that of the Hottentots. There
can consequcntly be no question, even if due allowance is made for
their nomadic habits, of the Bushmen and the· Hottentots having
cffectively occupied the western half of South Africa at the time of the
arrivai of the Dutch settlers.
4. Applicants relv on an article by Monica Wilson 9 in support of their
statement that the Éantu occupied the eastern half of South Africa before
the Europeans began to settle at the Cape. In the said article the authoress
examined the early history of the Transkei and Ciskei, and came to the
conclusion that circa 1686 the Bantu occupied the coastal belt and the
10
areas adjacent to this belt north of the Buffalo River (East London) •
She certainly does not suggest that the interior of either the Eastern
1 Vide, e.g., Stow, G. \\'.,The Native Races of South Africa (19ro), pp. 5-6.
2 Marais, op. tit.(1957), p. 5; Schapera, op. cit., p30 and The:i.l, G. M., Ethna-
graphy and Condition of South Africa be/ore A .D. I505 (1922), p.47.
3
Schapera, op. cit.pp. 40-41.
• Stow, op. cit.,p. 236 and Theal, op. cit., pp.88-89.
s Stow, op. cit.,p. 247; Le Roux, H. J.,Die Toestand, Verspreiding en Vervrokke
ling van die Hottenlotslamme in Suid-Afrika, r65z-r7r3 (Unpublished Thesis!
University of Stellenbosch, 1945), p. 2.
6 Thea!, G. 111.,History and Elhnography of Afrîca South of the·7,ambesi, Vol. II
(1909), pp. r26-r27.
7 Stow, op. cil.,p. z.p.
8 Vide Schapera, op. cit.,pp. 38-39.
9 ,vi]son, M., "The Early History of the Transkei and Ciskei", African Studies,
Vol. 18, No. 4 (1959), pp. 167·r79.
JO Ibid.,p. I78. SOUTH WEST AFRICA
Cape or Natal was inhabited. In fact, Theal, one of the sources cited by
ber, narrates that a Portuguese ship-wreck party found the plateau in the
interior of the eastem Cape completely uninhabited towards the end of
the sixteenth century 1•
Respondent does not dispute that Bantu were living in the coastal
areas of the Eastern Cape and Natal when Van Riebeeck (the leader
of the first Dutch settlement) arrived at the Cape. These areas, however,
by no means comprised "the eastem half" of South Africa, as will
be apparent from the map attached hereto i_
It is impossible to establish with any degree of certainty to what extent
Bantu tribes had migrated into the north-central parts of South Africa by
1652. It seen1shighly improbable, however, that such tribes had migrated
further south than the upper waters of the Vaal River 3• Although no
exact calculation is possible, it would appear that ail the areas inhabited
by the varions Bantu tribes comprised approximately one-eighth of the
total area of South Ahica (including the protectorates).
5. Immediately on their arrivai the settlers came into contact with
the Hottentots. It is true, as stated by Applicants •, that the Dutch
authorities at the Cape did try tokeep the area of White settlement apart
from the non-White races, but it is an unfounded generalization that the
authorities failed-
"... because the whitt:lsettlers themselves took occupation of land
previously used by Bushmen, Hottentots and Africans, and because
the white settlers themselves became dependent on the use of
Bushmen, Hottentot and African labour, as well as the labour of
5
importedslaves ."
In a number of instructions and proclamations issued in the first decade
after the settlement, the settlers were instructed to treat the Hottentots
benevolently and not to punish or even pursue them in cases of theft 6•
Though it cannot be said that these instructions were always implicitly
obeyed, the primary and real cause of two so-called wars against the
Hottentots in later years, which did not involve much more than skir
rnishing, was the persistent raids of the Hottentots on the possessions,
especially cattle, of the settlers, one of which in I653 culminated in the
7
murder of a herdsboy • These raids were apparently so exasperating to
the authorities that they even conceived the novel, if completely imprac
ticable, idea of severing the area of White settlement {the Cape peninsula)
from the Hottentots bv means of a canal 8.
As a result of the above '\vars", the Hottentots retreated from the
areas immediately adjoining the peninsula. At the time, however, when
the settlers began to move away from the vicinity of the Cape, the
Hottentots were no longer in effective occupation of the areas formerly
1 Theal, G. M., HistOYy of A/rica South of the Zambesi. Vol. I (Vol. II of the Series},
(1927},pp. 327-328.
2 Not reproduced.
3 Vide Theal. G. M.• The Beginning of South African History (1902),p. 30.
• IV, p.-459.
' Ibid.Itshould be observed that Applicants refer to no sources whatsoever.
6 Vide, e.g., Original Placcaatbook, I652-r686. 14 Oct. 1652, pp. 31-32, Cape
Archives Depot: C.680 and Walk,ir, E. A.• A History of Southern Africa (1957),
p. 36.
7 Thea!, G. M., History of South Ajrica, Vol. I (1897). p. 37.
• Ibid., p68. REJOlNDER OF SOUTH AFRICA
inhabited by them. Severa! causes contributed to this, the most important
being the following :
(a) Although the Hottentots were initially loath to part with their
cattle.and sheep, they eventually e..xchangedsubstantial portions of
1
their flocks for liquor, tobacco, knives and other articles •Then, in
1661 2,in 1693 3, and again in 1714 4,diseases killed off vast numbers
of their fl.ocks. The upshot was that the Hottentots became so
impoverished that somc were compelled to enter the service of the
settlers. This, in turn, Jed to the destruction of tribal Jife.
·(b) The old feud between the Hottentots and the Bushmen never
ceased, and in the process thousands were killed on both sides.
So, for instance, in 1689 three Hottentot kraals and in 1692 the
whole Kouchuma Hottentot tribe were exterminated 5•
(c) Diseases introduced to the Cape by the settlers killed off many
thousands of Hottentots. In 1661 5,and again in 1663 6, infectious
diseases caused the death of many Saldanhars and Kaapmans.
In 1666 the whole Cochoqua tribe very nearly died out 7 •Thereafter
the Hottentots were plagued just about every year with some
infectious disease or other 8• The greatest disaster occurred in 1713
when an extremely serious epidemic of smallpox led to the complete
extermination of many tribes 9. When the Hottentots realized the
seriousness of the disease, many fled over the mountains where
they met their death at the hands of local tribes who feared that the
refugees carried the disease with them 10• This rather vigorous policy
was of no avail, however, and the disease spread ever further away
from the western Cape 11•The disastrous consequences of the disease,
which reappeared in 1755 12 and in 1767 13, are summarized as follows
byTheal:
"The very namcs of the best-known tribes were blotted out by
the fell disease. They no longer appear in the records as organised
communities, but as the broken-spirited remnant of a race, ail whose
feelings of nationality and clanship had been crushed out by a great
calamity t4_"
1 Walker, E. A., op. ât., p. 41.
i Original Placcaatbook, 24 Nov. 166!, p. 174, Cape Archives Depot: C.680.
3 Ibid., 7 Sep. 1693, p. 182, Cape Archives Depot: C.681.
• Theal, G. M., HistOt"yand Ethnography of Afri,a South of the Zambesi, Vol. II
(1909), p. 446.
