INTERNATIONAL COURT OP JUSTICE
PLEADINGS, ORAL ARGUMENTS, DOCUMENTS
so-UTH WEST AFRICA CASES
(ETHlOPIA v. SOUTH AFRICA;
LIBERIAv.SOUTH AFRICA)
VOLUME II
1966
COUR INTERNATIONALE DE JUSTICE
MÉMOIRES, PLAIDOIRIES ET DOCUMENTS
AFFAIRES DU SUD-OUEST AFRICAIN
(ÉTHIOPIE c. AFRIQDU SUD;
LIBÉRIA AFRIQUE DU SUD)
VOLUME II The present volume contains the first four books of the Counter
Memorial relating to the South West A/rica cases. The proceedings
in these cases, which were entered on the Court's General List on
4 Novernbei 1960 under numbers 46 and 47, were joined by an
Order of the Court of 20 May 196r (South West Africa, Order of
20 May I96I, I.C.J. Reports· I96I, p. 13). Two Judgrnents have
been rendered, the first on 21 December 1962 (South West Africa,
Preliminary Obfections, Judgment, I.C.J. Reports I962, p. 319), and
the second on 18 July 1966 (South West Africa, Second Phase, Judg
ment, I.C.]. Reports I966, p. 6).
The page references originally appearing in the pleadings have
been altered to correspond with the pagination of the present edi
tion. Where the reference îs to another volume of the present edi
tion, the volume îs indicated by a roman nurneral in bold type.
The Hague, 1966.
Le présent volume reproduit les quatre premiers livres du contre
mémoire déposé dans les affaires du Sud-Ouest africain. Ces
8
affaires ont étéinscrites au rôle généralde la Cour sous les n° 46
et 47 le 4 novembre 1960 et les deux instances ont étéjointes par
ordonnance de la Cour le 20 mai 1961 (Sud-Ouest africain, ordon
nance du 20 mai I96I, C.l.J. Recueil I96I, p. 13). Elles ont fait
l'objet de deux arrêts rendus le 21 décembre 1962 (Sud-Ouest afri
cain, exceptions préliminaires, arrêt,G.I.]. Recueil I962, p. 319) et
le 18 juillet 1966 (Sud-Ouest africain, deuxième phase, arrêt,G.I.].
Recueil I966, p. 6).
Les renvois d'un mémoire à l'autre ont étémodifiés pour tenir
compte de la pagination de la présente édition. Lorsqu'il s'agit
d'un renvoi à un autre volume de la présente édition, un chiffre
romain gras indique le numéro de ce volume.
La Haye, 1966. CONTENTS - TABLE DES MATIÈRES
PARTI. APPLICATIONS INSTITUTING
PROCEEDINGS AND PLEADINGS
PREMIÈRE PARTIE. REQUÊTES INTRODUCTIVES
D'INSTANCE ET MÉMOIRES
SECTION B. PLEADINGS ( continued)
SECTION B. MÉMOIRES (suite)
5. Counter-Memorial filed by the Governmentof the
Republic of South Africa
BOOK I
Page
Chapter I. General introduction l
Chapter II. Submissions. . . . 6
Maps
South West Africa [See pocket in back cover]
Political Map of Africa 1939 [Not reproduced]
Political Map of Africa 1961 [Not reproducedj
BOOK II
Chapter I. Introduction to Book II. 7
Chapter II. Historical background . 9
Introductory . . . . . . . . . . . . . 9
Origin and nature of the mandate system . . . . . 9
The framing of the Mandate for South West Africa. 15
The League of Nations period . . . . . 22
The period of transition 1945-1946 . . . ·. . . . . 32
Establishment of the United Nations . . . . . . 32
Dissolution of the League of Nations . . . . . . . . 43
Dissolution of the Permanent Court of International Justice . 52
The period 1946-1949. . . . . . . . . . . 52
The period 1950-1960. . . . . . . . . . . . . . . . . 71
Introduction . . . . . . . . . . . . . . . . . . . 71
Summary of the Court's advisory opinions . . . . . . 72
Year-by-year chronology of relevant events: 1950-1960 . 73
Summary. . . . . . . . . . . . . . . . . . . . . . 95X SOUTH WEST AFRICA
Page
Chapter Ill. Foundations of Respondent's legal argument . 97
A. General outline . . . . . . . . . . . . . . . . . 97
B. Effect of the previous Advisory Opinion . . . . . . . . . 98
C. Effect of the judgment and opinions on the Preliminary
Objections . . . . . . . . . . . . . . . . . . . . . . 102
D. Origin and contents of the Mandate . . . . . . . . . . . rn3
E. General principles applicable in determining whether parti-
cular provisions ofthe Mandate still exist . . . . rn9
I. General . . . . . . . . . . . . . . . . . . . . 109
II. Principles of interpretation and implication. . . . . rro
III. Legal mies affecting relationships between States and
operating independently of their consent, express or
implied . . . . . . . . . . . . . . n3
Chapter IV. The Mandatory's procedural obligations . . . . . . n5
A. Introductory . . . . . . . . . . . . . . . . . . . . . II5
B. History, nature and meaning of Mandatory's procedural
obligations . . . . . . . . . . . . . . . . . . . . . . n5
C. Whether an implied term can be read into the mandate
instrument. . . . . . . . . . . . . . . . . . . . . . 122
D. Whether an agreement, express or implied, was entered into
during the years r945-r946 or thereafter . r24
I. General . . . . . . . . . . . . . . . . . . . . r24
II. The United Nations Charter . . . . . . . . . . . r27
III. United Nations resolutions of January-February r946
pertaining to assumption of certain League functions
and establishment of the trusteeship system . . . . . r29
IV. Relevant League of Nations Œsolutions during last
session of its assembly. 8 to r8 April r946 . . . . . . r33
V. Negotiations subsequent to dissolution of the League. r37
VI. Practice of States . . . . . . . . . . . . . . . . r38
VII. The Advisory Opinion of r950. . . . . . . . . . . I4I
VIII. Dissent !rom the r950 Opinion concerning supervision r48
IX. Advisory Opinions of r955 and r956 . . . . . . . . 152
X. Judgment and opinions on the Preliminary Objections 152
XI. Conclusion regarding agreement in 1945-1946 or
thereafter . . . . . . . . . . . . . . . . r63
E. Succession by virtue of some objective principle of inter-
national law . . . . . . . . . . . . . . . . r63
F. Conclusions regarding the procedural obligations r64
Chapter V. The lapse of the Mandate as a whole r65
Part A . . . . . . 165
Part B . . . . . . . . . . . . . . . . . 175
A. Introductory . . . . . . . . . . . . . . 175
B. The scope and purpose of the compromissory clause r75
C. The effect of the dissolution of the Permanent Court of
International Justice on the compromissory clause 193
I. Introductory . . . . . . . . . . r93
II. Definition of treaty or convention . . . . . 194 CONTENTS XI
Page
III. Did the rights and obligations incorporated in the
Mandate derive their force from ·international
agreement? . . . . . . . . . . . . . . . . . ·. 196
IV. Who could have been the parties to any mandate
agreement? . . . . . . . . . . . . . . . . . . 204
V. Conclusion regarding the dissolution of the Perma-
nent Court . . . . . . . . . . . . . . . . . . ·213
D. The effect of the dissolution of the League on the parties
entitled to invoke the comprornissory clause . . . . . . 2r4
I. Introductory . . . . . . . . . . . . . . . . . 214
II. Interpretation of the phrase "another Member of
the League of Nations". . . . . . . . . . . . . 214
III. Can a term be implied in the Mandate to provide
the necessary adaptation to the existence of the
provisions of Article 7 of the Mandate alter the dis
solution of the League of Nations?. . . . . . . . 235
IV. Was any agreement, express or implied, entered into
during the period 1945-1946 providing for the
adaptation of the compromissory clause to an
existence after the dissolution of the League of
Nations? . . . . . . . . . . . . . . . . . . . 238
V. The Application of some principle of international
law, not arising from agreement, express or implied. 253
VI. Conclusion regarding the effect of the dissolution of
the League . . . . . . . . . . . 256
E. General conclusion on Part B of Chapter V 256
Chapter VI. Submissions . . . . . . . : . . . 257
Annexes to Book II of the Counter-Memorial filed by the Govern-
ment of the Republic of South Africa . . . . . . . . . . . . . . 258
A. Participation by members of the United Nations in debates
in that Organization during the years 1947, 1948 and 1949
concerning the "question of South West Africa". . . . . . 258
First part: Index to statements of ail States which partici-
pated . . . . . . . . . . . . . . . . . . . . . . . 258
Second part: Extracts from statements by representatives
of certain States . . . . . . . . . . . . . . . . . . 275
B. Article 22 of the Covenant of the League of Nations [See
Annex A toMemorials, Vol. I, p. 200]
C. Mandate for German South-West Africa [See Annex B to
Memorials, Vol. I, p. 20I]
BOOK III
Chapter I. Geographical features of South West Africa 289
A. Introductory . 289
B. Location . . . 289
I. General 289
II. Borders 289
C. Area . 291
D. Topography . 293XII SOUTH WEST AFRICA
Page
E. Climate ..... .
I. Introductory . 294
II. Rainfall . . . 294
294
(a) Average annual rainfall 295
(b) Seasonal distribution of rainfall 295
(c) Effectiveness of rainfall 297
(i) Variability . 297
(ii) Evaporation 298
III. Climatic Regions 298
F. Vegetation .....
301
G. Natural resources . . . 301
I. Introductory . . 301
II. Water resources 301
III. Land resources . 304
(a) Cropping . . 304
(b) Stock farming. . . 304
(c) Timber exploitation 306
(d) Conclusion . 306
IV. Mineral resources
V. Marine resources 308
H. Transportation . . . . 309
I. Conclusion . . . . . . . 310
Chapter II. Population groups of South West Africa 3II
A. Introductory . . . . . . . . . . . 3rr
B. The Eastern Caprivi peoples . . . . . 312
I. Composition of the population . 312
II. Origin and history. . . . . . . 313
III. Social and political organization. 314
IV. Language . . . 315
V. Religion . . . . 316
VI. Economy 316
C. The Okavango peoples . 317
I. Composition of the population 317
Il. Origin and history. . . . . . 317
III. Social and political organization . 318
IV. Language 318
V. Religion . 318
VI. Economy 319
D. The Ovambo ..
319
I. Composition of the population 319
II. Origin and history . . . . . 320
III. Social and political organization 322
IV. Language 323
V. Religion . 323
VI. Economy 324
E. The Bushmen . 325
I. Composition and distribution of the group 325
II. Origin and history . . . . . . . . . 327 CONTENTS XIII
Page
III. Social and political organization . 328
IV. Langnage 329
V. Religion . . . . . 329
VI. Economy 329
F. The Dama or Bergdama . 330
l. Composition and distribution of the group 330
II. Origin and history . . . . . . 331
III. Social and political organization. 333
IV. Langnage 335
V. Religion . . 335
VI. Economy 335
G. The Hottentots or Nama 336
I. Introductory . . . . . . 336
II. Composition, distribution and early history. 337
III. Langnage . . . . . . . . . . 338
IV. Economy . . . . . . . . . . 338
V. Social and political organization. 339
H. The Herero . . . . . . . . . . . . 340
I. Composition, distribution and early history. 340
II. Social and political organization 342
. III. Langnage : : : . 345
IV. Religion . . : . 345
V. Economy 346
I. The Rehoboth Basters . .347
J. The Europeans 347
Chapter III. History of South West Africa from approximately
1800 to 1920 . . . . . . . . . . . . . . . . 349
A. Introductory . . . . . . . . . . . . . . 349
B. First contacts between the Herero and the Nama . 349
C. Early history of the Afrikaner tribe . 350
D. The era of Nama domination. . . . 350
E. The liberation and rise of the Herero 355
F. The early history of the Witboois . 358
G. Attempts at restoring peace . . . . 358
H. The period of Herero domination . . 359
I. The wars of 1880 to 1884 . . . . . . 361
J. German acquisition of South West Africa . . . . 364
K. The wars between Hendrik Witbooi and the Herero . 365
L. The wars between Hendrik Witbooi and other Namas . . . 367
M. The extension of effective German control over South West
Africa. . . . . . . . . . . . . . . . 369
N. The period 1898-1903 . . . . . . . . . 373
O. The wars of 1903-1907 . . . . . . . . 374
I. The Bondelswarts rising 1903-1904 374
II. The Herero-German war 1904-1906 374
III. The Nama-German war 1904-1907 . 375
P. The last years of the German period . . . 376XIV SOUTH WEST AFRICA
Page
Q. The position of the various population groups alter a century
of strife . . . . . . . . . . . . . . . . . . . . . . . 377
I.The inhabitants of the northem and nortl:i-eastern part
of the territory. 377
II. The Hereros . . 377
III. The Nama . . . . . . 378
IV. The Bergdamas . . . . 378
V. The Europeans . . . . 379
VI. The Rehoboth Basters . 379
R. The conques! and military occupation of South West Africa
by South African forces . . . . . . . . . . . . . . . . 380
BOOK IV
Chapter 1. Introductory . . . . . . . . . . . . . . 38r
Chapter II. Statement of the law . . . . . . . . . . . . 384
Chapter lll. Background information: area and population 399
Chapter IV. Respondent's policies: the situation in r920 . 404
A. ,Introductory . . . . . . . . 404
B. The economy of the territory . 404
Export trade . . . . . 405
Revenue . . . . . . . 406
Agriculture . . . . . 406
Railways and harbours 407
C. The population . . . . . 407
D. Summary of the situation in r920 . 409
E. The implications arising from the situation in 1920. 409
I. The necessity for differentiation.. . . . . 409
ll. The role to be played by the European population 4ro
III. The role of the Native population. . . . . . . . 4rr
F. A policy of differentiation was in keeping with the concep-
tions ofthe times . . . . . . . . . . . . . . . . . . . 4r4
Chapter V. Respondent's policies: initial phases and early develop-
ment . . . . . . . . . . . . . . . . . . . . . . 4r9
A. Introductory . . . . . . . . . . . . . . . . . . . . . 4r9
B. Importance of the European population in regard to the
economic development of the Territory, and the implications
thereof . . . . . . . . . . . . . . . . . . . . . 4r9
C. Considerations affecting the Native groups . . . . . . 422
D. Early stages of economic advancement of the Natives . 424
I. Labour in the European economy . . . . . . . 424
II. Agriculture in the Native reserves . . . . . . . 425
E. Policy regarding land and rights of residence . . . , . 426
F. Development in early years up to the Second World War 428
Chapter VI. Respondent's policies: comparison with other African
territories . . . . . . . . . . . . . . . . . . . . . . . . 430
A. Up to the Second World War . . . . . . . . . . . . 430
B. Developments during and alter the Second World War 440 CONTENTS XV
Page
Chapter VII. Respondent's policies: post-war adjustments 457
Annexes to Book IV of the Counter-Memorial filed by the Govern-
ment of the Republic of South Africa. . . . . . . . . . . . . 489
A. Brief factual account of the constitutional arrangements in
African countries south of the Sahara, prior to the outbreak
ofthe Second World War, showing the degree to which the
indigenous inhabitants participated or were represented in
the legislative and executive processes of government.. . 489
I. British controlled territories in Central and Southern
Africa . . . . . . 489
Southern Rhodesia 489
Northern Rhodesia 490
Nyasaland . . 492
Swaziland . . 492
Basutoland . . 493
Bechuanaland 493
II. British controlled territories in East Africa . 494
Kenya. . . . . . 494
Uganda . . . . . 495
Tanganyika . . . 496
British Somaliland 497
III. British controlled territories in·West Africa. 497
Gold Coast . . . . 497
Nigeria . . . . . 498
Sierra Leone . . . 499
British Cameroons 500
British Togoland . 500
Gambia . . . . . 5or
IV. French controlled territories 502
French West Africa . . . 502
French Togoland . . . . 503
French Equatorial Africa 503
The French Cameroons 504
Madagascar . . . . . . 504
V. Italian controlled territories 505
Eritrea . . . . . . . . . 505
Italian Somaliland . . . . 505
VI. Belgian controlled territories 505
Belgian Congo . . .
505
Ruanda-Urundi . . . 506
VII. Portuguese territories 506
VIII. Spanish territories. 506
Spanish Guinea . . 507
IX. Independent States 507
Ethiopia . 507
Liberia 507XVI SOUTH WEST AFRICA
Page
B. Brief summary of the constitutional developments in the
same countries after the beginning of the Second World War 509
. I. British controlled territories in Central and Southern
Africa . . . . . . 509
Southern Rhodesia . . . . . . . . . . . 509
Northern Rhodesia . . . . . . . . . . . 5rn
Nyasaland . . . . . . . . . . . . . . . 5n
The Federation of Rhodesia and Nyasaland SII
Swaziland . . jI2
Basutoland. . 5I2
Bechuanaland 513
li. British controlled territories in East Africa . 513
Kenya. . . . . . . . . . . . . . 513
Tanganyika . . . . . . . . . . . . . . 515
Uganda . . . . . . . . . . . . . . . . 516
British Somaliland . . . . . . . . . . . 516
III. British controlled territories in West Africa 517
Gold Coast . . . . 517
Nigeria . . . . . 517
Sierra Leone . . . 518
British Cameroons 519
British Togoland . 520
Gambia ... · . . 520
IV. French controlled territories 521
French West Africa . . . 521
French Togoland . . . . 521
French Equatorial Africa 522
French Cameroons 522
Madagascar . . . . . . 522
V. Italian controlled territories 523
Eritrea . . . . . . . . . 523
Italian Sornaliland 523
VI. Belgian controlled territories 524
Belgian Congo . . . 524
Ruanda-Urundi . . . 525
VII. Portuguese terri tories 525
VIII. Spanish territories 526
Spanish Guinea . . 526
IX. Independent States 527
Ethiopia ..... 527
Liberia. . . . . . 5275. COUNTER-MEMORIAL FILED BY THE GOVERNMENT OF THE
REPUBLICOF SOUTHAFRICA
BOOK I
CHAPTER I
GENERALINTRODUCTION
r. On 4 November 1960 the Governments of Liberia and Ethiopia
(hereinafter usually referred to as "A;pplicants") submitted an Applica
tion to this honourable Court to mstitute proceedings against the
Government of the Union of South Africa, now the Republic of South
Africa (hereinafter usually referred to as "Respondent"). Each Applicant
filed a Memorial on 15 April 1961. Thereupon the proceedings were
joined by an Order of the honourable Court dated 20 May 1961. On
30 November 1g6r Respondent filed Preliminary Objections relating
to the jurisdiction of the Court, which Objections were dismissed by a
majority Judgment dated 21 December 1962. This Counter-Memorial
is submitted pursuant to Orders of the Court dated 5 February 1963
and 18 September 1963.
2. Before proceeding to a detailed discussion of the matters in issue
it will be convenient to set out in broad outline the field which is covered
bv this Counter-Memorial.
.,Applicants summarize in the following terms the case presented by
!hem:
"The dispute between Ethiopia 1 and the Union to which this
Memorial is addressed, relates to the interpretation and application
of the Mandate for South West Africa. The subject of the dispute
concerns the, continued existence of the Mandate for South \Vest
Africa and the dulies and performance of the Union, as Mandatory,
thereunder. Ethiopia insists that the Mandate is still in force; that
the Union continues to have duties thereunder; that the United
Nations is the proper supervisory organ to which annual reports
and petitions should be submitted by the Union, and·whose consent
is a legal prerequisite and condition precedent to modification of the
terms of the Mandate; and that the Union has violated and is vio
lating Article 22 of the Covcnant of th2 League of"Nations and
Articles2, 4, 6, and 7 of the Mandate ."
The nature of Respondent's submissions in reply to the charges thus
made, may be set out as follows:
(a) Res;pondent firstly submits that the whole Mandate for South West
Afnca lapsed on the dissolution of the League of Nations, and that
Respondent is consequently no longer subject to any legal obligations
1 This quotationis derived from the l\lemorial submitbydEthiopia. The one
filedbyLiberia is in identical terms in this respect, save for the suof thetion
names of the Applicants.
:zVide I,p.32. SOUTH WEST AFRlCA
2
thereunder. If this submission is accepted, it would dispose of the
whole of the Applicants' case, which is based entirely on the con
tinued existence of the Mandate.
(b) ln the alternative, and cven if ilwere to be held that the Mandate
as such continued in existence after the dissolution of the League,
Respondent submits that ils former obligations to report and ac
count to, and to submit to the supervision of, the Council of the
League of Nations, lapsed upon dissolution of the League, and have
not been replaced by any similar obligations relative to supervision
by any organ of the United Nations or any other organization or
body.
(c) Submissions (a) and (b) above raise mainly issnes of law, and the
considerations relating to them are to a large extent intertwined. They
will accordingly be dealt with together in one book of this Counter
Memorial (Book II). ln addition Respondent will (on the basis
set out below) enter into the merits of Applicants' complaints
regarding alleged violations of the substantive provisions of the
Mandate (i.e., Articles 2, 4 and 7) and of ils obligations as stated
in Article 22 of the Covenant. Books III to IX of this Counter
Memorial will be devoted to this purpose.
Respondent wishes to emphasize that ils treatment of the merits of
Applicants' complaints regarding alleged violations of the Mandate must
not be taken as an admission of the continued existence of the Mandate:
the treatment is purely on an alternative basis, arising only if the Court
were to find, contrary to Respondent's submission, that the Mandate did
not lapse on dissolution of the League of Nations.
3. As will be seen, the present Counter-Memorial is an extremely
lengthy document. This bas been caused by various circumstances to be
dealt with in the next succeeding paragraphs.
4. Applicants' charges cover a very wide field. Their allegations relate
to virtually every aspect of the administration of South West Africa
since 1920. At the same time their statements of facts are expressed m
very terse terms without any adequate attempt to provide the back
wound information necessary for a proper appreciation of the issues
mvolved. This factor is of particular importance in connection with
Applicants' contentions regarding alleged contraventions of Article 2 of
the Mandate 1•As will be demonstrated, Applicants' allegations in this
regard amount, on analysis, to a charge that Respondent has exercised its
"full power of administration and Iegislation" under Article 2 of the
Mandate in bad faith with an intention or purpose other than one to
"promote to the utmost the material and moral well-being and the
social progress of the inhabitants of the territory" 2• Since the issue
here is one of intentions or purpose, Respondent has found it necessary
not only to refute incorrect allegations contained in the Memorials, but
also to fill in the picture of ils administration of the Territory with a_ll
the details required for a proper evaluation of its actions, and, in par_tt
cular, to endeavour to present ail the material which would reqmre
consideration before any judgment could be reached as to Responde~t's
good or bad faith. This material consists of information regarding
1 Vide I, p. rn4.
z Art. 2 of the Mandate-see Book IV, Chap. II, paras. 17-21. COUNTER·MEMORIAL OF SOUTH AFRICA 3
South West Africa, its background and administration, and regarding
circumstances in other countries or territories which may be relevant
in evaluating or explaining measures taken by Respondent, or which may
be of assistance to the Court by way of comparison or illustration.
5. Respondent regrets that the bulk of its Counter-Memorial has
been increased by a certain amount of repetition. In view of the vast
field that was required to be covered in a relatively short time, many
people have contributed to the end product. Ali efforts have been made
to correlate and dovetail the parts produced by different people into
one integrated whole, but this has necessarily been the task of a few
persons and through pressure of time the aim has not been achieved in
full measure. ·
6. In Chapter II of the Memorials, Applicants quote extensively from
reports and resolutions of various organs of the United Nations, and, in
particular, from the reports of the Committee on South West Africa 1•
The extracts contain demonstrably wrong conclusions, derived from
wrong factual information and assumptions. Nevertheless, save where
Applicants in the formulation of their specific charges rely on some
statement in such a report or resolution, or associate themselves with
some allegation therein 2, Respondent does not propose tra versing the
allegations or conclusions in question-for reasons to be indicated in the
succeeding paragraphs.
7. Applicants' allegations regarding alleged breaches by Respondent
of substantive provisions of the Mandate are contained in Chapters V
to IX of their Memorials. In these Chapters Applicants formulate their
charges, and, where so advised, they quote United Nations reports as
sources for their allegations, or they associate themselves expressly with
comments or criticisms emanating from United Nations organs. Respon
dent does not understand the quotations from reports of organs of the
United Nations in Chapter II of the Memorials to constitute in effect
further complaints made by Applicants. This is particularly so since
Chapter II purports to contain no more than the "history and back
ground of the dispute" 3•The purpose in referring extensively to the said
reports in Chapter II was therefore, presumably, to seek to establish
the existence of a dispute between the parties, and no more.
8. The said reports and resolutions contain political fi.ndings 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 it.
In so far as such reports and resolutions contain purported state
ments or conclusions of fact, they might conceivably have been of some
assistance to the Court and the parties if it had been possible to place
reliance on them for reasonable accuracy. The very opposite is true,
however, as has been stated and as may be demonstrated by one ex
ample. General Assembly resolution 1702 (XVI) passed on 19 Decem
ber 1961, contained the following:
1
2 Vide 1, pp. 64-65, 69, 70-JI, 73-74, 76-79,83-84.
3 As, e.g., at 1, pp. r92-195.
Vide heading, 1,p. 33. SOUTH WEST AFRICA
4
:rNoting with increased disquiet the progressive deterioration
of the situation in South West Africa as the result of the ruthless
intensification of the policy of apartheid, the deep emotional resent
ments of ail African peoples, accompanied by the rapid expansion
of South Africa's military forces, and the fact that Europeans,
both soldiers and civilians, are being armed and militarily reinforced
for the purpose of oppressing the indigenous people, ail of which
create an increasingly explosive situation which, if allowed to con-
tinue, will endanger international peace and security 1." ·
This resolution proceeded to provide for the appointment of a special
committee on South West Africa, and charged it, inter alia,to attempt
to secure "Evacuation of ail military forces of the Republic of South
Africa !rom the Territory" 2•
During May 1962, the Chairman and Vice-Chairman of the Committee
on South West Africa visited the Territory as guests of Respondent.
They were invited to stay as long as they wished, to visit any part of
the Territory, and to speak to any person. At the conclusion of thcir
visit, they stated in a joint communiqué:
"... that in the places visited they had found no evidence and
heard no allegations that there was a threat to international peace
and sccurity within South West Africa, that there were signs of
militarisation in the territory, or that the indigenous population
was being extenninated 3".
It is apparent therefore that the factual assumptions on which the
said resolution of the General Assembly was ba.sed, were entirely falla
cious and were showil to be such as a result of the visit of the Chairman
and Vice-Chairman of the said Committee.
It isfurther apparent that no probative value can attach to purported
statements or conclusions of fact in the reports and resolutions, and
that to canvass thcm fully would be a lengthy process which could serve
no purpose in these proceedings. If the Court should, however, consider
that it could be assisted by such a canvassing, Respondent would gladly
co-operate in that regard at the oral stages of the proceedings. Mean
while, for the reasons given, the reports and resolutions will not be dealt
with to a greater extent than has been indicated.
g. It will be noted that in many instances Respondent does not quote
any published work or authority in support of statements made in the
succeeding volumes. In such cases, apart from facts which are so generally
and well known as to require no citation, the information is mostly
derived from Respondent's own official sources. Ifany doubt fa cast on
tht:accuracy of such information, or if the Court wishes it to be amplified
or explained, Respondent would willingly make the necessary evidence
available during the oral proceedings.
10. It may be convenient to give a brief account of the general scheme
of the Counter-Memorial. The present Book (Book !) contains, apart
from this introduction, varions matters of general importance, such as
1 G.A. Resolutfon 1702 (XVI), 19 Dec. 1961, in G.A., 0.R., Sixteenth Sess., Sup.
No. 17 {A/5100), pp. 39-40.
2 Ibid., para. 2 (b), p. 40.
3 U.N. Press Release GA/250I, 26 May 1962, Joint Statement on Pretoria talks
/ollowingvisil of U.N. Representativesto South WesJ A/rica. COUNTER-MEMORIAL OF SOUTH AFRICA
5
rr,aps of Africa 1and of the Territory 2 and Respondent's Submissions 3•
Book II consists of Respondent's legal argument (with necessary sup
porting facts) relating to the issues set out in paragraph 2 (a) and (b)
above. Book III contains background information relating to the geo
graphy, bistory and peoples of the Territory. Applicants' allegations
regarding breaches of Article 2 of the Mandate 4 are dealt with in Books
IV, V, VI and VII.
Book VIII contains Respondent's replies to Chapters VI, VII, VIII
and IX of the Memorials.
II. As indicated above, the present Book also contains Respondent's
Submissions on the charges made by Applicants. Save in regard to
Respondent's reply to Chapter V of the Memorials, Submissions are also
set out at the end of the various self-contained portions of the Counter
Memorial. In view, however, of the fact that Respondent's reply to
Applicants' Chapter V is spread over four books, no separate Sub
mission relevant to the said Chapter is contained elsewhere in this
Counter-Memorial.
1
Not reproduced.
2 Vide pocket in back caver.
3 Vide para. 11, infra.
• Vide I, pp.104 ff. CHAPTER II
SUBMISSIONS
Upon the basis of the statements of fact and law as set forth in the
several books of this Counter-Memorial, may it please the Court to
adjudge and declare that the Submissions of the Governments of Ethiopia
and Liberia as recorded at pages 197 to 198 of their Memorials are
unfounded and that no declaration be made as claimed by them.
In particular Respondent submits:
1. That the whole Mandate for South West Africa lapsed on the
dissolution of the League of Nations, and that Respondent is, in conse
quence thereof, no longer subject to any legal obligations thereunder.
2. In the alternative to (I) above, and in the event ofit being held that
the Mandate as such continued in existence despite the dissolution of the
League of Nations :
(a) Relative to Applicants' Submissions Nos. 2, 7 and 8:
that Respondent's former obligations under the Mandate to report
and account to, and to submit to the supervision of, the Cormeil
of the League of Nations, lapsed upon the dissolution of the League,
and have not been replaced by any similar obligations relative to
supervision by any organ of the United Nations or any other orga
nization or body. Respondent is therefore under no obligation to
submit reports conceming its administration of South West Africa,
or to transmit petitions from the inhabitants of that Territory, to
the United Nations or any other body;
(b) Relative toApplicants' Submissions Nos. 3, 4, 5, 6 and 9:
that Respondent has not, in any of the respects alleged, violated its
obligations as stated in the Mandate or in Article 22 of the Covenant
of the League of Nations.
(Sgd.} R. McGREGOR
(Sgd.) J. P. VERLOREN VAN THEMAAT
Agents of the Govemment of the
Republic of South Africa BOOK II
CHAPTER I
INTRODUCTION TO BOOKII
1. This book contains Respondent's reply to Applicants' Submissions
I, 2,7 and 8, in which they request the Court to declare the following
in law:
"1. South West Africa is a territory under the Mandate conferred
upon His Britannic Majesty by the Principal Allied and Associated
Powers, to be exercised on his behalf by the Government of the
Union of South Africa, accepted by His Britannic Majesty for and
on behalf of the Government of the Union of South Africa, and
confirmed by the Council of the League of Nations on December 17,
1920;
2. the Union of South Africa continues to have the international
obligations stated in Article 22 of the Covenant of the League of
Nations and in the Mandate for South \Vest Africa as well as the
obligation to transmit petitions from the inhabitants of that Terri
tory, the supervisory fonctions to be exercised by the United Na
tions, to which the annual reports and the petitions are to be sub
mitted;
7. the Union has failed to render to the General Assembly of the
United Nations annual reports containing information with regard
to the Territory and indicating the measures it has taken to carry
out its obligations under the Mandate; that such failure is a viola
tion of its obligations as stated in Article 6 of the Mandate; and
that the Union has the duty forthwith to render such annual
reports to the Gencral Assembly;
8. the Union has failed to transmit to the General Assembly of
the United Nations petitions from the Territory's inhabitants ad
dressed to the General Assembly; that such failure is a violation of
its obligations as Mandatory; and that the Union has the duty to
transmit such petitions to the General Assembly; 1"
2. Respondent does not dispute that it has in fact refused to render
ta the General Assembly of the United Nations annual reports such as
it was obliged to render to the Council of the League of Nations. Re
spondent equally does not dispute that it has refused to transmit to
the General Assembly petitions from the Territory's inhabitants a~
dressed to the General Assembly. Respondent denies, however, that It
was in law obliged to render such annual reports, or to transmit such
petitions, to the General Assembly. Applicants' Submissions 1; 2,7 and
8 therefore raise questions of law only, namely whether the Mandate
still exists, and, if so, whether the supervisory fonctions of the Council
1 Vide I,pp.95, 197-r98.8 SOUTH WEST AFRICA
of the LEague of Nations have passed to the United Nations. Respondent
contends that both these questions are to be answered in the negative
-and, indeed, that acceptance of this contention would dispose of the
whole of Applicants' case, which is based on the continued existence
of the Mandate 1•
3. The major part of this· Book consists of legal argument in support
of Respondent's aforesaid contention. It has been found desirable,
however, also to set out the historical events, which are, in Respon
dent's submission, relevant to a proper appreciation of its legal submis
sions. This tapie forms the subject-matter of the next Chapter.
4. In view of the overlapping of the issues now raised with those
dealt with in the Preliminary Objections, there is to some extent a
repetition in this Book of material which was contained in Respondent's
written Objections or its Oral Statement relative thereto. Consideration
was given to the possibility of incorporating such material into the
present argument merely by reference to its original source, and thus
to reduce the bulk of the Pleadings. It was decided, however, that the
advantages attendant upon following that course would be outweighed
by the inconvenience caused to members of the Court in having to gather
Respondent's argument in unco-ordinated bits and pieces from a num
ber of different sources. Consequently, although the measure of repeti
tion is regretted, this Book presents in one self-contained unit Re
spornlent's reply to Applicants' Snbmissions r, 2, 7 and 8.
l Vide Chapter V, Part A, para. r7(c), infra, CHAPTER Il
HISTORICALBACKGROUND
Introductory
1. This Chapter contains an account of the historical background to
the present proceedings, but only to the extent relevant to the legal
issues raised under Submissions Nos. r, 2, 7 and 8 at pages r68 and
169 of the Applicants' Memorials 1•The historical facts which are rele
vant only to the issues raised under Submissions 3, 4, 5, 6 and 9 in
the Applicants' Memorials-namely whether in its administration of
South West Africa Respondent has violated provisions of the Mandate
.:.2._adealt with elsewhere in the Counter-Memorial 2• For the sake of
convenience, particularly as regards replying to certain of the allega
tions by the Applicants in Chapter II of their Memorials, the subdivi
sions of that Chapter are broadly adhered to in this historical account.