5 Vide Le Roux, B. J.,Die Toestand, Versf>reiding en Verbrokkeling van die Hot
tentotstamme in Suid-Afrika, r652-r7r3 (Unpublisherl Thesis, University of Stellen
bosch, 1945), pp. 224-225.
6
7 Day journal, 29 Nov. 1663, p. 494, Cape Archives Depot: V.C.4.
Thea!, G. M., History and Ethnography of Africa South of the Zambesi, Vol. 11
(Vol. III of the Serîes) (r922), p. 156.
8 Le Roux, H. J.,Die Toestand, Verspreiding en Ver/>rokkelingvan die Hotlentot
slamme in Suid-Afrika, r652-r713 (Unpublished Thesis, University of Stellenbosch,
1945), p.';!.
9 Theal, G. M., History and Ethnography of Africa South of the Zambesi, Vol. 11
(1009), pp. 431-433.
Day Journal, 19 May 1713, p. 129, Cape Archives Depot: V.C.20.
11 Ibid., r 1 June 1713, p. 14.5, Cape Archives Depot: V.C.20.
n ibid., JI Oct. 175.5, pp. 208-209, Cape Archives Depot: C.626.
H ibid., 5 Dec. 1767, pp. 638-639 and 657, Cape Archives Depot: C.635.
14 Thea!, G. M., History aiid Ethaography of Ajrica South of the Zambesi, Vol. Il
(1909), p. 433. SOUTH WEST AFRICA
As a result of the above. factors, and also of inter~marriage
between Hottentots on the one hand and Bantu and slaves on the
other hand, the Hottentot race has virtually ceased to exist. I t is
extremely doubtful whether a single pure bloodecl Cape Hottentot
is at present still to be founcl in South Africa 1.
6. As already statecl 2, the Bushmen were thinly scattered over parts
of the present Cape Province when Van Rîebeeck landecl at the Cape. The
Bushmen were nomads in the truest sense of the word. They built no huts
or homes of any description, and slept either in caves or in the open
veld 3•
Eric Walker, emeritus Professor of Imperia! and Naval History in the
University of Cambridge, said of the Bushmen: ·
"[TJhey were relies of the Stone Age ... Unprepossessing in
appearance the Bushmen were, and every man's hand was against
them, for they were hunters, and between Jacob, the tender of
flocks and herds, and Esau, the wanderer, there can be no peétce 4."
Theal described the Bushmen étS "... vinclictive, passionatc and cruel in
the extreme ... they never spared an enemy who was in their power ... "5.
7. By virtue of their habits and disposition the Bushmen were the
natural enemies of ail other races. Instances of attacks on Bushmen by
Hottentots, Griquas 6 and Bantu in which no mercy was shown to those
captured, abound in historical records 7•As early as 1653 it was recorded
8
tha t the Hottentots slewail captured Bushmen and threw them to the dogs •
The Bushmen regarded the cattle of the settlers as lethargic prey, and
cluring the eighteenth century a number of punitive expeditions were sent
out against the little hunters. Towards the close of the century, in the
eastern Cape Province, instances occurred where more 13ushmcn were
killed by such expeditions than was necessary for the recapture of stolen
cattle. This gave rise to accusations that the Europeans drove the
Bushmen "out of thcir own country" 9 .Such accusations were, however,
effectively refuted by H. Lichtenstein, a Gennan who travelled exten
sively in the present Cape Province at the beginning of the nineteenth
century. Referring to the clashes bctween the Europeans and Bushmen
in the central and eastern Cape Province, he said:
"The Bosjesmans [Bushmen] did not originally inhabit the
countries whence they now carry on their most injurious warfare
against the colonists; it cannot therefore be urged, that the savages
are but revenging themsclves for being dispossessed of their country.
At the time when the Europeans settled in the Roggeveld, in the
Snow Mountains, in Agterbruintjeshoogte, and other parts, there
were no Bosjesmans therc; it was the wealth of the colonists which
1 Schapera,
I., The Khoisan Peoples of South Africa (1960), p. 46.
2 Vide para. 3, supra.
3 Thea!, G. M., The Beginning of South African History (1902), p. 17.
• Walker, E. A., A History of Southern Ajrica (195ï), p. 33.
' Thea!, G. M., The Beginning of South African History (1902), pp. r4-15.
6 Half-caste Hottentots.
1 Vide, e.g., Resolutions,l IOct. 1712, p.271, Cape Archives Depot: C.S; ilfemor
ials and Reports, 7 May 1776, Cape Archives Depot: C.310 and Letters Receiued,
24 Mar. 1830, Cape Archives Depot: C.0.373.
9
Day journal, 9 Jan. 1653, pp. 36:z-363, Cape Archives Depot: V.C.1.
9 Barrnw, J., Travels into the lnterior oj Sou/hem Africa, Vol. I (1806), p. 242. REJOINOER OF SOUTH AFRIC/t..
first attracted them thither, from their own proper districts on the
banks of the Great River 1."
In 1809 Colonel Collins, an official of the British Government, came
to the same conclusion. He wrote:
"The supposition that the enmity of the Bosjesmen was originally
occasioned by their resentment at being forced by the colonists to
quit the territory of their ancestors, seems unfounded, as it appears
that they have always resided in the country they now inhabit since
the Cape has been possessed by Europeans i."
The traditional homeland of the Bushmen, according to Lichtenstein,
was "the district which lies bctween the Orange River, and the moun
tains" 3•
In. this area there was never any conflict between the Europeans and
the Bushmen. In fa.et, when the former began to settle thcre the Bush
men had already been virtually driven out to South West Africa by the
Hottentots 4.
8. It is clear. therefore, that when the settlers began to move away
from the vicinity of the Cape peninsula, the whole area comprising the
present Cape Province, save the most eastern portion occupied by the
Bantu, was virtual\y uninhabited. There can consequently be no question
of the settlers having robbed the Bushmen and the Hottentots of their
land.
C. THE FIRST CONTACT WITH THE BANTU
9. During the seventeenth century no contact was made between the
settlers and the Bantu. In 1738 White hunters found no Bantu west of the
Keiskamma River 5.and an expedition sent out by the Cape government
in 1752 to explore the eastern Cape, found the position still to be the
same 6•
· After 1752 members of Xhosa tribes at times crossed the Keiskamma
River as a rcsult of disturbances in the areas occupied by such tribes. As
soon as peace was re-established, however, they returncd to the eastern
side of the river. Even as late as 1803 Governor Janssens did not find a
single Bantu between the Fish and Keiskamma Rivers 7•
As a result of the eastern movement of the settlers, the authorities at
the Cape entered into an agreement with Xhosa chiefs in terms of which
1 Lichtenstein, H., Travels in Southern A frica, translation from the original
German by Anne Plumptre, Vol. II (1930), p. 64.
2 Collins, Col., "Journal of a Tour to the Xorth Eastern Boundary, the Orange
River, and the Storm Mountains". The Record: or A Series of Official Papers
Relative to the Condition and Treatment of the Xative Tribes of South Africa, Part
V, Xo. 1 (1808-1819), compiled, translated and edited by Moodie, D. (1960), p. 34.
3 Lichtenstein, H. Travels in Southern Africa, translation from the original
German by Anne Plumptre, Vol. Il (1930), p. 242.