In view, however, of the division of historical matter into the two parts
aforestated, Respondent will in this Chapter not deal with, or furnish
full replies to, those allegations and citations from reports which relate
to charges that Respondent has violated substantive obligations con
cerning the administration of South West Africa. These matters are, in
so far as is necessary, dealt with elsewhere in the Counter-Memorial 3•
Origin and Nature of the Mandate System
2. Although the term "mandate" had been used before in regard to
certain international relationships \ it first acquired a special meaning
in international law when the mandate system of the League of Nations
was instituted. This system originated, together with the League, from
the peace settlements effected after the First World War. As Quincy
Wright remarked:
"This system, like most other political innovations, was not a
product of disinterested juristic thought nor of detached scientific
investigation but was a compromise invented by the Versailles
5
statesmen to meet an immediate political dilemma ."
3. The dilemma which required resolution by compromise involved,
1 Vide Chap. I, supra.
2 Vide Book III et seqof the Counter-Memorial.
3 Vide Book III et seq.
• ln this respectvide Hall, H. D., Mandates, Dependencies and Trusteeship (1948),
pp. 17 ff. and "The Trusteeship System", B. Y.B.l.L.,Vol. XXIV (1947), pp. 44-46;
\Vright, Q., Mandates under the League of Nations (1930), pp. J5-23; Schneider, W ..
Dos V6lket't'echllicheMandat (1926),pp. 14 ff.; Mohr, E. G.Die Frage derSouveriiniliil
in den Ma>idatsgebieten (r928), p. 4; Temperley, H. \V. V., A History of the Peace
Con/erence of Paris (1920-1924), Vol. VI, p. 502; Kennedy, W. P. M. and Schlosberg,
H. ]., The Law and Custom of the South African Constitution (1935), pp. 514-515;
Rolin, H., "Le Système des Mandats Coloniaux", R.D.l., Vol. XLVII (1920),
pp. 356-357.
5 Wright, op. cit., p.3.IO SOUTH WEST AFRlCA
briefly, a clash of views and aspirations within the ranks of the Allied
and Associated Powers relative to the future of territories and colonies
conquered from enemy powers during the war.
4- Among such territories was German South West Africa, which
had been surrendered to South African military forces in July 1915,
as a result of which Respondent remained in military occupation for
the remainder of the war and thereafter pending the peace settlements.
Similar situations obtained in respect of other territories conquered and
occupied by other Allied and Associated Powers. These included, inter
alia, the former German colony in New Guinea, which was occupied
by Australia; that in Samoa, by New Zealand; the German islands in
the Pacifie Ocean north of the Equator, by Japan; and various German
territories elsewhere in Africa, by Great Britain, Belgium and France.
Further north, various portions of the Ottoman Empire were in Allied
occupation.
5. During the war, secret treaties and agreements were made between
some of the Allies whereby their respective daims to various occupied
territories were to be recognized in the event of an Allied victory. And
the British Imperia! \Var Cabinet decided in March 1917, that the
three Dominions, Australia, New Zealand and South Africa should be
allowed to annex the above-mentioned occupied territories, adjacent to
their own, namely German New Guinea, German Samoa and German
South West Africa respectively 1.
On the other band, certain proposais for international control of
conquered colonies, some of them even relating to all colonies 2, were
also made during the war years.
In 1918, G. L. Beer, historian, and adviser to President Wilson of
the United States of America, connected such proposais with others
then current for the establishment of the League of Nations. He pro
posed a mandate system for Mesopotamia and certain of the German
colonies, urging that the administration of these areas should be en
trusted to "different States acting as mandatories of the League of
Nations" 3• Beer considered, however, that the mandate system could
not be applied to South West Africa, and recommended that this region
be incorporated in the Union of South Africa •.
Like Beer, General Smuts, in the publication referred to by the
Applicants 5, linked a proposed mandate system with a proposed League
of Nations. He limited his proposai to "territories formerly belonging
to Russia, Austria-Hungary and Turkey", and expressly excluded the
1 Vide Lloyd George, D., The Truth about the Peace Treaties (1938), Vol. I, pp.
rr4-123 and Vol. Il, p. 766; Spiegel, M., Das Volkerrechtliche Mandat und seine
A nwendung au/ Paliislina (1928), pp. 8-9; Temperley, op. cil., Vol. I, p. 195; Logan,
R. W., The A/rican Mandates in World Politics (1948), pp. 1-2:Townsend, M. E,
The Rite and Fait of Germany's Colonial Empire (1930),pp. 363-369, 377-378.
2 Vidd Hobson, J, A., Towards International Government (1915). Vide also the
discussion by Patter, P. B., in "Origin of the System of Mandates under the Lcague
of Nations", A.P.S.R., Vol. XVI, No. 4 (.;,..ov. 1922),pp. 563-583.
3 Beer, G. L., A/rican Questions at the Paris Peace Conference, ed. by L, H. Gray
(1923),p. 431.
• Ibid.,p.443.
5 Smuts, J. C., The League of Nations: A Practical Suggestion (1918), p. 15 and
I, P-34- COUNTER-MEMORIAL OF SOUTH AFRlCA
II
"German colonies in the Pacifie and Africa", since in these cases "it
would be impracticable to apply any ideas of political self-determination
1
in the European sense" •
The United States of America was not a party to the secret treaties
and agreements mentioned above; she entered the war after most of
them had been concluded. At the termination of the war President
Wilson strongly advocated a policy of "no annexations"; and he went
to the Paris Peace Conference determined to secure application of the
proposed mandate system, in an extreme form, to all ex-enemy colo
nies and possessions. His proposais, as contained in his drafts of the
Covenant, included that the League would be vested with complete
authority and control, that it would be entiHed (not obliged) at its
discretion to delegate to a State or "organized agency" powers to act
"as its agent or mandatory", and also that by reason of an appeal
from the people of the territory the League could substitute some other
State or agency as mandatory 2• In keeping w_ith this conception, his
Third Draft proposed that the expenses of Mandatory Govemment
would, if necessary, be borne by ail the Members of the League 3.
6. From the above, the makings of conflict at the Paris Peace Con
ference will be manifcst. The future of the German Colonies was dis
cussed as from 24 January 1919 in the "Council of Ten", which consisted
of the heads of govemment and foreign ministers of the United States of
America, the United Kingdom, France, Italy and Japan. Representatives
of Australia, New Zealand and South Africa were allowed to be present
and to express their views at the discussions concerning the future
of the former German colonies in New Guinea, Samoa and South West
Africa.
There was fairly general agreement that a mandate system was to
be established. The controversy concerned the contents of such a
system, and particularly the peoples and territories to which it was to
be applied, especially inasmuch as there was general recognition of the
wide differences between the various peoples and territories concemed,
ranging from, on the one band, developed societies to, on the other,
peoples still living in the Stone Age 4•The representatives of the three
Dominions strongly pressed their cases for incorporation of the respec
tive territories, and were supported by the British Prime Minister, Mr.
Lloyd George. After representatives of Japan and France had also
spoken in favour of annexation in their cases, President \Vilson's re
action was so strong as to threaten "a break-up of the conference" 5 •
The Conference reached a state of apparent deadlock on 27 Janu
ary 1919. There followed negotiations behind closed doors for two
days, during which Lloyd George secured the agreement of the repre-
1
2Smuts, op. cit.pp. r2 and 15.
Vide particularlyparas. I, II and III of his Second Draft, as amended by his
Third Draft: Baker, R. S., Woodrow Wilson and World Settlement (1922-1923),
Vol. III, pp. roS-r10,126-129.
3 Ibid.,p. 127.
• Vide For. Rel.U.S.: The Paris Peace Conference, I9I9, Vol. 111, p. 786 Accord
ing to an articlein the United Nations Review of September 1954 (Vol. 1, No. 3,
p. 31), the people in some parts of New Gninea still live "in Stone Age conditions
of primitive savagery". Vide atso Vol.2, No. 3 (Sep. 1955). p. 34-
, Lloyd George, op. cit.Vol. I, p. 530 I2 SOUTH WEST AFRICA
sentatives of the Dominions ta a document which he handed in as a
proposai to the Conference on 30 January, announcing that it-
"did not represent the real views of the Colonies [Dominions]; but it
had been accepted by them as an attempt at a compromise ...
because they fully realized that there could be no greater catastrophe
than for the delegates to separate without having corne to a definite
decision'' 1•
He also stated that "... it was only with the greatest difficulty that the
representatives of the Dominions had been prevailed upon to accept
the draft submitted, even provisionally"; and later "... they had
2
accepted his proposais, but only as a compromise" . The document
contained provisions which, with unimportant alterations and one
important addition 3,eventually became Article 22 of the Covenant •. Its
essential feature, as Lloyd George explained, was the division of mandates
into three classes in recognition of the wide range of differences between
the varions communities and territories. He described the third of these
classes (the eventual C Mandates) as:
"Mandates applicable to countries which formed almost a part of
the organization of an adjoining power, who would have to be ap
5
pointed the manda tory ." (Italics added.)
It was in this category that German New Guinea, German Samoa and
German South West Africa were to be put.
President Wilson indicated that the document "made a long stride
towards the composition of their differences", but at the same time
suggested deferment of a decision. A somewhat heatcd discussion en
sued in which the Prime Minister of Australia rendered clear that
Australia really desired "direct control" and that for his country and
New Zealand the document "represented the maximum of their con
cession" 6.A speech, generally described by commentators as "concilia
tory", was then made by the South African Prime Minister, Gcneral
Botha, in which he stated, inter alia:
"He appreciated the ideals of President Wilson.... They must
remember that their various peoples did not understand everything
from the same point. ... Personally he felt very strongly about the
question of German South West Africa. He thought that it differed
entirely from any question they had to decide in this conference, but
he would be prepared to say that he was a supporter of the document
handed in that morning [by Lloyd George], because he knew that, if
the idea fructified, the League of Nations would consist mostly of
the same people who were present there that day, who 1tnderstood the
position and who would not make it impossible for any mandatory to
govern the country. That was why he said he would accept it'."
(ltalics added.)
Alter further discussion, President Wilson agreed to accept the pro-
1
For. Rel. U.S.: The Paris Peace Conference, I9I9, Vol. III, p. 785.
2 Ibid., p. 790.
3 Para. g of Art.22, concerning the Permanent Mandates Commission.
4 For text vide For. Rel. U.S.: The Parù Peace Con/erence, I9I9, Vol. Ill, pp.
795-796.
~ Ibid., p. 786.
6 For. Rel. U.S.: The Paris Peace Conference, 1919, Vol. IIIp. 800.
1 Ibid .. pp. 801-802. COUNTER~MEMORIAL OF SOUTH AFRICA 13
posai, which was then adopted, with very minor amendments 1• In
2
its eventual form, as Article 22 of the Covenant •it became part of the
Treaty of Versailles, which was signed on 28 June 1919, and came into
force on IO January 1920.
7. The main elements of the compromise embodied in Article 22
of the Covenant are rendered clear by the above historical background.
As was commented generally by M. Rappard, Secretary and subse
quently member of the Permanent Mandates Commission: "The tenus
of the compromise were obvious: President Wilson succeeded in prevent
3
ing annexation; the conquerors in retaining their conquests ."
More particularly, in retum for the concession that all the German
Colonial possessions were brought into the mandate system, President
Wilson had to abandon certain of the extreme aspects of his proposais
concerning League supremacy and control and the consequent payment
of expenses of mandate administration by League Members. All Man
datories were to be States, not "organized agencies". The mandates
were to be allocated by the Principal Allied and Associated Powers
(not the League), and at any rate in the case of the C Mandates the
allocation "would have to be" to the adjacent claimant States 4• The
relationship between the League and Mandatories was in each case
regulated by a mandate instrument, the tenus of which were assented
to by the Mandatory and would normally require its consent for altera
tion 5• Ail this was very far removed from the envisaged free League
discretion to appoint and change Mandatories. Again in the case of C
Mandates, the Mandatories were to have powers to administer the terri
tories "as integral portions" of their own. And there would be no ob
jection to eventual amalgamation that could naturally result from such
administration, if agreed to by the inhabitants. At the Peace Conference
President \Vilson stressed that-
"It was up to the Union of South Africa to make it so attractive
that South West Africa would corne into the Union of their own free
will. ... If successful administration by a mandatory should lead to
6
union with the manda tory, he would be the last to object .... " ;
and later he said that "if South Africa managed South West Africa as
well as she had managed her own country, then she would be married to
South West Africa" 7•
1 l\liller, D. H., The Dra/ting of the Covenant (1928), Vol. II, pp. 213-228.
2 A draft clause on mandates was introduced by Smuts at the Sixth Meeting of
the League of Nations Commission on 8 February 1919. Asto amendments to this
draft made in the Leaguc Commission, vide l\Iiller, op. cil.,Vol. 11, pp. 283, 285,
306, 314-315, 323, 333-334, 362, 384-385 and 679-680. At the Sixth Meeting, an
attempt was made to insert the word "if" between the words "as" and "integral"
in the provision re!ating to C Mandates, which read, "South West Africa and
certain of the islands.inthe South Pacifie ... can be oost administercd under the
laws of the Manda tory State as integral portions thereof". After discussion, the
word "if" was not inserted. Vide Milier, opcit.,Vol. I, pp. 186 and 190 and Vol.li,
pp. 273, 275 and 286.
3 Rappard, W. E., "The Mandates and the International Trusteeship System",
Varia Politica (1953), p. 182.
• Vide Lloyd George's statement on 30 January 1919, para. 6, supra.
5 Vide Art. 7 of the Mandate forGerman South-\Vest Africa.
6 For. Rel. U.S.: The Pal'is Peace Con/erence, r9r9, Vol. III, pp. 741-742.
7 Ibid., p. 788. SOUTH WEST AFRICA
Finally, the "open door" principle of equal trade opportunities for
Members of the League, although originally envisaged for ail Mandates,
1
was excluded in the case of C Mandates . This exclusion was sub
sequently referred to by Lord Milner, Chairman of the Commission
appointed to frame draft Mandates 2,as "a compromise actuallyaccepted
by the Powers" 3•
8. In view of the above features, cornmentators quite naturally re
ferred to C Mandates as being in their practical effect not far removed
from annexation.
Thus, during the First Session of the Permanent Mandates Commis
sion, Mr. Ormsby-Gore, the United Kingdom member, stated: "... this
case of South West Africa was, indeed, a typical example of the complete
political incorporation of a mandated territory in the territory of the
mandatory Power" 4•
Margalith wrote:
"It has been found necessary, also, to devise three types of
administration, and to give in the case of C Mandates, powers
that amount nearly to annexation. Otherwise the British Dominions
could not have been won over to the acceptance of the mandates
principle at all 5."
When introducing the Peace Treaty in the British House of Commons
on 3 July 1919, Lloyd George stated:
"... South West Africa, running as it does side by side with Cape
Colony, was felt to be so much a part, geographically, of that area
that it would be quite impossible to treat it in the same way as you
would a colony 2,000 or 3,000 miles away from a centre of adminis
tration. There is no doubt at all that South West A/rica will become
an integral part of the Federation of South Africa. It will be colonized
by people from South Africa. You could not have done anything else.
You could not have set customs barriers and have a different system
of administration 6." (Italics added.)
And Temperley wrote:
"Clearly the development of this territory must in the main corne
from the adjoining Union of South Africa, and its progress would be
seriously handicapped if it were administered as a distinct entity with
separate native, fiscal, and railroad policies. As, however,it was /eared
that an exception made in one case-no matter how valid it might be
--might open the door to others, a general application of the system
was insisted upon. This had some unfortunate consequences since,
mainly in order to meet the special circumstances in South Africa, a
broad formula had to be adopted which was not completely satisfac
tory as far as other areas were concemed 7.''(Italics added.}
1 Vide final words of Art. 22 (6).
2 Vide para. r r,infra.
3Conférencede la Paix r9r9-r9zo, Recueil des Actes de la Conférence,Partie VI,
Traités avec les Puissances Ennemies mis en vigueur, A, Préparation de la mise en
vigueur, zer Fasc., p. 353.
4P.M.C., Min., I, p. 17.
5Margalith, A. 1\1.The International Mandates (1930), pp. 33-34.
6Temperley, op. cit.Vol. III, p. 95.
1 Ibid.,Vol. II, pp. 233-234. COUNTER-MEMORIAL OF SOUTH AFRICA rs
9. It will be observed from the aforegoing that considerable over
simplification, tending towards a wrong impression, is involved in the
Applicants' statement in their Memorials that:
"The Mandate System, as ultimately given expression in Article 22
of the Covenant of the League of Nations and in the several Mandate
Agreements, represented a victory for the opponents of the principle
of annexation 1."
A compromise can hardly be regarded as a victory for either side.