• Van der l\lcrwe, P.J., Die Noordwaarlse Beweging van die Boere voor die Grool
Trek (I770-r842 ), p. 140.
5 Collins, Col. "Journal of a Tour to the North Eastern l:loundary,the Orange
River, and the Storm Mountains''. The Record: or A Series of Official Papers Relative
to the Conrlition and Treatment of the Native Tribes of South Africa, Part V, No. 1
(1808-1819), compiled. translated and edited by Moodic, D. (19(>0)p. 9.
6 Thea!, G. ;\I.,Belangrijke Historische Dokiimenten, Vol. Il (1896) p.64.
1 Ibid., Vol. !Ir (1911), p. 249.47° SOUTH WEST AFRICA
the Fish River was proclaimed in 1778 as the boundary of the area under
their jurisdiction 1. The British Government later recognized this boun
dary, but the Xhosa continuously conducted raids2on the western side of
the river and a number of wars followed • At the end of the sixth war in
1836 the British Govemment proclaimed the Keiskamma River the boun
dary of the then Cape Colony, and in this way the traditional border
of the Ban tu arca was re-established 3.
10. In Annex 3 to the Reply it is stated that "(f]rom 1779, a series of
'Kaffir \Vars' began, as the Bantu and Europeans fought each other
for land"~. This statement constitutes an over-simplification of the
causes of the various wars which occurred during the period 1779-1878.
Although it is true that some frontiersmen may have coveted areas
occupied by the Bantu, the real cause of these wars was the continuous
disregard by the Xhosas of the boundaries agreed upon, from time to
time, as between their areas and the arcas of the \Vhite settlement. Not
only did the Xhosas cross these boundaries with impunity whenever they
sought further pastures for their herds, but over a period of a century
they indulged in the periodic raids, mention5d above, which involved
robbery and murder on a large scale •
Ir. In the said Annex 3 it is further alleged that-
"Great Britain, which established its rule over the country
[presumably the Cape Colony] in 1814, also pursued a systematic
poiicy of annexatîon and increased political authority over the
Bantu ... The Africans were thus progressively confined to limited
areas of land 6."
In the Counter-Memorial a brief description was given of the process by
which the Bantu areas in the eastem Cape were annexed to the Cape
Colony. It was also pointed out, however, that there was no intention of
depriving the Bantu of their land, and that the areas .concerned were
administered as Bantu dependencies rather than as integral portions
7
of the Cape Colony • The position has remained virtually unchanged,
1
2 Walker, E. A., A History of Southern Africa (1957), p. 98.
Vide, e.g., Theal, G. M., History of South Africa (1927), Vol. l (Vol. V of the
Series), p. 321, and i/Jid. (1926), Vol. II (Vol. VI of the Series), pp. 86-89.
1 Theal, G. M., History o/SouthAfrica, Vol. Il (Vol. VI of the Series) (1926):pr50.
• IV, p. 350. ln the said Annex 3 the United Nations Special Committec alleges
that "the Afrikaners called the Bantu people 'Kaffirs' (unbelievers)"-ibid., p. 350,
footnote 2, Thus the impression is created that the Afrikaners called the Bantu
people "Kaffirs" because they were "unbelievers". The true position, howcvcr, is
that the settlerstook over this name for the Xhosa (which was later also applied to
other Bantu tribes) from the Portuguese-who called the East Coast Bantu "caf
fres"-without being aware that it was not a tribal name but derived from the
Arabie word for infidel-vide Fowler. H. ,v. and Fowler, F. G. (Eds.), The Concise
Oxford Dictionary of Current English (1956), p. 648, s.v. "Kaffir". In fact, the term
was formerly used freely by English and other missionaries in South Africa without
any derogatory intent.
' Thea!, G. M., History of South Africa /rom r846 to r86o (r904), pp. 6-7 and
96-97; Thea!, G. M., History of South Africa, Vol. I (Vol. V of the Series) (1927), pp.
33r and 335-336; ibid., Vol. II (Vol. VI of the Series) (1926), pp. 90-9r and Thea\,
G. M., History and Ethnography of Africa South of the Zambesi, Vol. III (r9u),
pp. r92-r93 and 281; Theal, G. l\I., History of South Africa /rom r873 to 1874, Vol. I
(Vol. X of the Series), p. 52.
6 IV, p.350.
7 Vide III, pp. 234-235. REJOINDER OF SOUTH AFRICA 471
and these areas-the Ciskei and the Transkei-are still at present pre
dorninantly Bantu areas. It follows that as far as the Cape Province is
concerned, there is no substance in the allegation that the Europeans
took occupation of Bantu land.
12. As regards Applicants' allegation that the attempts of the author
ities to keep the area of \Vhite settlement apart faited because the settlers
"became dependent on the use of Bushmen, Hottentot and African
labour" 1,it should be observed that while Hottentots did enter the
employ of Europeans, ·very few Bushmen ever did. And up to the stage
when the great migration from the eastem Cape to the interior (the
Great Trek) took place between 1830 and 1840, hardly any Bantu were
employcd by Europ~ans.
D. THE GREAT TREK AND THE ESTABLISHMENT OF
THE REPUBLICS
13. Applicants allege that the Great Trek-
'1•..was in large measure an ideological protest against the attempts
which the colonial government had been making to apply the rule of
law to the entire colony and to abolish legal discrimination on racial
grounds 2."
It is perhaps not surprising that Applicants do not quote a single
authority in support of this allegation, which is devoid of all substance.
The Colonial Government took no steps, affecting the settlers in the
eastern Cape, "to abolish legal discrimination on racial grounds", and
leading historians are agreed that the main cause of the Great Trek was
the failure of the government to protect the settlers against the incessant
raids, accompanied by robbery and murder, carried on by Xhosa tribes
men on the western sicleof the Fish River. As Thea! puts it:
"Sorne years Iater [i.e., after the Great Trek] when, owing to the
internai weakness of the different governments established by the
emigrants, coupled with security against violence by blacks, it
became possible for runaway debtors and rogues of different descrip
tions to live and thrive upon the borders of their settlements, it was
frequently asserted by their enemies that the farmers left the colony
to frce themselves from the restraints of law. This charge was untrue.
The early emigrants constant/y maintained that they left the colonyta
free themselves not o/ law but of lawlessness. A few men of indifferent
character may have gone with the stream, but their boast as a body
was that they left in open day and after their intentions had been
publicly announced. That they should be foHowed by men whose
motives were different was quite natural, but they cannot in justice
be blamed for it 3." (Italics added.)
If any further refutation of Applicants' allegation is necessary, it
suffi.cesto quote from a despatch to the Secretary of State in London,
dated 29 July 1837, in which the English Governor of the Cape Colony,
Sir Benjamin D'Urban, attributed the Great Trek to the-
"... insecurity of life and property occasioned by the recent
1
2 IV, p. 459.
Ibid.,p.460.
) Thea!, G. M., Hislory of South Africa /rom I828 to 1846 (r90pp. 268-269. SOUTH WEST AFRICA
477
measures, inadequate compensation for the loss.of the slaves, and
. despair of obtaining recompense for .the ruinons loss_esby the
Kaffir invasion 1". · •
The author described the Trekkers as" ... a brave, patient, industrious,
orderly, and religious people, the cultivators, the defenders and the tax
contributors ofthe country'.' 1• . .. _ •. . .