By itself, the Applicants' over-simplification may be unimportant. But
certain other statements by them demonstrate that negation of the sig
nificance of the compromise could lead to erroneous conclusions.
So, for example, it is unsafe to assume that the mandates system as
finally agreed upon, and particularly as regards C Mandates, could be
interpreted in terms of quotations from General Smuts' publication.
The quotations set out by Applicants at I, p. 33, relate to a proposed
system which the author considered to be totally inappropriate for those
territories which eventually became C Mandates 2 and which could only
be accommodated in a specially adapted system, agreed to by way of
compromise.
Similarly there is no justification for Applicants' expression "so
striking a reversai of concept" 3,as applied to a 1920 speech by General
Smuts in which he, in common with the commentators mentioned in
paragraph 8 above, spoke of the relationship betwcen the Union and
South West Africa as being, in effect, close to annexation.
These and other attempts in the Memorials to disparage policies
directed towards doser assimilation between South Africa and the
Territory as being somehow in conflict with duties undertaken by Re
spondent, will be dealt with in another part of this Counter-Memorial.
Here Respondent merely wishes to stress that they do not accord with
the expressed intentions of the statesmen who created the mandate
system. Respondent accepted the obligations which the Mandate for
South West Africa involved for it; and it has always regarded compliance
with those obligations as being a matter of importance-according to
their letter and spirit during the lifetime of the League, and according
to their spirit thereafter. But it resents and resists attempts at the uni
lateral imposition upon it of suggested duties which were excluded from
those undertaken, and which would amount to a repudiation of the
compromise whereby Respondent was induced to agree to the mandate
system being rendered applicable at all to the case of South West
Africa.
The Framing of the Mandate for South West Africa
JO. In terms of Articles n8, n9 and 257 of the Treaty of Versailles,
Germany renounced all rights in or over her colonial possessions in
favour of the Principal Allied and Associated Powers.
On 7 May 1919, thus even before the Treaty of Versailles was signed *
the Council of Three, represented by M. Clemenceau, President Wilson
1 Vide I,p. 33.
2 Vide para. 5, supra.
3 Vide I, p. 38.
• The Treaty was signcd on 28 June 1919 and came into force on 10 Jan.1920. r6 SOUTH WEST AFRICA
and Mr. Lloyd George, announced that they had decided on 6 May as
to the disposition of the former German Colonies, inter alia, as follows:
"German South West Africa: The Mandate shall be held by the Union
of South Africa 1."
II.Before the end of the Paris Peace Conference of 1919, a Mandates
Commission was established and was instructed by the Supreme Council,
inter alia: "To give attention to the editing of draft mandates:.:." (Trans
.lation.)
The Commission, under the chairmanship of Lord Milner, met for the
first time on 28 June 1919, when a draft C Mandate was submitted for
3
discussion by Lord M.ilner • At its next meeting on 8 July 1919 the
Commission had for discussion, in addition to the draft C Mandate, also
two draft B Mandates submitted respectively by France~ and the United
States of America 5• On the next day, g July r9r9, the Commission,
aftcr discussion and consideration of the two B drafts, approved terms
as a pattern for B Mandates. On 10 July 1919, the Commission resumed
consideration of the C draft, which had meanwhile been altered in
certain respects, and approved terms as a pattern for C Mandates.
On the basis of the Commission's decisions and recommendations,
draft mandate instruments were eventually prepared by the legal experts
of the Drafting Committee of the Peace Conference. These drafts were
first cast in the form of conventions 6 and the intention had originally
7
been that such conventions should form annexes to the Peace Treaty •
By the time they were submitted to the Council, as to be recounted be
low, they had, however, been recast in the form of Council resolutions.
12. It was in the deliberations of the above-mentioned Mandates
Commission that a proposa! for a compromissory clause in the man
date first came to be discussed. In view of certain questions to be con
sidered in argument regarding the scope and purpose of the compromis
sory clause in the Mandate for South West Africa, it may be convenient
to indicate briefly the relevant history of the clause in the Mandates
Commission.
Neither Lord Milner's original C draft nor the French B draft con
tained any compromissory clause. The United States B draft, however,
provided in considerable detail for commercial and other rights for
State Members of the League of Nations and their nationals, such as:
(a) the open door policy in trade and commerce for the benefit of
subjects of member States (Art. 5);
(b) freedom of religion and rights of missionaries who were nationals
of member States (Art. 6);
(c) equal opportunity in commerce and navigation for member States,
and prohibition of discrimination between the subjects of mcmber
States (Art. 7);
(d) concessions in respect of railways, post offices, telegraphs, radio
1 For. Rel. U.S.: The Paris Peace Conference, I9I9,Vol. V, p.508.
2 Conférencede la Paix I9r9-1920, Partie VI, A, 1erFasc., p. 327.
3 Ibid., pp. 329-330.
• Ibid .. pp. 343-345.
) Ibid., pp. 339-342.
6 Ibid., pp. 399-416 (Annexes Il to VIII).
1 Vide Report by M. Hymans to the Council of the League of Nations,L. of N.,
O.J.,1920, No. 6, pp. 335, 338. COUNTER-MEMORIAL OF SOUTH AFRICA I7
stations and other public works or services, without distinction
between subjects of member States (Art. 7a);
(e) a clause in the nature of a most-favoured-nation provision to
operate in favour of member States and their subjects (Art. 7b).
And it proceeded to provide for adjudication in the following terms:
"If any dispute should arise between the Members 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 International Justice which
is to be established by the League of Nations.
The subjects or citizens of States Members of the League of
Nations may likewise bring daims concerning infractions of the
rights conferred on them by Articles 5, 6, 7, 7a and 7b of this
Mandate before the said Court for decision. The judgment rendered
by this Court will be without appeal ïn both the preceding cases and
will have the same effect as an arbitral decision rendered according
to Article r3 of the Covenant." (Art. r5.) (Translation.)
In its consideration of the B drafts on g July rgrg, the Commission
took as a basis for discussion the French draft, clause by clause. But
inasmuch as the provisions in the French draft for rights to be conferred
upon rnernberStates and their nationals were cast in broad terms only,
the question arose whether more detailed stipulation such as contained
in the United States draft was not to be preferred. In this regard Lord
Robert Cecil, a representative of the British Empire, is reported to have
stated as follows: .
"[He] thought that that question was linked with the right of re
course to the International Court. If the right of recourse were to
be granted, it wouid be preferable merely to lay down the principle
of equality and leave it to the Court to apply the principle to
particular cases .... If, on the other hànd, no right of récourseto the
Court was to be given, it would be necessary to elaborate stipulations
in detail'." (Translation.) (Italics adde_d.)
Thereupon consideration was given to the adjudication clause in the
United States draft. Both the representative of France and the Chair
man of the Commission, Lord Milner, were .opposed to the idea of
rendering the proposed recourse to an international court available to
individuals, Lord Milner stating, inter alia:
"He [Lord Milner] thought that there would certainly be advan
tage in transferring the settlement of questions such as those relating
to rights of proPerty from the political to the legal sphere, but he re
quested that the Govemmerit which was to dccide whether a daim
should be2submitted to the Court should undertake responsibility
therefor ." (Translàtion.) (ltalics added.) · ·
Lord Robert Cecil then suggested that the second paragraph of the
compromissory clause should read:
"The !\.Iernbersof the League of Nations will also be entitled on
behalf of their subjects or citizens to referdaims for breaches of their
rights ... 3" '
1
2 Conférence de la Paix r9r9-r920,Partie VI, A, 1erFasc., p. 348.
3 Ibid., p. 349.
Ibid., p. 350.rS SOUTH WEST AFRICA
This suggested alteration met with the approval of the representative
of the United States, and was adopted. The Commission then reverted
to the French draft, and tentatively approved, with some amendments,
its provisions for rights of member States and their nationals. Thus the
reference to "Articles 5, 6, 7, 7a and 7b" in the adjudication clause
was omitted.
When the Commission thereafter considered the draft for C Mandates,
that draft had been amended, inter alia, by providing for the first time
for freedom of entry and residence on the part of missionaries who
were nationals of Members of the League, and, also for the first time,
for a compromissory clause in terms of the first paragraph of the United
States draft clause for B i\fandates 1•
ln the process of further drafting the second paragraph as approved
by the Commission for B Mandates was also omitted from all B Man
date instruments save that for Tanganyika. The reason for such elimi
nation seems evident: once it was decided that only States should have
recourse to the International Court, the second paragraph in the adju
dication clause became redundant, its provisions being in effect em
braced in the first paragraph. The rcason for the retention of the second
paragraph in the mandate instrument for Tanganyika, cannot be
established with ccrtainty2.
As indicated abovc, all discussion in the Commission regarding the
compromissory clause was concerned with its operation relative to
prospective provisions for rights and privileges to be accorded to mem
ber States and their nationals: the record reveals no discussion indicating
contemplation of possible operation of the compromissory clause in any
other respect or for any other purpose.
The wordü,.1gof the clause as it appeared in all the draft mandate
instruments eventually submitted to the Council of the League for its
approval (except in the case of the Mandate for Tanganyika) was as
follows:
"... if any dispute whatever should arise between the Members of
the League of Nations relating to the interpretation or the applica
tion of these provisions which cannot be settled by negotiation,
this shall be submitted to the Permanent Court of International
Justice provided for by Article 14 of the Covenant of the League of
Nations 3".
13. Transmission of the draft mandates to the Council of the League
was delayed because of a difference of opinion among the Membcrs
of the Commission regarding the question whether the open-door prin
ciple was to be applicable in the case of the C Mandates~.
On S August 1920 the Council of the League of Nations considered
and adopted a very full report by M. Hymans concerning the mandate
1 Quoted supra. Vide Conférencede la Paix r9r9-r920. Partie VI, A, 1erFasc., p.
342 -
2 Vide in this regard the explanationsuggested by Judges Sir Percy Spcnder and
Sir Gerald Fitzmaurice in South West Africa, Preliminary Objections,judgment,
I.C.J. Reports r962,pp. 559-56o.
3 E.g., Art. 7 of the Mandate for German South-West Africa.
• Vide Wright, op. cit.pp. 47-48, 50; Temperley, op.cil., Vol. II. pp. 237, 239;
Hall, op. citp. 136; House, E. M. and Seymour, C. (eds.), What Real/y Happened
at Paris (1921), pp. 227, 440. COUNTER-MEMORIAL OF SOUTH AFRICA
system 1. After giving a summary of the main aspects of the system,
the report dealt with measures to be taken to apply it, measures already
taken by the Principal AHied and Associated Powers and the Mandates
Commission, and measures which the Council should take. It pointed
out that the right to allocate mandates belonged to the Principal Powers.
Since, however, the Mandatory would govern in the name of the League
of Nations, the allocation should be confirmed by the League.
The next issue was the determination of the terms of the mandates.
M. Hyrnans pointed out that this question was only partially solved
by Article 22 (8) of the Covenant, since most of the mandates would
contain rnany provisions other than those relating to the degree of
authority. As regards Article 22 (8) he concluded:
"It seems to me that the real explanation of paragraph 8 of
Article 22 is as follows. When this Article was drafted in January
1919, its authors supposed that the conventions dealing with the
Mandates could certainly be included in the Treaty itself, or fonn
annexures to it. It was also thought at that time that only the
Allied and Associated Powers would be considered as Original
Mernbers of the League of Nations. In other words, that on the day
of its foundation they would be its only Members. It was, therefore,
intended in using the words 'the Members of the Leaguc' to refer to
2
all the signatories except Germany of the Treaty of Versailles ."
The report proceeded:
' ·"How is paragraph 8 to be applied to the present moment? It
is in practice almost impossible to apply literallv the procedure
which we have just defined. How could the assent of all those
signatories of the Treaty of Versailles who are Members of the
League be obtained?
Has not the Council now the right to takc cognizance of the
absence of any Convention such as is referred to by the Covenant
and itself to regulate the degree of authority or administration of
the Mandatory Power?
This right appears theoretically incontestable, but one which
would not be opportune to exercise. We must bear in mind, indeed,
that in the 'A'Mandates the degree of authority must vary according
to the population of the rnandated territories and according to
who is the Mandatory Power. In these circumstances and as far as
these Mandates are concerned, the Council should in any case
wait until the Powers have arrived at a decision with regard to
the appointment of the Mandatory Power and the delimitation of
the territories.
Moreover, the examination of the degree of authority to be con
ferred presupposes somewhat specialized knowledge; with regard to
'B' and 'C' Mandates, the· Council would probably consider that
it could not make a pronouncement until it should have taken the
opinion of experts, appointed by it. Would it not be more reason
able to take advantage of the work which has already been accom
plished by the experts of the Principal Powers. 1 propose, therefore,
to ask these Powers at the same time as they acquaint us with their
1L. of N., O.].1920 (No. 6). p334,
2 Ibid., p338. 20 SOUTH WEST AFRICA
decision as to the Mandatory Power, to infonn us of their proposals
with regard to the terms of the Mandate to be exercised 1." (Italics
added.)
The resolution proposed by M.Hymans wasalsounanimously adopted by
the Council (on 5 August 1920). It read as follows (inso far as is relevant):
"(i) The Council decides to request the principal Powers to be so
good as to (a) name the Powers to whom they have decided
to allocate the Mandates provided for in Article 22; (b) to
inform it as to the frontiers of the territories to corne under
these Mandates; (c) to communicate to it the terms and the
conditions of the Mandates that they propose should be adopted
by the Council from following the prescriptions of Article 22.
(ii) The Council will take cognizance of the Mandatory Powers
appointed, and will examine the draft Mandates communicated
toit, in order to ascertain that they conform to the prescriptions
of Article 22 of the Covenant.
(iii) The Council will notify to each Power appointed that it is in
vested with the Mandate, and will, at the same time, commu
2
nicate toit the terms and conditions ."
14. According to the l'l'Gnutesof the Council of 14 December 1920,
Mr. Balfour, the United Kingdom representative, on that date, handed
in draft mandates proposed by the British Govemment for a certain
3
number of terri tories, including South West Africa • The Council re
ferred these drafts to the Secretariat of the League: "... to consider
the Mandates and to consult other legal experts on any points which
they considered necessary" 4•
15. On 17 December 1920 the Council considered a memorandum
prepared by the Secretariat and containing suggestions for amendment
in certain respects of the draft mandates handed in by Mr. Balfour 5•
The Council accepted the suggested amendments, confirmed, inter
alia, the Mandate for South West Africa, and defined its terms.
Those portions of the text of the Balfour draft mandate for South
West Africa which were amended are here quoted in juxtaposition to
the text thereof as amended and adopted by the Council resolution of
17 December 1920.
The Balfour draft mandate for T ext as amended and finally
German South West Africa adopted
submitted for approval
Insertion· of a fourth paragraph
to the preamble.
"Whereas, by the aforemen
tioned Article 22, paragraph 8, it
1 L. of N., O.]., 1920 (No. 6), pp. 338-339.
2 Ibid.,pp. 340-34 r. Vide also Wright, op. cit.pp. I09-II2; Hall, op. cii.p. 146.
3 L. of N., O.].,1921 (No. 1),p. r r. A photostatcopy of the mandate instrument
handed in by Mr. Balfour was transmitted by the Agent of the Government of the
Republic of South Africa to the Registrar of the Court under cover of a letter dated
24 Oct. 1962.
4 L. of N., O.]., 1921 (No. 1), p. 12. ·
' Ibid., Hall, op. cii., p. 153. COUNTER-MEMORIAL OF SOUTH AFRICA 2I
is provided that the degree of
authority, control or administra
.tion to be exercised by the Man
datory not having been previous
ly agreed upon by the Members of
the'League, shall be explicitly de
fined by the Council of the League
of Nations:
"The Council of the League of [Tbe Council of the League of
Nations ... Nations ... ]
Hereby approves of the terms Confirming the said Mandate,
of the Mandate as follows:- defi.nesits terms as follows:
ARTICLE 7 ARTICLE 7
The consent of the Council of The consent of the Council of
the League of Nations is required the League of Nations is required
for any modification of the terms for any modification of the terms
of the present illandate, provided of the present Mandate.
that in the case of any modifica
tion proposed by the Mandatory,
such consent rriaybe given by a
majority.
. If any dispute whatever should The Mandatory agrees that, if
arise between the Members of any dispute whatever should arise
the League of Nations relating to between the Mandatory and an
the interpretation or the applica other Member of the League of
tion of these provisions which Nations relating to the interpre
cannot be settled by negotiation, tation or the application of the
this dispute shall be submitted provisions of the Mandate, such
to the Permanent Court of Inter dispute, if it_cannot be settled by
national Justice provided for by negotiation, shall be submitted
Article r4 of the Covenant of the to the Permanent Court of Inter
League of Nations." national Justice provided for by
Article r4 of the Covenant of the
League of Nations."
r6. The reasons for the insertion of the fourth paragraph of the
preamble and for the amendment of the text of Article 7 are explained
in a report to the Council of the League by Viscount Ishii on 20 February
1922 1•
According to the Ishii report, the fourth paFagraph of the preamble
was mserted- ·
"... to define clearly the relations which, under the terms of the
Covenant, should exist between the League of Nations and the
Councilon the one hand, and the mandatory Poweronthe other ... 2''
The proviso to the first paragraph of Article 7 was d~leted-
"... because it [the Council] did not think it advisable to consider
1
2L. of N., O.].,1922 (No. 8, Part II),pp.849 ff.
Ibid.,p. 850. .22 SOUTH WEST AFRICA
the possibility of altering the terms of a mandate by a decision
taken on a majority vote 1".
And the amendment of the compromissory clause in Article 7-
"... was inspired by the consideration that Members of the League
other than the Mandatory could not be forced against their will
to subrnit their differences to the Permanent Court of International
Justice 1".
The League of Nations Period
17. The fonctions of the League of Nations in respect of mandates
were exercised by the Council, the Assembly and the Permanent Man
dates Commission.
18. The Council was the body to which every Mandatory was ulti
rnately accountable. It was to the Council that the Mandatories had to
2 3
render annual reports ,to its "satisfaction" •
The Council alone had the power to take decisions and address re
cornmendations to the Mandatories 4•
Article 4 of the Covenant entitled any Member of the League not
represented on the Council "to send a Representative to sit as a rnember
at any meeting of the Council during the consideration of matters
specially affecting the interests of that Member". This provision enabled
a Mandatory to be represented when the Council considered matters
relating to its own mandate and to mandates in general.
In terms of Article· 5 of the Covenant, dedsions of the Council re
quired "the agreement of all the Members of the League represented
at the meeting". (Italics added.) Whether a Mandatory could exercise
its vote in the Council in such a way as to frustrate the unanimous
view of all the other Members on a matter affecting its own mandate,
was never raised. In fact no occasion on which there was such a division
of votes ever arose; all Council decisions concerning mandates were
taken unanimously 5• In this connection Jennings states that the "invar
iably careful and even elaborate avoidance of an adverse vote frorn the
Mandatory" in the Council is "difficult to understand unless one may
assume at any rate the possibility of a veto in the Mandatory
State" 6•
19. The Assembly derived its powers in respect of mandates from
Article 3 of the Covenant in terms of which it could "deal at its meet
ings with any matter within the sphere of action of the League ... ".
At the First Assembly a "working basis" was, however, decided on
according to which-
1L. of N., O.]., 1922 (Part II) p.·s54.
2 Art. 22 (7).
3 E.g., Art.6 of tne Mandate for South West Africa.
• Vide The Mmzdates System-Origin-Principles-Application (1945), p. 35:
Hall. op. cil., p. 174; P.M.C., Min., 1,p. 5.
5 Vide Voting Procedure on Questions relating to Reports and Petitions concerning
theTerritory ofSouth West Africa, AdvisoryOpinion, I.C.J. Reports r955, pp. H?O·IOL
(udge L'auterpacht's separate opinion )
6 Jennings, R. Y., "The International Court's Aqvisory Opinion on the Voting
Procedure on Questions concerning South-\Vest Africa", in Grotius Soc., Vol. 42
(1956),p. 92. COUNTER-MEMORIAL OF SOUTH AFRICA 23
"Neither body [i.e.. the Assembly or the Council has JUrisdiction
to render a decision in a matter which by the Treaties or the Cov
enant has been expressly committed to the other organ of the
League. Either body may discuss and examine any matter which
is within the competence of the League ."
Thus, in respect of mandates, the Assembly's role was confined to:
". . . the exercise ol a certain moral and very general influence hi
this domain. Its function may be said to be to main tain touch
between public opinion and the CounciI2".
20. The Permanent Mandates Commission was instituted by the
Council on 29 November 1920, pursuant to the provisions of Article
22, paragraph 9, of the Covenant, in terms of which its functions were
"to receive and examine the annual reports of the l\fandatories and to
advise the Council on all matters relating to the observance of the
mandates''.
Article 22 of the Covenant did not make provision for petitions
from inhabitants of mandated territories, nor did the mandate instru
ments do so. Petitions were, however, sent to the Permanent Mandates
Commission, and as a result the Council, at its 23Td session in 1923,
framed rules relating to the procedure to be adoptcd with regard there
to. In terms of these rules, petitions from "communities or sections of
the populations of mandated areas" were to be submitted only through
the .Mandatory concerned, which would be entitled to attach "such
comments as it might think desirable". Petitions "regarding the inhabi
tants of mandated territories received ... from any source other than
that of the inhabitants themselves", were to. be addressed to the Chair
man of the Commission who had to decide whether they should be
regarded as "claiming attention". If so, the Mandatory concemed was
then to be asked for its comments thereon •
The question whether the Permanent Mandates Commission was
entitled to grant oral hearings to petitioners was raised on several
occasions in the organs of the League, especially during the years 1926-
1927, when a proposai for such hearings "in certain cases" met with
considerable opposition. When the views of the mandatories were
sought in regard thereto, they unanimously expressed their opposition,
with the result that the Council on 27 March 1927 decided that~
"there is no occasion to modify the procedure which has hitherto been
4
followed by the Commission in regard to this question" •
In constituting the Permanent Mandates Commission, the Council
decided, inter alia, that it was to consist of nine memhers 5, the
majority to be nationals of non-Mandatory States. It further provided
that-
"All the Members of the Commission shall be appointed by
the Council and selected /or their personal merits and competence.
They shall not hold any office which puts them in a position of direct
1 L. ofN.• Assembly, Rec..I, p. 320.
2 The 1'\fandatesSyslem--Origin-Principles-Application,p. 35.
3 L. ofN., O.]., 1923 (No. 3)p.300.
• Ibid., 1927 (No. 4)p.348.
' Later increased to ten and then to eleven.24 SOUTH WEST AFRICA
1
dependence on their Governments white members of theCommission ."
(Italics added.)
The Permanent Mandates Commission was described as
"essentially an advisory body-a body whose duty it is·to examine
and report-designed to assist the Council in carrying out its task.
Its work is prëliminary in character. Constitutionally, it has no
power to take decisions binding on -the manda tory Powers. or to
address direct recommendations to them. Its conclusions are not
2
final until they have.been approved by the Council ."
The Commission itself realized and stated that, having adopted the
rule of "absolute independence and impartiality", its Members should
exercise their authority "less as judges from whom critical pronounce
ments are expected, than as collaborators who are resolved to dev3te
their experience and their energies to a joint endeavour" •
Although its powers were purely advisory, the Commission developed
into an effective institution. ln this connection l\'IRappard-at first
Secretary and later for a long time a Member of the Commission
stated:
"As the Commission, thanks to the persona! competence and
generally recognized independence of its members, came to enjoy
a real respect and, indeed, quite some pre·stige, an international
or rather a supernational moral allthority sprang up. . .. In its
capacity a~ a purely advisory body ... the Permanent Mandates
Commission had no powers of coercion whatever. As a universally
esteemed group of impartial and independent experts, however,
its powers of persuasion were indisputably very effective. No
Mandatory government . . . could afford to disregard its advice
for fear of no other sanctions but those of public and parliamentary
opinion.
The net result was a willing co-operation between the League
and the Mandatory governments, and the enhancement of the stan
dards of administration in the mandated territories and even, by
a natural repercussion, in colonial administration everywhere 4."
2I. There was at all times cordial co-operation between Respondent
and the Permanent Mandates Commission. On occasion differences of
opinion arose-as was the case also with regard to other mandated
territories-but this was inevitable in view mainly of uncertainties and
obscurities in a:new system, operating under the somewhat vague terms
of the compromise embodied in Article 22 of the Covenant. And with
both Respondent and the. Commission approaching their task in the
spirit of that. compromise, the problems which arose were always satis
factorily solved.
Applicaµts' Memorials, on the other hand, contain statements and
allegations .suggesting strife between Respondent and the Commission,
and even a "hostile" attitude towards the Commission on Respondent's
1 L. of N., O.].,1920 (No. 8),p. 87.
2 The 1v.fandatesSystem-Origin-Principles-Applica#on, p. 35. Vide also van
Asbeck, F.M., "International Law and Colonial Administration", in Grotius Soc.,
Vol. 39 p953), p. 14.
3 L. of N., O.].,192r (Nos. 10-12),pp. II24-1125.
4 Rappard, Varia Politica,p. 184. COUNTER-MEMORIAL OF SOUTH AFRICA 25
part. These allegations and suggestions are unfounded, as will appear
from doser scrutiny of the facts to which they relate.
22. At I, page 37, Applicants state as follows:
"Annual reports called for in Article 6 of the Mandate for South
West Africa were for aïime submitted by the Union to the Council
of the League of Nations, beginning with a report for 1919."
(Italics added.) ·
Respondent finds it difficult to appreciate why such language should
be used, when the true facts are that Respondent regularly submitted
annual reports until 1940, after the outbreak of the Second World War,
which brought about a cessation of all reporting by Mandatories and
of meetings of the Commission.
23. The Applicants state at I, page 37, that "the Union was not at
first overtly hostile towards the Permanent Mandates Commission".
Respondent denies the implication that it was at some time hostile,
overtly or otherwise, towards the Commission. On the contrary, there
is abundant evidence to show that despite occasional divergencies of
view regarding specific matters, Respondent's attitude throughout was
one of friendly co-operation.
So, for instance, Respondent was the first of ail the Jl1andatories to
be represented at the discussions of the Permanent Mandates Commission
by the officer "personally responsible for the administration" of the
mandated territory, namely the. Administrator of South West Africa
-which action the Council particularly appreciated and commended
to other Mandatories 1.
At Respondent's invitation, the Chairman of the Commission visited
South West Africain 1935 and made an extensive tour of the Territory.
As far as is known, this was the only occasion on which a Member of
the Commission was invited by a Mandatory to visit a mandated terri
tory. Respondent had extended this invitation also to the Secretary
General of the League and the Director of the Mandates Section of
the League, but neither could avail himself thereof 2•
On many occasions appreciation was expressed, on both sicles, of
the relationship and co-operation between Respondent and the Commis
sion. As examples may be menticined the following:
(a) In a letter by General Smuts, dated 16 May 1923, to the Chairman
of the Commission, there occurred, inter alia:
"I also wish to express my appreciation of the valuable work
which you are doing as Chairman of the Permanent Mandates
Commission; and I wish especially to thank you and the other
members of the Commission for the way in which you have assisted
the Council of the League in order to meet my wishes about the
naturalization of the white German inhabitants of South West
Africa. You have shown great fairness .and wisdom in realizing the
special and exceptional character of the problem in that terri tory.
and I thank you for finally agreeing to the solution which I have
put forward 3."
1 L. ofN., 0.j.,1924 (No. rn),p.1287.
2 P.M.C., Min., XXVII, p. 153.
' Ibid., IIp. 21.5. SOUTH WEST AFRICA
(b) On 6 June 1936 the Chairman of the Commission thanked the
South African representative-
"for his co-operation and expressed the Commission's appreciation
of the cordiality, sincerity and loyalty shown by the accredited
representative of the Mandatory power. It was a matter for satis
faction that there was such close co-operation between the Com
mission and the Unionl",
(c) In his address of 9 April 1946, to the Assembly of the League
in its final session, the South African representative stated:
"it is gcnerally recognised that the League discharged its super
visory functions in respect of mandates with hîgh seriousness, skill
and success. For twenty years, as one of the mandatory Powers,
South Africa worked in close co-operation with the Permanent
Mandates Commission, and we are proud of the fact that our rela
tions with that body have always been both happy and cordial 2."
Again the reason for the language in the Memorials, as above cited,
is difficult to appreciate.
24. The Applicants state at I, page 37, that, "Officiais of the Union
Government from the outset: viewed the mandate as tantamount to
annexation".
They then quote, at the same page, two extracts from a newspaper
report of a speech made by General Smuts at Windhoek in September
1920, the first bcing that he "emphasized that the League of Nations
had nothing to do with the giving of the Mandates", and the second:
"In effect, the relations between the South West Protectorate and the
Union amount to annexation in ail but name."
This the Applicants then describe as "so striking a reversai of concept
towards the Mandate System".
In regard to the first of the above extracts, General Smuts was speak
ing of the allocation of mandated territories by the Principal Allied
and Associated Powers 3•His address was delivered some months prior
to the execution of the mandate instrument .f,ln regard to the second
extract, Respondcnt has already pointcd out 5 that Gencral Smuts'
description accorded with that of other commentators, and that when
regard is had to the nature of the compromise arrived at in respect
of C Mandates. no "reversai of concept", "striking" or otherwise, was
involved. That General Smuts, in the passage in question, was con
cemed only with the practical effect of the C Mandate, and was in no
way seeking to evade the significance of the safeguards envisaged in the
interests of the native population, or of League supervision in respect
thereof, appears from the context of the whole address as reported, as
well as from a letter ,vritten by him on the subject to M. Rappard on
4 July 1922. In the report of the speech there occurs, inter alia, the fol
lowing:
"... the mandate was a new idea in International Law, and there
fore it was only right that a full explanation should be given at
1 P.M.C., Min., XXIX, p. I3ï·
2 L.of N., O.]., Spec. Sup1\o. 194,p. 32.
3 Vide para.10, supra.
4 17 Dec. 1920-vide parn. 15,supra.
3 Para. 9,supra read with para. 8,supra. COUNTER-MEMORIAL OF SOUTH AFRICA 27
this stage. He emphasized that the League of Nations had nothing
to do with the giving of mandates, which were already settled as a
fac/ by the Peace Treaty, quite apart from the League of Nations.
Under the Peace Treaty Germany had :r:enounced her colonies not
ta the League of Nations, but ta the Great Powers. Article n9 of the
Treaty made that clcar. The Great Powers passed a resolution in
Paris in May r9r9, conferring various mandates and in the case of
South West Africa the mandate was given to the Union. This mandate
was accepted by the Union Parliament. The League of Nations was
only concerned in one way, namely to define the scope of the
mandate in any particular area ... The Prime Minister then quoted
the relevant portion of the Peace Treaty providing for the govern
ment under the laws of the Mandatory. Subject to sa/eguards, the
Union Government had complete authority over South \Vest Africa,
not as a separate territory, but as an integral portion of the Union,
as though it were Union territory, with sa/eguards for the natives
against slavery, traffic in arms, liquor and military training-the
control of these safeguards lying with the League of Nations. The
Union Government could extend ta South West Africa ils legal,
judicial, administrative and financial systems, its Civil Service, its
police, and its Railway Administration, and it could declare South
\Vest Africa a Province of the Union and could give Parliamentary
representation, the only limit being in regard to natives.
In effect, the relations between the South West Protectorate and
the Union amount to annexation in all but name. Without annexa
tian the Union could under the Peace Treaty do whatever it could 1
have done in annexed territory, save the reservation of the natives .''
(Italics added.)
In his letter ta M. Rappard, General Smuts pointed out that he had
addressed the German section of the population and had cxplained ta
them "the futility of looking to the Fatherland and the necessity of
throwing their lot in with the people of the Union". He added:
"I have explaincd to them that the Union has full power of.
legislation and administration over South West Africa as an integral
portion of the Union, and that the effect is very much the same as
if they were incorporated into the Union subject of course, to the
full safeguards in the interests of the native population. In ail this,
I have confined myself ta the strict letter of Article 22....
Do not for a moment think that in my ideas or proposais I depart
/rom the system of mandates, which I consider one of the most bene
ficent advances in international law. T-Vemust only recognizethe fact
that C mandates are in effecl not far removed /rom annexation. The
case is, of course, quite different with the other two far more im
portant types of mandates 2." (Italics added.)
In the light of these facts, apparent in full from the Minutes of the
Permanent Mandates Commission as referred to by Applicants, them
selves at I, page 37, there can again be no justification for the Appli
cants' language in question.
25. Applicants state at I, page 38, that the Permanent Mandates
1
2 P.ftf.C.Min., II, p.92.
Ibid.,p.91. · SOUTH WEST AFRICA
Commission "felt obliged on more than one occasion to call the Union
to task with respect to its attitude toward the legal status of the
Territory". Applicants theri proceed to allege in this regard that-
"... when the Union concluded a seriesof Agreements with Portugal
regarding the· boundary between Angola and South West Africa,
the Commission drew attention ta the fact that in the Preamble
to one such Agreement, the Union asserted 'full sovereignty over
the territory of South West Africa, lately under the sovereignty
of Gerrnany"'. (Italics added.)
As a fact Respondent in the preamble did not assert "full" sover
eignty: the word "full" was not used and the word "sovereignty"
was qualified by the words "subject ta the terms of the said Mandate".
The relevant part of the preamble read:
"And Whereas under a mandate issued by the Council of the
League of Nations in pursuance of Article 22 of the Treaty of
Versailles, the Govemment of the Union of South Africa, subject ta
the terms of the said mandate, possesses sovereignty over the Territory
of South West Africa (hereinafter referred to as the Territory)
lately under the sovereignty of Germany ." (ltalics added.)
A lengthy controversy did arise, with reference to this preamble, as to
the meaning to be assigned to the word "sovereignty". There followed
discussions and correspondence, which as a result of misunderstand
ings were protracted. Part only of these is quoted by the Applicants.
A full account, as recorded in the official records of the Leagne-but
which would needlessly lengthen this statement-shows that the diffi
culty related mainly to the meaning to be assigned to the word "sover
eignty" in the context of mandates. This was a question dealt with at
great length by many authorities, who arrived at a variety of conclusions.