14. The Trekkers joumeyed through the east-central part of the
present Cape Province to the Orange Free State, where some-remained
behind while others either went on to the Transvaal or branched off to
Nàtal. The areas in the said three provinces throùgh whièh they trekked
were for the most part completely uninhabited. This was due to what the
Bantu at present still call the M/ecane, the crushing 2 •Over a period of 15
years, from approximately 1820 to 1835, the most terrible bloodshed and
devastation imaginable took place in these areas. It started with the
succession of Shaka as king of the Zulus. His impis (regiments) drove
right through Natal and even crossed the Drakensberg mountains into
the Transvaal, leaving a trail of desolation behind them. Other tribes
were either exterminated or driven out of Natal. In the process.some
tribes, notably the Amangwane, the Hlubi and the Mantatis, poured
northward, smashing every tribe that lay in their path 2• According to
reliable calculations the Batlokwa Mantatis tribe alone completely·
exterminated between 28 and 30 other tribes in the north-western
Transvaal 3•
15. But even worse times were to corne. Mzilikazi, a lieutenant of
Shaka, fled with his men from his former master and established the
Matabele tribe in the Transvaal 2•Agar-Hamilton, the historian, remarks.
that-" ... missionary evidence shows him to have been the plague of all;.
natives and white men alike" 4• l\-Izilikazi first laid waste the eastern
Transvaal-
"... robbing those who gave him shelter, burning their homes,.
capturing their women, impressing their young men into his service,
leaving nought behind but a long black and bloody trail of con
flagration, massacre and desolation 5 ''.
Mzilikazi originally settled near the Olifants River and eventually made·
his home in the western Transvaal. For years on end his impis continued
their murderous raids on other tribes; e.g., the Mapoggers and the Pedi in
the north-eastern Transvaal 6, the Bakwena near the present Rusten
7 7
burg ,and the Bahurutsi and Barolong in the western Transvaal • The
1 Thea!, G. l\i., Histo,y of South Africa /rom r828 to r846 (1904), p. •70.
2 Walker, E. A., A Histo1'y of Southern A/rica (1957), p. 175.
3 Stow, G. W., Tke Native Races of South A/rica (19ro), pp. 46o-47r; Huyser, J.D.,
Die Naturelle-Politiek van die Suid-Afrikaanse Republiek, 1838-r877 (Unpublîshed
Thesis, University of Pretoria, 1936}, p. 23 and Voigt, J. C., Fifty years of tlie·
HistMy of the Republic in South Africa, Vol. I (1899), p. 192.
+ Agar-Hamilton, J. A. I., The Native Policy o/ the Voortrekkers (1928), p. 18.
5 Bryant, A. T., Olden Times in Zululand and Natal (1929), p. 423.
6 Van Rooyen, T. S.. "Die Verhouding tussen die Boere, Engelse en Naturelle in
die Geskiedenis van dîe Gos-Transvaal tot 1882", Archives Year Book /or South
African History, Vol. I (1951), p. 88.
7 Huyser, op. cit., p. 24. REJOINDER OF SOUTH AFRlCA 473
missionary, Robert Moffat, gave a vivid description of the slaughter and
horror involved in the attack on the Bakwena 1. ·
. Mzilikazi's impis also laid waste parts of the Orange Free State. But it
suffices to point out that, in the words of Agar-Hamilton, the end result
of their murderoûs raids was to have- ·
". . . destroyed man y tribes and depopulated large stretches of
country. W1de areas were left available for European settlement,
2
and few tribessurvived ."
16. Up to 1819 ·the present Orange Free Statè province was inhabited
only by a few scattered Bushmen clans 3. John Edwards, one of the very
first missionaries to visit the territory, described it as" ... a vast extent
of country, inhabited by nothing but Bushmen and wild animals" 4•
After 1819 a number of Bantu tribes fled to the Free State from Natal
and the Transvaal, only to becorne in due course victims of Mzilikazi's
marauding impis 5• During the period 1820-1830 a nurnber of half-bred
Hottentot tribes crossed the Vaal River frorn the northern Cape Colony
into the Free State and immediately began to exterminate the Bushmen 6•
At that stage White farmers liying in the northern Cape were already in
the habit of crossing annually into the southern Free Statc, in search of
pasture for their flocks 7,and sincc approximately 1825 a number of these
farmers settled permanently in this area 8•When the Griquas-members
of the Hottentot tribes referred to above-Iaid daim to portion of the
southern Free State in later vears, Sir Harrv Smith, the then Governor
of the Cape Colony, wrote to Lord Grey: •
"I must here assure your Lordship, that Captain Adam Kokand
his followers arc mere squatters, and have no more hereditary right
to the country in question than the Boers themselves, who have been
in the habit, for many years, for the sake of pasturage; of driving
their herds and flocks over the Orange River 9."
\Vhile not recognizing the daims of the Griquas, the Orange Free State
Republic in I86I bought the so-callcd Griqua area frorn their chief, Adam
10
Kok, for the sum of R8,ooo •
17. When the Trekkers arrived in the Free State, the position was that
the territory was uninhabited save for the farmers in the south, the above
mentioned Hottentots, thinlv scattered Bushmen and a few small Bantu
tribes. The latter were a Beéhuana tribc numbering about 800, which in
1833 migrated undcr the guidance of a French rnissionary, Pellissier, from
1 Quoted by Kotze, D. J.,"Die Eerste Amerikaanse Sende\inge onder die Mata-
bèles", Archives Year Book for South African History (1950), Vol. I, p. r99.
2 Agar-Hamilton, J. A. l., The Native Policy of /he Voortrekkers (1928). p. 4.
3 Malan, J. H., Die opkoms van 'n Republiek (1929), p. 9.
4 Edwards, J., Reminiscences of the Early Life and Missionary Labours (1886),
p. 79.
' Bryant, A. T., OJden Times in Zululaud and Natal (1929), pp. 142-r43.
6 Stow, G. \V., The Native Races of South Africa (1910), pp. 309-3ro.
7 Van der Merwe. P. J., Die Noordwaartse Beweging van die Boere voor die Groot
Trek (r770-1842) (1937), pp. 117-126.
8 Oberholzer, J. J.,Streekopname van die Suidoos-Vrystaat: Ecrste Voorlopige
verslag (Unpublished manuscript), p.,1r.
9 '"British Blue Book", Correspondence relative to assumption of Sovereignty over
the Tenitory between the T'aaiand Omnge fü1.wrs (1851), p. th.
10
Theal, G. l\l., History of South Africa, Vol. IV (Vol. VIII of the Series) (1919),
p. 197.474 SOUTH WEST AFRICA
the region of the Vaal River to Bethulie in the most southern part of the
Free State 1 ;the Barolong which in 1834 moved from the same region to
Thaba Nchu near Basutoland 2; the Bataung which the Trekker leader,
Potgieter, found along the Vet River, and a number of disintegrated
tribes in the north-western and mountainous north-eastem parts of the
territory. As will be shown hereinafter 3. the Trekkers recognized the
daims of these Bantu.