Wright mentions at least ten theories •
As far as the League was concerned, M. Hymans had in 1920, in a
report adopted by the Council on 5 August 1920 stated as follows:
"The degree of authority, control or administration is, so far as
'B' or 'C' Mandates are concerned, a question of only secondary
importance.
In the former case, as in the latter, the Mandatory Power will
enjoy, in my judgment, a full exercise of sovereignty, in so far as
such exercise is consistent with th3 carrying out of the obligations
imposed by paragraphs 5 and 6 ." (Italics added.)
There was, however, no attempt in the League to define where
sovereignty, in the traditional sense of absolute power, was lodged in
regard to Mandates. In this regard, the above report by M. Hymans
had stated:
"I shall not enter into a controversy-though this would certainly
be very interesting-as to where the sovereignty actually resides.
We arc face to face with a new institution. Legal erudition will
decide as to what extent it can apply to this institution the older
juridical notions .._"
1
2 L. of N., O.}., 1926 (No. u), p. 1533.
3 Op. cit., pp. 319-339.
4 L. of N., Council, Min., VIII, p. 183.
Ibid., p. 185. COUNTER-MEMORIAL OF SOUTH AFRICA 29
Similar sentiments on tlùs aspect of the matter were expressed by M.
Beelaerts van Blokland in a report adopted by the Council on 8 Sep
tember 1927 1, and also in a further report by M. Procopé adopted
on 6 September 1929 2• The different senses in which the word "sover
eignty" could be used, contributed to the misunderstandings involved
in the lengthy discussions and exchange of communications between the
Commission and Respondent.
What is, however, of importance, is that all such misunderstanding
was resolved through the acceptance by Respondent, in a letter of 16
April 1930, of the above reports of M. Beelaerts van Blokland and M.
Procopé, which were to the effect, inter alia, that "sovereignty in the
traditional sense of the word does not reside in the Mandatory Power" 3.
In the light of this outcome of the exchange of communications be
tween the Commission and Rcspondent concerning the question of
sovereignty, Respondent finds it difficult to understand why Applicants'
Memorials, at I, page 39, leave this matter on the note of "no clear reply
to the question", "regrettable misunderstanding" and "its [Re
spondent's] assertion of the possession of sovereignty over the man
dated territory".
26. \Vith regard to the reference at I, page 39, to an "intention to
incorporate" the Territory, Respondent's view has consistently been that
doser association between South West Africa and South Africa was in
accordance with the compromise arrangement regarding C :Mandates
as contained in Article 22 and given effect to in the mandate instrument
for South West Africa 4•
In Septembcr r920, General Smuts saw the constitutional development
of South West Africa as follows:
"The policy of the Government would be to carry out the mandate.
South \Vest Africa would always be a separate unit as a large
country, but it was impossible to run it as a province at the present
time, though later, no doubt, it would become one, with a Provincial
Council and members in the House of Assembly, but first other
stages would have to be passed through. The first would probably
be an Advisory Council to be appointed to advise the Administrator.
Not long alter that, the Council would become an elected council,
and in due course there would be a full Parliamentary system 5."
Although Respondent during the existence of the League never made
any fonnal proposals, either for the incorporation of South \Vest Africa
as a fifth province or othenvise, incorporation was from time to time
strongly urged by sections of the inhabitants of the Territory. This
pressure from within the Territory arase mainly as a counter to events
in the r93os-the daims of Germany under Hitler to the restoration of
the former German colonies and the insistence on the part of the Ger
man section of the population in South West Africa that this would
sooner or later be achieved. M. Rappard in 1934 called this agitation
for incorporation "a very natural rea?tion" 6_
1 L. ofN., O.]., 1927 (No. 10), p. 1120.
2 Ibid., 1929 (No. 11)p. 1467.
3 Ibid., 1930 (No. 7), pp. 838-839.
4 Vide para. 7, supra.
' P.M.C., Min., Il, p.92.
6 Ibid., XXVI, p.50.30 SOUTH WEST AFRICA
The statement of M. Rappard referred to at 1, page 39, was made in
1925. Itdid not relate to any concrete proposal or intention and, in fact,
constituted speculation on a purely hypothetical basis .. Consequently
Sir Frederick Lugard considered that in the al_)scnceof a concrete
proposai, this discussion was beyond the Commission's competence 1•
In the circumstances the phrase "the proposai" at 1, page 39, is not
understood, nor does Respondent understand the allegation that such a
proposal {sic) "frequently drew the Commission's attention".
27. The purport of the quotation given by the Applicants at 1, pages
39 to 40, will be better understood when that quotation is read in the
context of the full paragraph in which it appeared. That paragraph read:
"The Commission was informed by the mandatory Power that the
latter has appointed a special Committee to study certain constitu
tional problems raised by a motion of the Legislative Assembly of
the territory aiming at its incorporation as a 'fifth province of the
Union'. It noted, in particular, that this committee is to take ac
count, lnter alia, 'of the character of the territory as a mandated
terri tory and the rules of international law governing the mandate'.
The Commission noted with satisfaction the statement by the ac
credited representative that the mandatory Power will not take any
action in this respect until it bas first communicated its intentions to
the League of Nations.
As the guardian of the integrity of the institution of mandates, the
Commission therefore expects to be informed of the mandatory
Power's views on the question, which it will not fail to subject to
that careful examination that its international importance demands.
The Commission wishes, on this occasion, to clraw attention to the
mandatory Powers' fundamental obligation to givc effect, not only
to the provisions of the mandate, but also to those of Article 22
of the Covenant2." (Italics added.)
M. Rappard indicated the attitude of Members of the Commission
when be said:
"... he deeply appreciatecl the statements made by the accredited
representatives. The attitude of the Union Government in this
matter had now been fully and completely defined. Last year, there
had been some misunderstanding on the subject, because the
previous accredited representative had apparently not felt authori
zed to make definite statements. There had becn no Jack of goodwill
on bis part, and this observation implied no criticism of his attitude.
It was however, a matter of congratulation that so full a statement
had now been made. This statement went a long way to create that
mutual confidence between the Mandates Commission and the
mandatory Power which was so necessary for the success of their
mutual efforts 3."
Thus as regards the Mandatory's attitude, the Commission expressed,
not "misgivings"4, but "satisfactton".
Applicants state at 1, page 40, "in the meantime the Union had
1 P.M.C., Min., VI, p. 60.
3 Ibid.,XXVII, p. 229.
Ibid.,p.I6I.
• As is alleged by Applicantat I, p. 39. COUNTER-llfEMORIAL OF SOUTH AFRICA 31
established 'a South West Africa Commission' ... to deal further with
the inattcr of incorporation". In fact this Commission was the body
referred to in the observations of the Permanent Mandates Commission,
quoted above, as a "Committee to study certain constitutional problems' '.
Its appointment had been notified to the Commission by Respondent,
and the observations of the Commission arose from the discussion of that
very notification.
The Commission's subsequent observations referrcd to by the Appli
cants at I,page 40, read in full:
"The Commission noted the statement in the annual report (page
4) that the mandatory Power 'is of opinion that to administcr the
mandated territory as a fifth province of the Union subject to the
terms of the mandate would not be in conflict with the terms of
the mandate itself'. It also noted that the mandatory 'feels tltat
sufficient grounds have not been adduced for taking such a step'.
The Commission does not express any opinion as to a method of
administration the scope of which it has had no opportunity of
judging and the adoption of which, according to the statement of
the manda tory Power, is not contemplated; it confines itself to
making all legal reserva tions on the question 1."
In the absence of any specific proposal, the Permanent Mandates
Commission could hardly be expected to take any other course than
to reserve its position, as it did. The significance which the Applicants
attach to this reservation is therefore not understood.
Respondent has ncver made a secret of its conviction that doser
association between South Africa and South West Africa would best
serve the in'terests of the inhabitants of South West Africa. It held
that view before Versailles and reassessment in the light of subsequent
events has not led to any other conclusion. Respondent sees nothing
wrong, sinister or strange in seeking that doser association.
There is, however, no justification for Applicants' statement at I, page
40, that-
"the question of the legal status of the Territory was perhaps the
most serious area of disagreement persisting between the Union and
the Permanent Mandates Commission''.
As appears from the facts aforestated, tnere was no "area of disagree
ment persisting" as regards "the legal status of the Territory"; and
Respondent is not aware of any "area of disagreement", "serions" or
otheiwise, "persisting" in regard to a:ny other matter.
28. Applicants allege at I, page 40, that the Permanent l\fandatcs
Commission "repeatedly deemed it necessary to criticize other phases of
the Union's administration of the Territory"-and they then list five
aspects of administration, giving references. For reasons stated in
paragraph I above, Respondent does not deal here with the substance
of the allegations, other than to state that neither the references cited
by Applicants nor the other records of the Lcague support the allegation
that the Commission had "repeatedly criticized" as·pects of its ad
ministration of South West Africa. It was the duty of the Commission
to express its views on the administration. and complete agree.ment at
ail times between the l\Iandatory and individual Members or even the
1 P.M.C., Min., XXXI, p.r92. 32 SOUTH WEST AFRICA
Commission as a whole could not possibly be expected. Yet, individual
differences which did arise from time to time, were remarkably few and
they were invariably settled to the satisfaction of the Commission, the
Council and the Mandatory.
The Period of Transition 1945-1946
ESTABLISHMENT OF THE UNITED NATIONS
29. The establishment of the United Nations Organization resulted
largely !rom inter-Allied co-operation during the Second World War.
The name "United Nations" had been adopted by the Allies in the
later stages of the war and used in declarations, such as that of r January
1942, at Washington, pledging war-timc co-operation. The prospect of
establishing a new international organization for the preservation of
international peace was mentioned in a declaration signed on 30 October
1943, at Moscow, by the representatives of four of the major Allied
Powers, viz., the Union of Soviet Socialist Republics, the United States
of America, the United Kingdom and China. The first blueprint of the
organization was prepared during discussions in the period August to
October 1944, at Dumbarton Oaks, Washington, in which the said four
Powers participatcd. Following on these discussions there was published
the proposai, inter aliathat the key body in the contemplated organiza
tion was to be a Security Council on which the "Big Five" Powers
(being the abovc four and France) were to be permanently representcd.
During the Yalta Conference of February 1945, between President
Roosevelt of the United States of America, Prime Minister Churchill
of the United Kingdom and Premier Stalin of the Soviet Union, came an
announcement that the question of voting procedure in such a Security
Council had been settled and that "a conference of United Nations"
should be called to meet at San Francisco to prepare a charter for "a
general international organization to maintain peace and security ...
along the lines proposed in the infonnal conversations of Dumbarton
Oaks''.
A conference of delegates of 50 nations was held at San Francisco
hetween 25 April and 26 June,1945, at which the Charter of the United
Nations was drafted, unanimously agreed upon and signed by ail the
representatives. lt came into force on 24 October 1945, when, as required
by Article rro thereof, the live Powers that were to be Permanent
Members of the Security Council and a majority of the other signatory
States had filed their ratifications.
30. During the aforesaid events the League of Nations was still in
existence; and it continued to exist side by side with the new organization
until April 1946.
There was no suggestion that the United Nations was to be the
League under a new name, or an automatic successor in law to League
assets, obligations, functions or activities. Indeed, two of the major
Powcrs which played a leading role in the establishment of the United
Nations, and were to be Permanent Members of the Securitv Council,
were known to be strongly averse to any notion of automatic succes-
1 Eueryman's United Nations (6th ed.), pp. 4-5. Vide also GoodrichM. and
Hambro, E., Charter of the United Nations (2nd ed.), pp. 3-18. COUNTER-MEMORIAL OF SOUTH AFRICA 33
sion. They were the Soviet Union, which had been expelled from the
League in December 1939, and the United States of America, which
had never been a Member of the League.
In terms of Article 3 of the Charter, the original Members of the
United Nations were the States which, having participated in the San
Francisco Conference or having signed the Declaration by the United
Nations of r January 1942, also signed the Charter and ratified it in
accordance with Article no. There were 51 such original Members of the
United Nations, of which 17 were not at that time (1945-1946) Members
of the League. They were: Byelorussian Soviet Socialist Republic, Chile,
Costa Rica, El Salvador, Guatemala, Haïti, Honduras, Lebanon, Nica
ragua, Paraguay, Peru, Philippines, Saudi Arabia, Ukrainian Soviet
Socialist Republic, Union of Soviet Socialist Republics, United States of
America, Venezuela.
Of those 17, six had never been Members of the League. They were:
Byelorussian Soviet Socialist Republic, Lebanon, Philippines, Saudi
Arabia, Ukrainian Soviet Socialist Republic and United States of
America.
AUthe others (except the Soviet Union) had many years before with
drawn from the League on notice 1.
Further, of the 42 Members of the League of Nations at that time,
II were not original Members of the United Nations. They were:
Afghanistan, Bulgaria, Estonia, Finland, Ireland, Latvia, Lithuania,
Portugal, Siam (Thailand), Sweden and Switzerland.
Four of these, viz., Switzerland, Lithuania, Latvia and Estonia, never
became Members of the United Nations. The others were admitted to
membership at various times, in some cases years after the establishment
of the United Nationsi. .
As a result of the admission of new Members, United Nations mem
bership grew to 99 as at the end of 1960 and to 1ro as at the end of 1962.
Although 14 of these new Members had at some stage or another been
Members of the League, the others had never been.
31. At the San Francisco Conference, during the discussions conceming
the provisions of the Charter relative to a proposed trusteeship system 3,
the South African representative made the following statement:
"I wish to point out that there are territories already under
Mandate where the Mandatory principle cannot be achieved.
As an illustration, I would refer to the former German territory of
South West Africa held by South Africa under a 'C' Mandate.
The tacts with regard to this territory are set out in a memorandum
filed with the Secretariat, which I now read:
When the disposai of enemy territory under the Treaty of Versail
les was under consideration, doubt was expressed as to the suitability
of the Mandatory form of administration for the territory which
formerly constituted the German Protectorate of South \Vest Africa.
Nevertheless, on 17 December 1920, by agreement between the
Principal Allied and Associated Powers and in accordance with
Article 22 Part I (Covenant of the League of Nations) of the Treaty,
1 For dates videWalters, F. P.A History of the League of Nation(1952), Vol. I,
pp. 64-65.
2 Vide dates inEveryman's United Nations (6th ed.)p.6.
3 In Committee Il/4 on11 May 1945.34 SOUTH WEST AFRICA
a Mandate (commonly referred to as a C Mandate) was conferred
upon the Govemment of the Union of South Africa to administer
the said territory.
Under the Mandate the Union of South Africa was granted full
power of administration and legislation over the territory as an
integral portion of the Union of South Africa, with authority to
apply the laws of the Union to it.
For 25 years, the Union of South Africa has govemed and ad
ministered the territory as an integral part of its own territory and
has promoted to the utmost the material and moral well-being and
the social progress of the inhabitants.
It has applied many of its laws to the terri tory and has faithfully
performed its obligations under the Mandate.
The territory is in a unique position when compared with other
territories under the same form of Mandate.
It is geographically and strategically a part of the Union of South
Africa, and in World War No. r a rebellion in the Union was fo
mented from it, and an attack launched against the Union.
It is in large measure economically dependent upon the Union,
whose railways serve it and from which it draws the great bulk of
its supplies.
Its dependent native peoples spring from the same ethnological
stem as the great mass of the native peoples of the Union.
Two-thirds of the European population are of Union origin and are
Union Nationals, and the remaining one-third are Enemy Nationals.
The territory bas its own Legislative Assembly granted toit by the
Union Parliament, and this Assembly bas submitted a request for
incorporation of the territory as part of the Union.
The Union has introduced a progressive policy of Native Adminis
tration, including a system of local government through Native
Councils giving the Natives a voice in the management of their own
affairs; and under Union Administration Native Reserves have
reached a high state of econornic development.
In view of contiguity and similarity in composition of the native
peoples in South West Africa the native policy followed in South
West Africa must always be aligned with that of the Union, three
:6.fthsof the population of which is native.
There is no prospect of the territory ever existing as a separate
state, and the ultimate objective of the Mandatory principle is
therefore impossible of achievement.
The Delegation of the Union of South Africa therefore daims that
the Mandate should be terminated and that the territory should be
incorporated as part of the Union of South Africa.
As territorial questions are however reserved for handling at the
later Peace Conference where the Union of South Africa intends to
raise this matter, it is here only mentioned for the information of
1
the Conference in connection with the Mandates question ."