18. In order to appreciate the extent to which the interior of South
Africa was uninhabited at the time of the Great Trek, regard should be
had to the following:
(a) In 1836 and 1837 W. C. Harris, a big game hunter, explored the
central and northem Free State and later made the following
observations on his journeys:
"Although thinly populated by skulking broods of Bushmen and
by starving remuants of nomadic pastoral tribes, which have been
broken up by war and violence, this is a land in which no man
permanently dwells-neither is the soil any man's property, being
abandoned as water or fuel faits ... Amongst the savage nations
of South Africa, as elsewhere, a principle of extinction has indeed
for ages past been in active operation. Regions now silent and
deserted, once contained their busy throng, whose numbers and
strength have been gradually brought down by war and want.
Whole tribes have been rooted out from their hereditary homes,
and have either disappeared from the face of the earth, or, pursued
by the 'gaunt and bony arm' of famine, still wander with fluctuating
fortunes over these measureless tracts. For hundreds of miles,
therefore, the eye is not greeted by the smallest trace of human
industry, or by any vestige of human habitation-the wild and
interminable expanse ever presenting the ,same appearance-that
of one vast uninhabited solitude 4."
(b) The leader of one of the first treks, Louis Trichardt, reported in
his diary that he found the central and northern Free State un
inhabited, and that he found no Bantu whatsoever between the
Vaal and Olifants Rivers in the Transvaal 5. The only tribe of any
importance encounted by Trichardt, was the Venda who lived in
the Soutpansberg mountains in the most northem part of the
Transvaal 6•
(c) In 1836 a party of Trekkers under the leadership of Hendrik Pot
gieter left the Sand River in the Free State for the purpose of
inspecting the interior as far as Portu~uese East Africa. During the
first 18 days of their joumey (covermg a distance of more than
400 miles, or 640 kilometers) they met no one, and it was only after
1 Pcllissier, S. H., Jean Pierre Pellissier van Bethulie (1956), p. 162; Bethulie was
at the timeknown as Boesmanskool.
2 Thea!, G. M., Basutoland Records (1883), Vol. I, pp. and 4-6.
3 Vide para. 23, infra.
• Harris,W. C., The Wild Sports of Southern Africa (1963), pp. 255-256.
5 The distance between these two rivers covered by Trichardtwas approximately
250 miles (400 kilomcters).
6 Huyser, J. D.. Die Nalurelle-Politiekvan die Suid-Afrikaanse Republiek I838-
I877 (Unpublished Thesis, University of Pretoria, 1936), pp. 25•26. REJOINDER OF SOUTJ! AFRICA 475
passing Rhenoster Poort (west of Louis Trichardt) that they found
a few scattered inhabitants 1•
(d) In 1853 the British Government sent Sir George Clark to the Free
State to report on the proposed evacuation of the territory. ln a
letter to the Duke o[ Newcastle, written in his camp on the Vet
River on 3 December 1853, he said:
"Their [the Dutch boers] occupation of the central position of this
territory displaced no one, excepting the half-human Bushmen,
squattered here and there, roofless, amongst the rocks ."
(e) The historian, J. C. Voigt, who made a thorough study of, inter alia,
the settlement of the Trekkers in the Transvaal, states that even
inthe northem areas, short of the Soutpansberg mountains,
"... nowhere on the banks of the magnificent rivers were any
kraals or native towns to be seen. The sands showed not even a
single human footprint J."
(I) In 1880 the missionary, G. Blencowe, wrote:
"When the Boers entered the Transvaal, the Wakkerstroom,
the Heidelburg, the Pretoria and the Potchefstroom districts were
without any of the original inhabitants; while the southern half
of the Rustenburg, the southem two-thirds of the Middelburg, and
the like proportion of the Lydenburg districts were also unoccupied.
The Wakkerstroom and a portion o[ the Heidelburg districts do
not seem to have been occupied by Natives, except in some of the
sheltered valleys, but the other parts of the southem half of the
Transvaal were well, and in many cases densely peopled, as their
ruined kraals at present time show 4:'
In reaction to this statement another missionary, A. Merensky,
who came to the Transvaal in 1859 and who was known to be a
champion of the Bantu, declared:
"It is true that before the arrivai of the Boers the Natives of the
Transvaal were entirely routed and dispossessed of their respective
territories; but this was the case in the northern districts as well as
the Southern. Not only the Zulu's of Mosilikatse, but the Zu!u's
of Tshaka and Manekos, the Amaswazi and others, have taken part
in those raids by which the Natives of this country have been
reduced to the state of scattered and miserable fugitives, living in
caves, and on rocks, and in deserts. Even Sikukuni wandered in those
times with his father from one spot to the other on the northem
side of the Limpopo. In the meantime the Zulus live in the Bapedi
country ... Ifthe strongest of all Basuto tribes living in the northem
parts of the Transvaal were routed by the Zulus in such a way,
you may easily corne to the conclusion that not a single tribe of
our Natives actually remained in possession of its territory ...
But even in the year 1844, when the Boe1s anived to settle in the
districts of Waterbcrg, Lydenberg and Zoutpansberg, they found
1
2 Thea!, G. M., Histvry of South Africa from 1828 to I84(1904),p. 276.
Thea!, G. M., Basutoland Records, Vol. II (1883), p. 79.
J Voigt, J. C., Fifty years of the History o/ the Republic in South AfricVol. 1
(1899), p.205.
• "British Blue Books", Further Correspondence respecting the Afjairs of South
Africa, C.-2740, p. 5. SOUTH WEST AFRICA
only very small numbers of Natives anywherc, who were only too
glad to see them, and to be protected by them from the assegai of
the Zulu 1."
I9. The first Trekkers were fortunate to have escaped the attention
of 'Mzilikazi'simpis, but by October I836, the latter had already mas
sacred 46 people and had swept off with a hundred horses, nearly 5,000
head of cattle, and more than 50,000 sheep and goats 2• Thereafter
expeditions were sent out against Mzilikazi who, with his ro,ooo warriors
and their dependents, was then. living in the western Transvaal. In
November r837 the l\latabeles were decisively bcaten, and they then
fled to the present Rhodesia 3•
20. When the Trekkcrs arrived in Natal, there were only ro,ooo Bantu
4
living in Natal proper, mainly in the southern and mountainous arcas •
In February r838 the leader of the Trekkers, Piet Retief, obtained from
the Zulu chief, Dingaan, a "'-ritten cession of "the place called Port
Natal, together with all the land from the Tugela to the Umzimvubu
• .. 5 .
nver... .
· Before Retief and his party could return to their people, however,
they werc treacherously murdered in the kraal of Dingaan 6. Immediately
thereafter the Zulu impis set out against the encampments of the Trek
kers in the vicinity of the present town of \Veenen, and massacred a
numbcr of them 7• Nearly a year later, in December r838, the Trekkers
decisively beat Dingaan's impis at Blood River 8• But it was left to
.Mpande, a half-brother of Dingaan who had tumed against him, finally
to break the power of the tyrant in January 1840 9. Thereafter I\Ipande
was recognized as king of the Zulus by the govemment established by
the Trekkers, and the Zulus were left in undisturbed possession of
1
Zululand 0.
21. The above exposition shows that the Trekkers did not by force or
othcrwisc drive Ban~u away from land occupied by them-save for
l\1zilikaziand his Matabelcs who were intruders in the Transvaal 11• There
can be no doubt that the victory over the ;\fatabcles was warmly wel
comed by the remnants of the Bantu tribes which had suffered immensely
during i\Izilikazi's reign. As Thea! puts it:
"It would be difficult to exaggerate the importance of the vie
tory ... to civilization and the happiness of both white and black
12
people in South Africa ."
22. In cases in which there was any doubt as to daims to land, the
Trekkers and the later govemments of the Republics negotiated ·with the
1 "British Blue Books", o-p.cit., p.90.
2 Theal, G. :'.\History of South Africa /rom I828 la I846 (1904), p. 281.
3
Ibid., p.293.
• Vide III, p. 234.
' Theal, op. cie., pp. 316,317.
6 Ibid.,pp. 317-318.
7 ibid., p. 320.
8 Ibid., p. 331.
9 Ibid.,p. 344.
to Ibid., p. 345.
11
Vide para. 15, supra. .
12 Theal, G. 1\1.,Histary of South Africa, Vol. II (Vol. VI of the Series) (1926),
p. 320. . REJOINDER OF SOUTH AFRICA 477,
chiefs concerned. So, for instance, .Hendrik Potgieter 1 in 1836 bought
the area between the Vaal and Vet Rivers from Makwana, the chief of
the Bat~ung, although his small tribe could not really have been regarded
as }?eingin occupation of this area 2• In June 1845 Potgieter obtained
from Sekwati, chief of the Pedi, land which allegedly. belonged to his
3
tribe before the reign of the Matabeles • In 1846 it transpired that the
Pedi had no daim whatsoever to the lan·d, and a new agreement was
then concluded with the chief of the Swazis 3•
23. In the three major Republics established by the Trekkers, their
governments always sought to keep the areas of White settlement apart
from the Bantu. After the Trekkers had settled in Natal, thousands of
Bantu refugees moved in, and this caused the Volksraad (legislative body)
in August 1841 to pass à resolution that such Bantu should settle cithcr
in Zululand or in the districts between the Umzimvubu and Umtamvuna
4
Rivers, so as to effect a separation between the races •
In the Free State the daims of the Barolongs were recognized although
this tribe had moved to Thaba Nchu only two years prior to the Great
5.
Trek The Barolong reserve at Thaba Nchu still exists at present. An
other reserve was set aside in the north eastern Free State where scattered
tribes had taken refuge against the onslaughts of the Zulus.
In 1853 Andries Pretorius, the recognized leader in the Transvaal,
issued a proclamation prohibiting the White inhabitants of the Transvaal
from settling in the immediate vicinity of areas occupied by Bantu
tribes 6•Although this proclamation was not always strictly adhered to,
the government of the old South African Republic (Transvaal) saw toit,
in so far as was in its power, that Bantu tribes remained in undisturbed
possession of their villages and areas 7•As was pointed out in the Counter
Memorial, a commission was subsequently appointed for the purpose of
assigning defined areas to Bantu, but before the commission could com
plete its work, the Anglo-Boer \Var (1899-1902) broke out 8• Another
commission, appointed in I905, duly completed the work intermpted by
the war 8•
It follows, therefore, that there is no substance in Applicants' allegation
that the settlers, because of their "appetite for land", took occupation
·of non-White terri tories 9•
1 Vide para. 18, supra.
2 Nathan, M., The Voortrekkers of South Ajrica (1937), p. 141.
3 Van Rooyen, T. S., "Die Verhouding tussen die Boere, Engelse en ~aturelle in
die Geskiedenis van die Oos-Transvaal tot 1882", Archives Year Book for South
African History (1951), Vol. I,pp. 3-4.
• Thea!, G. M., History of South Africa /rom I828 to I846 (1904), p. 363.
5 Vide para. I7. supra.
6 Proclamation signed by A. W. J. Pretorius, 22 Apr. 1853, pp. 1-2, TrUnsvaal
Archives Depot: Vol. State Secretary No. 5, R.519/53.
7 Letter by 1\1. W. Pretorius lo Native Chief Massouw, 24 July 1869, pp. 1-2,
Transvaal Archives Depot: State Secretary B.B. 657/1869; Letter by M. W. Prelodus
to Grutzner, 19 Oct. 1869, pp. 1-2, Transvaal Archives Depot: State Secretary H.B.
981/69; Letter by M. W. Pretorius to J. Brooks, 19 Oct. 1869, pp. 1-2, Transvaal
Archives Depot: State Secretary B.B. 979/69; Letter by B. C. E. Proes to Landdrost,
Bloemhof, 23 Nov. 1869, Transvaal Archives Depot: State Secretary B.B. 1310/69
and Letter by State President to Paramount Chief Moshette, 27 Nov. 1874, Transvaal
Archives Depot: State Secretary B.B. 1490/74.
8 Vide III, p. 236.
9 IV, p. 459· SOUTH WEST AFRICA
24. With reference to the settlers from whose ranks the Trekkers were
drawn, Applicants allege that-
"[s]ince the only non-whites they encountered were their slaves,
their servants, or their enemies, and since they were imbued with
a simplistic version of Calvinism, they became an exceptionally
colour-conscious people 1."
Having made the unsubstantiated statement, already referred to 2,
that the Great Trek was mainly caused by the attempts of the Colonial
Government "to apply the rule of law ... and to abolish legal discrimina
tion on racial grounds", Applicants proceed:
"Thereafter in the South African Republic and the Orange Free
State the Afrikaner Voortrekkers established a caste system in which
only '\Vhites' were deemed to be members of the body politic and
ail non-'Whites' were subject peoples 1."
Applicants create the impression that the Voortrekkers were such "an
exceptionally colour-conscious people" that they denied ail human rights
to the Bantu in the Republics established by them. In the succeeding
paragraphs Respondent will briefly demonstrate that this impression is
completely misleading.
25. In support of the fust allegation quoted ahove, Applicants re1y on
MacCrone without, however, referring to specific passages from his book.
Professor MacCrone is probably an authority in his own field of study,
psychology, but he is certainly no historian and the conclusions reached
in his book are not based on a thorough study of historical sources.
It is true that there were groups among the Voortrekkers who had a
narrow approach to religion and also an exaggerated opinion of the
inferiority of the Bantu in bis then existing state. It is also true, however,
that most of the Voortrekkers were very humane in their approach to the
Bantu. They certainly did not regard the Bantu as their equals, but
in this they were no different from their English compatriots, or from
Europeans all over the world, in general. There was at the time such an
enormous difference between the background and general level of
civilization of the Voortrekkers and those of the Bantu that the natural
reaction of the former was to differentiate on a basis of race or colour.
26. Eric Wa1ker, the historian quotecl by Applicants in another con
text , made a dctailed study of the Voortrekkers in his authoritative book
covering the Great Trek, and certainly did not reach the same conclusions
as MacCrone. As far as the religious conceptions of the Voortrekkers are
concerned, it suffi.cesto quote the following passage from Walker:
"It might be that the religion of the frontiersmen was often a
narrow thing amounting even ta the bigotry that incensed liberal
minded visitors; it might be fatalistic, as when a mother could re
fuse to have her child's physical defect remedied because 'as God
had appointed it she could not alter it' ... The Boers were not singu
lar in these things, and, as for fatalism, life in and around the Karoos
was apt to breed such an attitude towards a God whose ways clearly
passed understanding and from whose decrees there was no appeal.
i IV, p.46o.