1The official records of the San FrancisConference contain only a brief sum
mary of this statement (U.N.C.I.O. Dacs., Vol. ro, p. 434). The text quote<l here
is taken from the original typewritten document from which the South African
representative,Dr. D. L. Smit, read the statemein the Cornmittee on Trusteeship
on IrMay 1945, which accords with an unofficial verbatim record in the custody COUNTER-MEMORIAL OF SOUTH AFRICA
35
32. The significance of the above statement appears further from an
extract from a later statement by Field-Marshal Smuts, which can con
veniently-although out of historical sequence-be cited here. Addres
sing the Fourth Committee of the General Assembly of the United
Nations at its Fourteenth Meeting on 4 November 1946, Field-Marshal
Smuts stated, inter alia:
"It was ... incumbent on the Union Govemment as trustee of the
interests of the people of South West Africa to ensure that, when the
proper time arrived for consideration of any change in the status of
the Territory, such consideration should not be prejudiced by any
prior commitment on the part of the Union Govemment by virtue of
its membership of any organization which might replace the League
of Nations; Accordingly, in May 1945, when questions relating to
trusteeship were under consideration by the San Francisco Con
ference, the Union Govemment entered a reservation designed to
ensure that the future status of South West Africa and the desira
bility of its incorporation in the Union should not be prejudiced by
any proposais adopted by the Conference in regard to the future
of mandated Territories. The text of this reservation is given in
Paragraph 1 ofDocument A/123. In the event, however, the Charter
of the United Nations by the use of the terrn 'may' instead of 'shall'
in Article 77 excluded any obligation to place Mandated Territories
under trusteeship and made the application of the trusteeship system
to such territories a matter of voluntary agreement. This no doubt
accounts for the fact that in addition· to South West Africa three
other Mandates-Transjordan, Palestine and the Japanese Pacifie Is
lands-have so far been excluded from the Trusteeship System 1."
33. Towards the conclusion of the San Francisco Conference, on 25
June 1945, there was established a Preparatory Commission of the
United Nations, consisting of one representative of each signatory
2
State • The fonctions entrusted to it were to convoke the General
Assembly in its fi.rst session, to prepare the provisional agenda, docu
ments and recommendations for the first sessions of the principal organs
of the Organization, and to do certain other defined preparatory work
pending establishment of the Secretariat3. One of these items of pre
paratory work was to:
"Formulate recommendations conceming the possible transfer of
certain functions, activities and assets of the League of Nations
of the United Nations Secretariat.The original document read by the South African
representative contains also the following paragrapwhich is. however, not reflected
in the unofficial verbatimrecord:
"As stated in the Memorandum, this is nota matter that can be decided
here, but I am directed to mention it for the informationof the Conference
so that South Africa ma.y not afterwards be held to have acquiesced in the
continuance of the Mandate or the inclusion of the territoryin any form of
trnsteeshipunder the new lnterna~ional Organization."
Dr. Smit, who <lied during 1962, affirmèd by letter to Respondent before his
death. that he made the whole statement as it appearsin Respondent's records.
' G.A .. O.R.. First Sess., Second Part, Fourth Comm.Part 1, p. 239.
2 U.N.C.I.O. Docs., Vol. 5, pp. 300, 315 and Vol. Ip.630.
3 ibid., Vol. 5, pp. 300, 316. SOUTH WEST AFRICA
which it may be considercd desirable for the new Organization to
take over on terms to be arranged 1."
The Commission first met on 27 June r945, at San Francisco. And
when its Second Session opened on 24 November r945, in London, it had
before it a report by its Executive Cornmittee 2, which was composed of
representatives of the governments of 14 States. This report served as a
basis for the work of the full Commission, which rendered its own report
on 23 December 1945 3, setting out therein, inter alia, recommendations
concerning the agenda and proposed resolutions for the First Part of the
First Session of the General Assembly, which was held in London from
ro January to r4 February r946.
34. The Commission's task in regard to the possible transfer of certain
functions, assets and activities of the League to the United Nations,
was carried out in the following stages:
(a) A subcommittce of the Executive Committee made certain recom
mendations, cited in section 3 of Chapter IX of the latter's report.
The subcommittee recommended, with certain exceptions and quali
fications, the transfer of the functions, activities and assets of the
League. Among the exceptions were the political fonctions of the
League; and the subcommittee also indicated that:
"Since the questions arising from the winding up of the mandate
system are dealt with in Part III, Chapter IV, no recommendation
on this subject is included here 4."
In regard to functions ârising from Treaties, the subcommittee re
commended the adoption of a resolution by which the United Nations
should express their willingness to exercise functions and powers pre
viously entrusted to the League, reserving, however, the right to decide
which functions and powers they were prepared to take over and to
determine which organ of the United Nations, or specialized agency
associated with it, would exercise the functions or powers taken over ~.
Added to this recommendation was the following:
"The transfer to the United Nations of functions or powers
entrusted to the League of Nations by treaties, conventions, agree
ments or instruments having a political character, would if the
parties to these instruments desire, be separately considered in each
case 6."
As regards possible transfer of functions and activities as well as
of assets, the subcommittee suggested the appointment by the Pre
paratory Commission of a small committce to negotiate with the
Supervisory Commission of the League of Nations regarding "the
parallel measures that should be adopted by the League of Nations
7
and the United Nations" •
(b) The Executive Committee's recommendations, as set out in sections
1 and 2 of Chapter IX of its report, reveal acceptance in substance
1
2 U.N.C.I.O. Dacs., Vol. 5, p. 316, item (c).
3 Doc. PC/EX/113/Rev. 1, 12 Nov. 1945.
4 Doc. PC/20, 23 Dec. 1945.
Doc. PC/EX/113/Rev. 1,Chap. IX, sec. 3, paras. 1, 2 and 5, p. 110.
' Ibid.,para. 8, p. 111.
6 Ibid., para. JO,p. III.
7 Ibid., paras.32 and 33, p. 114. COUNTER-MEMORIAL OF SOUTH AFRICA 37
of the subcommittee's recommendations. Recommendation No. I of
the Executive Committee read as follows:
"r. that the functions, activities and assets of the League of
Nations be transferred to the United Nations with such exceptions
and qualifications as are made in the report referred to above, and
without prejudice to such action as the United Nations· may sub
sequently take with the understanding that the contemplated
transfer does not include the political fonctions of the League, which
have in fact already ceased, but solely the technical and non-political
fonctions;" 1
A footnotc relative to exceptions and qualifications read in part:
"The Committee recommends that no political questions should
be included in the transfer. Jt makes no recommendationto transfer
theactivitiesconcerning refogees, mandates orinternational bureaux 1."
(Italics added.)
Section 2 of this Chapter of the Executive Committee's report con
tained a draft resolution for the General Assembly, concerning the
assumption by the United Nations of fonctions of the League under
international agreements. It distinguished between:
"A. Secretarial Functions";
"B. Functions and Powers of a Technical and Non-Political Charac
ter"; and
"C. Treaties and International Conventions, Agreements and other
Instruments having a Political Character."
In regard to A and B it suggested an expression of willingness, sub
ject to the reservations mentioned by the subcommittee, to ensure
continued exercise of functions and powers. In regard to Cit suggested
the following: ·.
. "The General Assembly of the United Nations decides that it
will itself examine or will submit to the appropriate organ of the
United Nations any request from the parties that the United
Nations should take over the exercise of functions or powers en
trusted to the League of Nations by treaties and international
conventions, agreements or other instruments having a poli
tical character 2."
The subcommittee's recommendation that a small Committee be
appointed to negotiate with the League Supervisory Commission
regarding parallel measures, was endorsed 3•
(c) Discussions in the Pre:earatory Commission itself revealed that
two delegates in the Executive Committee had voted against
acceptance of Chapter IX of its report 4, and also that there was
concern amongst some delegates about the possibility that the
word "transfer", as used in the recommendations concerning func
tions and activities of the League, could "imply a legal continuity
which would not in fact exist", resulting in a suggestion that the
phrase "the assumption of responsibility for certain functions and
1 Doè.PC/EX/i I3iRev. i'Cha p. IX, sec.'3,p.108.'
2 Ibid., pl IO.
3 Ibid., p109 (last para. of sec1).
{ U.N.P.C., Commillee 7, Summary Reco1'ds,para. 1,p. 2. SOUTH WEST AFRICA
activities" might be ador,ted 1•This was eventually done 2,with the
further substitution of 'powers" for "activities". The recommen
dations of the Commission, relative to fonctions and powers, in
the form as finally adopted by the General Assembly in its resolution
XIV (r) of 12 February 1946 read as follows:
"TRANSFER OF CERTAIN FUNCTIONS, ACTIVITIES AND ASSETS OF THE
LEAGUE OF NATIONS
I
FONCTIONS AND POWERS BELONGING TO THE LEAGUE OF NATIONS
UNDER INTERNATIONAL AGREEMENTS
Under various treaties and international conventions, agreements
and other instruments, the League of Nations and its organs
exercise, or may be requested to exercise, numerous fonctions or
powers for the continuance of which, after the dissolution of the
League, it is, or may be, desirable that the United Nations should
provide.
Certain Members of the United Nations, which are parties to
somc of these instruments and are Members of the League of Nations,
have informed the General Assembly that, at the forthcoming
session of the Assembly of the League, they intend to move a
resolution whereby the Members of the League would, so far as
this is necessary, assent and give effect to the steps contemplated
below.
There/ore:
I. The General Assembly reserves the right to decide, after due
examination, not to assume any particular fonction or power, and
to determine which organ of the United Nations or which specialized
agency brought into relationship with the United Nations should
exercise each particular function or power assumed.
2. The General Assembly records that those Members of the United
Nations which are parties to the instruments referred to above
assent by this resolution to the steps contemplated below and ex
press their resolve to use their good officesto secure the co-operation
ofthe other parties to the instruments so far as this may be necessary.
3. The General Assembly declares that the United Nations is
willing in principle, and subject to the provisions of this resolution
and of the Charter of the United Nations, to assume the exercise
of certain functions and powers previously entrusted to the League
of Nations, and adopts the following decisions, set forth in A, B, and
C below.
A. Functions pertaining to a Secretariat
. . . . . . . .
1 U.N.P.C., op.cit., para3,pp. 2-3.
2 Ibid., pp10-II, COUNTER-MEMORIAL OF SOUTH AFRICA
39
B. Functions and Powers of a Technical and Non-Political Character
Among the instruments referred to at the beginning of this
resolution are some of a technical and non-political character which
contain provisions, relating to the substance of the instruments,
whose due execution is dependent on the exercise, by the League
of Nations or particular organs of the League, of fonctions or powers
conferred by the instruments. Certain of these instruments are
intimately connected with activities which the United Nations will
or may continue.
It is necessary, however, to examine carefully which of the
organs of the United Nations or which of the specialized agencies
brought into relationship with the United Nations should, in the
future, exercise the fonctions and powers in question, in so far as
they are maintained.
There/ore:
The General Assembly is willing, subject to these reservations, to
take the necessary measures to ensure the continued exercise of
these fonctions and powers, and refers the matter to the Economie
and Social Council.
C. Functions and Powers under Treaties, International Conventions,
Agreements and Other Instruments Having a Political Character
The General Assembly will itself examine, or will submit to the
appropriate organ of the United Nations, any request from the
parties that the United Nations should assume the exercise of
fonctions or powers entrusted to the League of Nations by treaties,
international conventions, agreements and other instruments having
a political character .... 1"
Regarding transfer of assets, the Preparatory Commission on I8
December 1945 set up a committee-
"to enter, on its behalf, into discussion with the League of Nations
Supervisory Commission, which has been duly authorized by the
members of the League of Nations, for the purpose of establishing
a common plan for the transfer of the assets of the League to the
United Nations on such terms as are considered just and convenient.
This Plan will be subject, so far as the United Nations is concemed,
to approval by the General Assembly 2".
It will be observed that the task of this negotiating commit tee was
confined to assets, the earlier recommendations of the Executive Com
mittee and its Subcommittee (subparas. (a) and (b) above) not being
followed in so far as they related to fonctions and activities-ostensibly
inasmuch as the conception of a "transfer" of certain fonctions and
activities had been abandoned in favour of one of "assumption" of
certain fonctions and powers. ·
The Commission's recommendation regarding assets was merely that
the plan to be developed as a result of the discussions should be sub
2
mitted for approval to the General Assembly • This was done at the
1 G.A. ResolutionXIV (1), 12 Feb. 1946, inU.N. Doc. A/64,pp. 35-36.
2 Doc. PC/20, p.118. SOUTH WEST AFRICA
First Part of the First Session, the General Assembly approving of the
common plan in Part III of resolution XIV of 12 February 1946 (supra).
35. (a) Il will be recalled that the Subcommittee of the Executive
Committee stated in its recommendations that "questions arising from
the winding-up of the mandate system are dealt with in Part III,
Chapter IV" of the Executive Committee's report 1•
(b) Reference to Chapter IV of its report reveals that the Executive
Committee, in view of possible delay in constituting the Trustee
ship Council in terms of Article 86 of the Charter, recommended that
the General Assembly create a Tcmporary Trusteeship Committee
"to carry out certain of the fonctions assigned in the Charter to
the Trusteeship Council, pending its establishment" •
One of the fonctions proposed for such a Committee was to
"advise the General Assembly on any matters that might arise
with regard to the transfer to the United Nations of any functions
and responsibilities hitherto exercised under the mandates system 3".
And in section 3, paragraph 9, there was included in the proposed
provisional agenda for the TemporaryTrusteeship Committee: "Pro
blems arising from the transfer of functions in respect of existing
mandates from the League of Nations to the United Nations."
This is probably what the Subcommittee of the Executive Com
mittee had in mind in speaking of "Part III, Chapter IV" of the
Executive Committee's report.
(c) The recommendations regarding a Temporary Trusteeship Com
mittee were, however, not accepted by the Preparatory Commission.
They were replaced by a recommendation that the General Assembly
should adopt a resolution calling on States administering territories
under League of Nations Mandate to undertake practical steps for
submitting trusteeship agreements in respect of them "preferably
not later !han during the Second Part of the First Session of the
General Assembly" •. The recommendation proceeded:
"Those trusteeship matters which will be taken up by the General
Assembly al the First Part of ils First Session for the purpose of
expediting the establishment of the trusteeship system, will be con
sidered by the Trusteeship Committee of the General Assembly,
using the methods which the General Assembly considers most
appropriate for the further consideration of these matters'."
(d) ln the discussion preceding this recommendation, in the 4th Com
mittee of the Preparatory Commission on 20 December 1945, the
representative of Australia made certain reservations concerning
aspects of the proposed preamble, stating, inter alia:
"There was an implication that Article So imposed an obligation
on States administering the territories mentioned in Article 77
to place those territories under trusteeship. The terms of Articles 75
and 77 made it clear that the placing of a territory under trusteeship
would be a voluntary act.
Thirdly, the phrase 'calls on', since it had a special connotation in
-----
1 Vide para. 34 (a), supra.
2 Doc. PC/EX/113/Rev. 1, Chap. IV, sec2, para. 3, p55.
3 Ibid.,para.4 (iv), p56.
4 Doc. PC/20, Chap. IV, sec. 1, p. 49. COUNTER-MEMORIAL OF SOUTH AFRICA
41
the· Charter (e.g., Arts. 33 and 41), was unfortunate in this con
text.
His Delegation cordially associated itself with the language of
the resolution, but had to insist that the language of the preamble
was not within the letter and spirit of the Charter; the action of
a mandatory would be as voluntary as that of any State putting any
kind of dependent territory under trusteeship 1." (ltalics added.)
Respondent's representative on the same occasion-
"reserved the position of his Delegation until the meeting of the
General Assembly, because his country foi.md itself in an unusual
position. The mandated territory of South-West Africa was already
a selfgoverning country, and last year its legislature had passed
a resolution asking for admission into the Union. His Governmcnt
had replied that acceptance of this proposai was impossible owing
to their obligations under the mandate.
The position remained open, and his Delegation could not record
its vote on the present occasion if by so doing it would imply
that South-West Africa was not free to determine its own destiny.
His Govemment would however, do everything in its power to
2
implement the Charter ."
In the discussion on the same subject in the Preparatory Commission
meeting on 23 December 1945, Respondent's representative stated:
"the South African Delegation associated itself wholly with the
desire of Committee 4 to apply the principles laid down in the
Charter and that its efforts had been directed towards that end.
hi view, however, of the special position of the Union of South
Africa, which held a IDandate over South-West Africa, it reserved
its position with regard to the document at pi-esent under review,
and especially because South Africa considered that it had fully dis
charged the obligations laid upon it by the Allies, under the Covenant
of the League of Nations, on the advancement towards self-govern
ment of territOriesunder mandate, and that the time had now corne
for the position to be examined as a whole. For that reason, the
South African delegation reserved its attitude until the Assembly
met 3."
(e) The Preparatory Commission's report was considered at the First
Part of the First Session of the General Assembly in January
February 1946. Addressing a Plenary Meeting on 17 January 1946
the South African representative stated his Govemment'~ position
on the South West Africa Mandate in the following terms:
"Under these circumstances, the Union Government considers
that it is incumbent upon it, as indeed upon ail other mandatory
Powers, to consult the people of the mandated territory regarding
the form which their own future government should take, since
they are the people chiefly concerned. Arrangements are now in
train for such consultations to take place and, until they have been
concluded, the South African Government must reserve its position
concerning the future of the mandate, together with its right of
1 ll.N.P:c.,Committee 4, Summary Recoras, p. 39.
zIbid., p.40.
J U.N.P.C., Journal, p.131. SOUTH WEST AFRICA
42
full liberty of action, as provided for in paragraph 1 of article 80
of the Charter.
From what I have said I hope it will be clear that South West
Africa occupies a special position in relation to the Union which
differentiates that territory from any other under a C ·mandate.