2 Vide para. 13, supra.
1
IV, p.459, footnote 4. REJOINDER OF SOUTH AFRICA
479
Be ail that as it may, religion was a real thing to the Boers, reat
enoitgh to have prevented them from becoming 'wholly degenerate and
savage'. They owed it to religion first and then to their wives, who
womanlike clung to the amenities of life and the consolations of the
Church more desperately than the men, that in the course of their
long wanderings among the 'heathen' they had not sunk to their
level as Westerners sometimes feared they might sink, and the bor
derers in both the Americas of their days were actually sinking 1."
(ltalics added.)
. 27. In the Republic only adult, male Europeans were eligible to vote
and to be elected to the legislative bodies. At a time when the franchise
was withheld from women, it would indeed have been unthinkable to
confer the same on the Bantu, whose contact with Western civilization
dated back no more than a decade or two, and who had not the slightest
conception of the functioning of a democratic society. Moreover, and as
already pointed out, the govemments of the Republics sought from the
outset to segregate territorially among members of the White and
Bantu groups.
Apart from the sphere of govemment, however, all the inhabitants of
the Rep_ublics were generally speaking treated alike by their laws. No
enmity was shown by the governments to missionaries working among
the Bantu 2,and slavery was expressly outlawed 3•
·28. In 1874 President Burger sent out a questionnaire to certain per
soris in which they were asked to comment on the Native policy of the
South African Republic. It is perhaps of some significance that George
Sharley, rector of the Church of England in Pretoria, replied: "The policy
followed by the present Government with regard to the natives is hu
mane, mild and not too severe a character 4."
29. In a letter quoted in ·the British parliament in 1881, Bishop Co
lenso, known as a champion 9f the interest~ of the Bantu, wrote:
"I have urged the simple fact that 800,000 Natives were living
under the Boer Govemment _without taking to flight and running
over to Natal for protection Î!i:enough to show that the accusation
against the Boer;; of illtreating the Natives under their rule must be
1.. grossly exaggerated, and that, to all appearance, they even prefer
5
.,.~.~t-h'e Boer rule to our own ."
'.'jo. It is unnecessary to dwell any -f~her on the policies adopted by
the Republics in regard to the Bantu. Théabove brièfexposition makes it
abundantly clear that no "caste system"-with ail the negative implica
tions associated with tlie word "caste"-was established by the Voor
trekkers. · '.· · · '· . : . ;
•• 1 Walker, E. A.. The Great Trek (r934), pp. 57~58. ..
2 Nath?>n, M., Paul Kruger (1946), p. 254. . .· .
• 3 Minutes of thè Council. of Represe',itatives, 4 Nov: 1847, pp. 103-105, Transvaal
Archives Th!.pot:E.V.R.1. · .". -
• Huyser, J. D., Die Naturelle-Politiek van die Suid-Afrikaanse Republiek z838·
r877 (Unpublished Thesis, University of Pretoria, 1936), p. 261. . .• ·· !.·
5 Jordaan, J. T., Die Ontwikkeling van die Sending van die Nederduits Gerefor
meerde Kerk in Transvaal (Unpublished Thesis, University of Pret<;iri~., •1962),
pp. 98-99. . ·:·~ "'~i.:: SOUTH WEST AFRICA
E. UNIFICA TJON AND ITS AFTERMA TH
3r. Applicants contrast the "caste system" which was allegedly estab-
lished in the Boer Republics with the position in the Cape Colony where
,'... the idea that the law should not discrimina te between people on
account of their race or religion gained considerable support among
all sections of the population 1".
Applicants proceed to quote the views held beforc 1910 by two Cape
politicians, J W. Sauer and F. S. Malan, and the authoress Olive Schrei
ner, with a view to substantiating the above statemcnt, and to showing
that the Cape delegates to the National Convention, which was convened
for the purpose of drawing up a constitution for a united South Africa,
"pledged themselves to uphold the Cape system" 2. Having stated that
"the delegates from the northern colonies, including Natal, were de
termined to debar. all non-whites from exerdsing political power in the
Union", and having by way of illustration quoted the views of a member
of the Orange River Colony parliament, Applicants conclude that-
"[t]he result was that the Cape delegates agreed that only 'Whites'
should be eligible to become members of the South African parlia
ment and that the franchise laws of the four colonies should remain
in force in the respective provinces of the Union, ·until they were
altered by parliament; and the way was thus paved for the establish
2
ment and maintenance of a caste system throughout South Africa ."
32. It is conceded that in the old Cape Colony there was theoretical
legal equality between the races in the sense that the franchise was open
to ait men, ïrrespective of race, who complied with certain qualifications.
It is also true that the Cape delegates to the National Convention, or at
least the majority of them, sought to introduce the Cape system in the
proposed constitution for the country as a whole. lt should be borne in
mind that, almost without exception, the Cape political leaders were
living in the western Cape in which hardly any Bantu were to be found
at the time, and which was far removed from the concentrations of Bantu
in the areas reserved for their occupation. To these leaders the problems
created by the presence in one and the same country of different popula
tion groups in different stages ofdevclopment and with different languages,
cultures, moral concepts, etc., were understandably not so real as to
their colleagues in Natal and the northem colonies who had already con
ceived the notion that a policy of separate developmcnt offered a real
and equitable solution to the said problems.
33. One of the main reasons why the northern and Natal delegates
almost unanimously, and a number of the Cape delegates as well, opposed
the Cape franchise system, was the abuse which had been made of the
system in the Cape Colony. ln the words of B. K. Long:
"_They[the Natives] had a vote in Cape Colony before Union, a~d
the1r names were then on the same voters' roll as thosc of the white
voters. The qualification for a vote then ~as ability to write name,
address, and occupation, as well as ownership of a small amount of
property, or eaming of a not very large annual wage. There was no
distinction between Europeans and non-Europeans, so far as their
. 'l .
, · IV, p. 460.
2 Ibid.,p. 46c. REJOINDER OF SOUTH AFRICA
right to the franchise went; any man, whatever his colour, could have
a vote if he could satisfy the registration official that he had the
requisite qualification. \Vhat was the result? There was widespread
abuse. Political parties hired rooms close to the office where the
registration officer sat. Raw natives, quite unable to read or write,
were taken into these rooms, taught to write down their name,
address, and occupation, and hurried next door to get themselves
registered before they forgot the lesson. The whole thing was an
1
open scandai, in which both the then political padies connived ."
34. Despite the initial attempts of the Cape delegates to incorporate
the Cape franchise system in the draft constitution, the parliaments of
the Orange River Colony, the Transvaal and the Cape Colony, and the
electorate of Natal eventually accepted the draft, as amended at a short
final session of the National Convention in Bloemfontein, whereafter it
was duly approved by the British Govemment. As Professor Eric Wa.lker
puts it: ·
'The Draft Act was naturally assailed on various grounds in
each of the colox:iiesas soon as it was published; but Hofmeyr failed
to swing the Bond against it in the Cape, and three of the Parlia
ments accepted the Draft, though those of the Cape, and the O.R.
Colony proposed serious amendments. The Transvaal legislature
proposed none ... The amendments were nevertheless disposed of at
a short final session at Bloemfontein, the revised Draft was accepted
·by three of the parliaments and by an unexpectedly large majority
of the electorate voting at a referendum in Natal and, in spite of
Schreiner's efforts to mobilise English opinion against the franchise
clauses, which he regarded as a trap rather than a safeguard, it
passed the Lords without challenge, easily overrode opposition in
another place, and duly received the Royal Assent 2."
35: By stating that-
"... the delegates from the northern colonies, including Natal, were
determined to debar ail non-whites from exercising political power in
the Union 3" (italics added),
and then quoting the view expressed by a single member of the Orange
River Colony parliament, J. P. G. Steyl, Applicants create the impression
that the said delegates held a similar view, viz., "that the Native was
(not) a man and that he was (not) entitled to rights" 3• Applicants fail
to mention, however, that the Prime Minister of the Colony, Abraham
Fischer, the leader of the opposition, Sir John Fraser, and the Attomey
General, J. B. ;\L Hertzog, deprecated the tone of Steyl's speech 4, and
that tlie true view of the majority of the members of the Colony's parlia7
ment was during the same·debate expressed by C. L. Botha who said that
"[h]e wished the black man to have all his rights in his own _country and
the White man in his" 5. {Italics added.)
Shortly after the Union of South Africa was established, legislation was
- Long; B. ·K., l1I Smuts's Camp (1945), p. 102 .
.2_Walker, E. A., A History of South Africa (1935). pp. 533-534.
1.3IV,.p. 461. . · . ··
• Thompson, L. M.• The Unification of South Africa I9oz-r910 (1960), pp:-333-334.
! Ibid., p.333. .(. . . , . :.:. .'. ·" SOUTH WEST AFRICA
adopted to give effect to the firm conviction of the majority of the politi
cal leaders in the country, viz., that it would be in the best interests of
all the inhabitants of South Africa if the White and Native groups were
to exercise their basic rights in their own respective areas. As pointed out
in the Counter-Memorial, the Natives Land Act of 1913 was the initial
legislation embodying the principle of territorial segregation and separa
1
tion of land rights •During the debates preceding the adoption of this
Act, leaders of the government saicl that in the areas set asidc for the
Natives "[t]hey would be able to tax themselves and govern themselves
under the control of the white man", and that "his [the Native's] position
would become stronger and stronger, and he would be able even to have a
1
continually growing measure of self-government within that territory" •
The Schedule to the Act contained descriptions of areas known as
Scheduled Native Areas. These areas comprised the then existing Native
reserves and locations, together with certain land held by Native fribes,
communities and individuals. The Act prohibited, without the consent
of the Governor-General being obtained, the acquisition by any person
other than a Native of any land or interest in a Scheduled Native Area,
and conversely it prohibited, without such consent, the acquisition by a
Native of any land or interest in land outside a Scheduled Native Area
2
from a persan other than a Native •
36. In Annex 3 to the Reply, the United Nations Special Committee
states, with reference to the Natives Land Act, that "African leaders
protested (sic) it as an unjust law directed against the vital interests of
their people" 3. The Committee proceeds to cmphasize the res~rictions
placed by the Act on·the purchase of land by Natives, but ignores the
reciprocal restrictions, referred to above, placed on non-Natives 3•
While it is true that some Natives did abject to _the provisions of the
Act forbidding the acquisition of land by Natives outside Scheduled
Native Areas, Native leaders welcomed the provisions of the Act which
dearly demarcated the reserves and forbade the transfer of such land to
non-Natives. The said objection seemed to have ignored the Government's
expressed intention of adding substantially to the Native reserves in due
course. In fact, the Act specifically pr?vided for the appointment of a
commission to determine what additional areas should be set aside for
Native occupation.
t III, p. 237.
2 Ibid. In para. 105 of Annex 3 to the Reply, IV, p. 350, it is alleged that in 1903
General Botha, who was to become the first Prime Minister of the Union of South
Africa, declared that "he would, if necessary, break up the areas of land reserved for
the Natives (including the Protectorates), in order to provide labour for the mines
and farms". The source cited in the said Annex (IV, p. 350, footnote 4) is an article
by Julius Lewin in The Polilical Quarter/y, Jan.-Mar. 1957, p. 67. Lewin, however,
cites no source to substantiate his statement that General Botha used the words
quoted above, and it bas consequently been impossible for Respondent to establish
whether General Botha in fact made the said statement, and if so, in what context.
Itshould be observed, however, that this alleged statement is diametricallyopposed
to the known views of General Botha regarding the Native reserves, as is eyidenced
by his speeches during the debates on the Natives Land Bill. Thus, for instance, he
stated that "[s]ome people thought the solution of the Native question meant the
finding of sufficient labour for their requirementsHe wished to tell these people at
once that they could not supply their labour by means of legislation"-U. of S.A.
Par3. Deb., House of Assembly (1913), Col.25r4. ·
IV, p. 351 (para. 107). lŒJOl:-.'DER OF SOUTH AFRICA
As was pointed out in the Counter-M.emorial, the reports of the Native
Lands Commission-appointed in terms of the Act-and of ftve local
rnmmittees later culminated in the passing of the Native Trust and Land
Act of 1936, the object of which was-
"... to provide further areas whcrc the Natives can maintain a
reasonable standard of life and develop their own institutions, and
secure a better adjustment of the relations between white and
black 1."
In implementation of this object, the Act created the South African
Native Trust, which was to be the agency to acquire further areas total
ling over 7 million morgen for transfer to the Native reserves. The Trust
has consistently worked towards this end, and, as has bcen pointed out,
has to date acquired a further 5,393,730 morgen for the sole use and occu
pation of the Bantu =.
37. ln view of what has been stated above, and also in the Counter
Memorial regarding the establishment of homelands in South Africa 3,
Respondent submits that there is no substance in the suggestion that the
founders of the Union paved the way for the establishment of "a caste
system" which has been maintained through the years 4.
F. CONCLUSION
38. In the foregoing paragraphs Respondent has dealt briefly with
Applicants' version of historical events in South Africa and with references
to such events in the extract of the Report of the United Nations
Special Committee, being Annex 3 to the Reply. Respondent has demon
strated that there is no substance in allegations such as that South Africa
was already effectively occupied by indigenous inhabitants at the time of
the arrivai of the first \Vhite settlers; that the Europeans proceeded to
take occupation of non-White land; that the Voortrekkers or the founders
of the Union established and maintained "a caste system", and that the
Natives have been progressively confined to limited areas of land. It
follows that the assertions that Respondent has created a "... false im
pression ... of a kind of historie 'separateness' or apartheid" 5,and that
"... the traditional geographical separation is mainly a restriction on
landownership imposed by the Government" 6, are likewise unfounded
.and without substance.
1 Vide III,p.238.
~ Vitk sec.E, Chap. V, para. 18, supra.
3 Counter-Memorial, Book IV, Chaps. IV to Vll.
• IV, pp. 461-462.
5 Ibid., pp. 458-459.
' Ibid., p. 351.
Rejoinder filed by the Government of the Republic of South Africa