This special position should be given full consideration in deter
mining the future status of the territory. South Africa is, neverthe
less, properly conscious of her obligations under the Charter. I can
give every assurance that any decision taken in regard to the future
of the mandate will be characterized by a full sense of our responsi
bility, as a signatory of the Charter, to implement its provisions,
in consultation with and with the approval of the local inhabitants,
in the manner best suited to the promotion of their material and
1
moral well-being .''
On 22 January 1946, in the Fourth Committee, he added:
"Referring to the text of Article 77, he said that under the
Charter the transfer of the mandates regime to the trusteeship
system was not obligatory. According to paragraph 1 of Article 80,
no rights would be altered until individual trusteeship agreements
were concluded. It was wrong to assume that paragraph 2 of this
Article invalidated paragraph r. The position of the Union of South
Africa was in conformity with this legal interpretation.
He explained the special relationship between the Union and the
territory under its mandate, referring to the advanced stage of
selfgovernment enjoyed by South-West Africa, and commenting
on the resolution of the Legislature of South-West Africa calling
for amalgamation with the Union. There would be no attempt to
draw up an agreement until the freely expressed will of both the
European and native populations had been ascertained. ~en that
had been done, the decision of the Union would be submitted to
the General Assembly for judgment '."
(!) Of the other Mandatories the representative of the United King
dom stated (on 17 January 1946):
"We have decided to enter forthwith into negotiations for pladr~g
Tanganyika, the Cameroons ·and Togoland under the trusteesh1p
system. Preliminary negotiations have already started. I must
make it clear that our willingness to place these territories under
the trusteeship system naturally depends upon our being able to
negotiate terms which in our v1ew are generally satisfactory, and
which achieve the objectives of the Charter and are in the best
interests of the inhabitants of the territories concerned. ...
Regarding Palestine, the Assembly is aware that an AngJo
American Committee of Enquiry, is at this very moment, examinn~g
the question of European Jewry, which is one of the most trag1c
episodes in the whole of history, and also the Palestine problem.
We think it necessary to await the Committee's report before
putting forward any proposais relating to the future of Palestine.
Regarding the future of Transjordan, it is the intention of His
1 G.A., 0.R.,First Sess., First Part, 12th Plenary Meeting17 Jan~ 1946, PP·
185-186.
2 Ibid., Fourth Comm., 3rd Meeting22 Jan. 1946, p10. COUNTER-MEMORIAL OF SOUTH AFRICA
43
Majesty's Government in the United Kingdom to take steps in the
near future for establishing this ferritory as a sovereign independent
State and for recognizing its status as such. In these circumstances,
the qu1stion of Transjordan going under trusteeship does not
arise ."
The representative of France stated (on 19 January 1946):
"The French Government intends to carry on with the work
entrusted to it by the League of Nations. Believing further that
it is in the spirit of the Charter that this work should henceforward
be carried on under the trusteeship system, it is prepared to study
the terms of the agreements by which this regime could be defined
in the case of Togo and the Cameroons, on the understanding,
however, that this shall not entail, for the populations concerned,
any diminution in the rights which they already enjoy by reason
of their integration into the French community, and further that
these agreements will be submitted for approval to the representa
tive organs of these populations 2."
Other Mandatory Powers, New Zealand, Australia and Belgium,
stated intentions to negotiate trusteeship agreement3 in respect of
the Mandated territories administered by !hem •
(g) In its resolution XI of 9 February 1946, the General Assembly (in
the preamble), inter alia,expressed regret at the fac! that the Trus
teeship Council could not be brought into being at that Session,
because trusteeship agreements had first to be concluded, and
referredto the above-mentioned recommendation of the Preparatory
Commission as regards expediting the conclusion of such agree
ments. The resolution proceeded to state, inter alia, that-
"with respect to Chapters XII and XIII of the Charter, the General
Assembly:
Welcomes the declarations, made by certain States administering
territories now held under mandate, of an intention to negotiate
trusteeship agreements in respect of some of those territories and,
in respect of Transjordan, to establish its independence.
Invites the States administering territories now held under man
date to undertake practical steps, in concert with the other States
directly concerned, for the implementation of Article 79 of the
Charter (which provides for the conclusion of agreements on the
terrns of trusteeship for each territory to be placed under the
trusteeship system), in order to submit these agreements for ap
proval, preferably not later !han during the second part of the
first session of the General Assembly •."
DISSOLUTION OF THE LEAGUE OF NATIONS
36. The situation as far as the League of Nations was concerned,
after establishment of the United Nations, was described in a League
publication as follows:
1 G.A., O.R., First Sess., Fourth Comm., 11th Plenary Meeting, 17 Jan. 1946,
pp. 166-167.
2 Ibid., 16th Plenary Meeting, 19 Jan. 1946, p. 251.
l Ibid., 14th and 15th Plenary Meetings, 18 Jan. 1946, pp. 227, 233 and 238.
-1U.N. Doc. A/64, p. 13. SOUTH WEST AFRICA
44
"The adoption of the Charter of the United Nations by a Con
ference at which the great majority of the States Members of the
League were represented made the latter's ultimate disappearance
a foregone conclusion and from that time onwards the chief concern
of those responsible for its .destinies ,vas to see that its activities
were terminated in a manner worthy of the part it has played in
world affairs during the last quarter of a century ."
37. The Secretary-General of the League, in a communication dated
20 September 1945, drew the attention of League Members to the
task entrustcd a~ San Francisco to the United Nations Preparatory
Commission relative to "the possible transfer of certain functions,
activities and assets of the League which it may be considered desirable
for the new Organization to take over on terms to be arranged" 2•The
communication contained a proposai that the Supervisory Commission
of the League be empowered to negotiate with representatives of the
United Nations in this regard and to draw up provisional terms of
transfer "subject to the final decision of the League Assembly" 1.The
proposai was.accepted by the Members of the League, and negotiations
were entered into with the United Nations negotiating committee
established by its Preparatory Commission on 18 Decemb~r 1945 . 3
By reason of the limited terms of reference of the United Nations com
mittee3, the negotiations concerned assets only. The joint deliberations
were successful and resulted in the "common plan", which was approved
by the General Assembly of the United Nations in Part III of its Reso
lution XIV of 12 February 1946 3•It still required the assent ofthe League
Assembly to become effective.
After referring to the United Nations resolutions relative to possible
assumption of League fonctions and powers 4, the authors of The League
Hands Over stated:
"Thus by the time the Assembly met in its twenty-first session
it was in possession of the United Nations' plans for taking over
the League's material assets and for carrying on, either directly
or through one of its related agencies, all the League's most impor
tant ftmctions and activities of a non-political character. Its main
business, therefore, was 'to make provision for bringing the League of
Nations to an end in orderly fashion, so that as much as possible
of its surviving work can be continued without interruption and as
rnuch as possible of its property can be used to promote those high
purposes of international peace and co-operation for which the
League itself was founded' 5."
38. The League Assembly met in its zrst, and last Session from 8
to 18 April 1946.
Its final resolution, adopted on r8 April 1946, provided at the com
mencement of its operative part as follows:
1 The Leagm Hands Over (1946), p. 61.
2 Vide para. 33,supra.
3 Vide para. 34 (c), supra.
4
5 Vide para. 34,supra.
At p. 63. The quotation was taken from the Report of the First Committee the
Assembly inL. of N., 0.J., Spec. SupNo. 194, p. 250. COUNTER-MEMORIAL OF SOUTH AFRICA 45
"Dissolution of the League of Nations
I. (1) With effect from the day following the close of the present
session of the Assembly, the League of Nations shall cease to exist
cxcept for the sole purpose of the liquidation of its affairs as pro
vided in the present resolution ."
The rest of the resolution rclated to practical arrangements con
cerning liquidation. Thus in paragraph 2 provision was made for the
appointment of certain persons to forma "Board of Liquidation" which
was to "represent the League for the purpose of effecting its liquidation".
In the same paragraph the powers of the Board were circurnscribed
as follows:
"Subject to the provisions of this resolution and other relevant
decisions taken by the Assembly at the present session, the Board
shall have full power to give such directions, make such agreements
and take all such measures as in its discretion it considers appro
priate for this purpose."
Paragraph 5 of the resolution approvecl of the "Common Plan" for
transfer of assets to the United Nations.
The final paragraph of the rcsolution provicled as follows:
"On the completion of its task, the Board shall make and publish
a report to the Governments of the Members of the League giving
a full account of the measures which it has taken, and shall declare
itself to be dissolved. On the dissolution of the Board, the liquida
tion shall be deemed to be complete and no further claims against
the League shall be recognized."
The resolution contained no provisions with regard to Mandates or
fonctions in connection with Mandates.
39. "The Assumption by the United Nations of Functions and Powers
hitherto exercised by the League under International Agreements" was the
heading of a separate resolution adopted earlier on 18 April 1946. It
read, in so far as is relevant, as follows:
"The Assembly of the League of Nations,
Having considered the resolution on the assumption by the
United Nations of fonctions and powers hitherto exercised by the
League of Nations under international agreements, which was
adopted by the General Assembly of the United Nations on February
16th, 19462.
Adopts the following resolutions:
r. Custody of the Original Texts of International Agreements.
2. Functions and Powers arising out of International Agreements of
a Technical and Non-po!itical Character.
The Assembly recommends the Governments of the Mcmbers
of the League to facilitate in every way the assumption without
interruption by the United Nations, or by specialized agencies
brought into relationship with that organization, of fonctions and
1L. of N., O.}., Spec. Sup. No. 19p.2Sr.
2G.A. Resolution XIV (r). 12Fcb. 1946, in U.N. Doc. A/64, p. 35. SOUTH WEST AFRICA
powers which have been entrusted to the League of Nations, under
international agreements of a technical and non-political1character,
and which the United Nations is willing to maintain ."
40. "The Assumption by the United Nations of Activities hitherto
performed by the League" was the heading of a further separate reso
lution of 18 April 1946, reading as follows:
"The Assembly directs the Secretary-General of the League of
Nations to afford every facility for the assumption by the United
Nations of such non-political activities, hitherto performed by the
League, as the United Nations may decide to assume 1."
41. Finally, "Mandates" was the heading of another important separ
ate resolution of 18 April 1946. Before setting out its terms, regard is to
be had to certain events which preceded its adoption.
(a) The session was scheduled to last Jess than two weeks, and delegates
knew that it would not be possible to (liscuss the future of the
mandate system at any length in an appropriate Committee. In
formal discussions were consequently initiated between those Mem
bers of the League most directly concerned, with a view to securing
the greatest possible measure of agreement before the matter was
officially considered in the Committee.
ln pursuance of the said discussions, the representatives of Manda
tory Powers, in addressing the Plenary Meeting of the Assembly,
made statements indicating the intentions of their governments
regarding their respective mandates. In the resolution ultimately
adopted the Assembly "'took note" of these statements.
(b) The following are relevant extracts !rom these statements of in
tention by the various Mandatories:
(i) By the representative of the United Kingdom (on 9 April 1946):
"The mandates administered by the United Kingdom were origi
nally those forIraq, Palestine, Transjordan, Tanganyika, part of the
Cameroons and part of Togoland. Two of these territories have
already become independent sovereign States, Iraq in 1923, and
Transjordan just the other day in 1946. As for Tanganyika and
Togoland under their mandate, and the Cameroons under their
mandate, His Majesty's Government in the United Kingdom have
already announced their intention of placing them under the
trusteeship system of the United Nations, subject to negotiations
on satisfactory terms of trusteeship.
The future of Palestine cannot be decided until the Anglo-American
Committee of Enquiry have rendered their report, but until the three
African territories have actually been placed under trusteeship and
until fresh arrangements have been reached in regard to Palestine
whatever those arrangements may be-it is the intention of His
Majesty's Government in the United Kingdom to continue to ad
minister these territories in accordance with the general principles
of the existing mandates 2."
(ii)By the representative of South Africa (on 9 April 1946):
"Since the last League rrieeting, new circumstances. have arisen
-----
1 L. of N., O.]., Spec. Sup. No. 194, p. 278.
2 Ibid., p. 28. COUNTER-MEMORIAL OF SOUTH AFRICA 47
obliging the mandatory Powers to take into review the existing
arrangements for the administration of their mandates. As was fully
explained at the recent United Nations General Assembly in London,
the Union Government have deemed it incumbent upon them to
consult the peoples of South-West Africa, European and non
European alike, regarding the form which their own future Govern
ment should take. On the basis of those consultations, and having
regard to the unique circumstances which so signally differentiate
South-West Africa-a territory contiguous with the Union-from
ail other mandates, it is the intention of the Union Government, at
the forthcoming session of the United Nations General Assembly in
New York, to formulate its case for according South-West Africa
a status under which it would be internationally recognized as an
integral part of the Union. As the Assembly will know, it is already
administered under the terms of the mandate as an integral part of
the Union. In the meantime the Union will continue to adrninister
the territory scrupulously in accordance with the obligations of the
mandate, for the advancement and promotion of the interests of
the inhabitants, as she has done during the past six years when
meetings of the Mandates Commission could not be held.
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 com
pliance 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, which it will continue
to discharge with the full and proper appreciation of its responsibili
ties until such time as other arrangements are agreed upon concern
ing the future status of the territory ."
(iii)By the representative of France (on ro April 1946):
"The French Government intends to pursue the execution of the
mission entrusted toit by the League of Nations. It considers that it
is in accordance with the spirit of the Charter that this mission
should henceforth be carried out under the regime of trusteeship
and it is ready to examine the terms of an agreement to define this
regime in the case of Togoland and the Cameroons 2."
(iv) By the representative of New Zealand (on II April 1946):
"New Zealand has always strongly supported the establishment of
the International Trusteeship System, and has already declared its
willingness to place the mandated territory of \Vestern Samoa under
trusteeship .... New Zealand does not consider 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 territory. Until the conclusion of our Trusteeshîp
Agreement for Western Samoa, therefore, the terri tory will continue
to be administered by New Zealand, in accordance with the terms of
1 L. ofN .. O.]., Spec. SuNo. 194, pp. 32-33.
2 Ibid.,p.34. SOUTH WEST AFRICA
the Mandate, for the promotion of the well-being and advancement
of the inhabitants 1.''
(v) By the Belgian representative (on II April 1946):
"At the meeting of the General Assembly of the United Nations in
London on January 20th last, she declared her intention of entering
into negotiations with a view to placing the Territory of Ruanda
Urundi under the new regime. In pursuance of this intention, the
Belgian Government has prepared a draft agreement setting out the
conditions under which it will administer the territory in question.
ln the course of the same declaration ofJanuary 20th, weexpressed
our confidence that the Trusteeship Council would soon corne to
occupy in the United Nations Organization the important place
which it deserves. We can only repeat that hope here and give an
assurance that, pending its realization, Belgium will remain fully
alive to all the obligations devolving on members of the United
Nations under article 80 of the Charter 1.''
(vi) By the Australian representative {on II April 1946):
"The trusteeship system, strictly so called, will apply only to such
territories as are voluntarily brought within its scope by individual
trusteeship agreements. . . . 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 re
gard the dissolution of the League as lessening the obligations
imposed upon it for the protection and advancement of the inhabit
ants of the mandated terri tories, which it regards as having still full
force and effect. Accordingly, until the coming into force of appro
priate trusteeship agreements under Chapter XII of the Charter, the
Government of Australia will continue to administer the present
mandated territories, in accordance with the provision of the
Mandates, for the protection and advancement of the inhabitants.
In making plans for the dissolution of the League, the Assembly will
very properly wish to be assured as to the future of the mandated
territories, for the welfare of the peoples of which this League has
been responsible. So far as the Australian territories are concerned,
there is full assurance. In due course these territories will be brought
under the trusteeship system of the United Nations; until then, the
ground is covered not only by the pledge which the Government of
Australia bas given to this Assembly to-day but also by the explicit
international obligations laid down in Chapter XI of the Charter,
to which I have referred. There will be no gap, no interregnum, to be
provided for2."
In the earlier reference to Chapter XI of the Charter the Australian
representative had said:
"Amongst other things, each administering authority under that
chapter undertakes to supply to the United Nations information
1 1.. oN.,O.J., Spec. Sup. No. 194, p. 43.
2 Ibid., p47. COUNTER-MEMORIAL OF SOUTH AFRICA 49.
concerning economic, 1 social and educational conditions in its
dependent terri tories ."
(vii) No statement was made concerning the future of the Pacifie
Islands in respect of which a mandate had been granted to Japan.
(c) Alter the above statements by the representatives of the United
Kingdom and of Respondent had been made (on the morning of
9 April 1946). but bcfore the others could be delivered, and while
the informai discussions were still proceeding regarding the drafting
of a resolution, the representative of China, Dr. Liang, rais·ed the
question of the future of Mandates in the First Committee on the
afternoon of g April 1946.
The Cornmittee was at the tirne considering the draft resolution
concerning assumption by the United Nations of League functions
and powers arising out ofinternational agreements of a technical and
non-political charactcr (vide para. 33 above). Dr. Liang wished to
propose for discussion the following draft resolution, which
he read out:
"The Assembly,
Considering that the Trusteeship Council has not yet been consti
tuted and that ail mandated territories under the League have not
been transferred into terri tories under trusteeship;
Considering that the League's function of supervising mandated
territories should be transferred to the United Nations, in order to
avoid a period of interregnum in the supervision of the mandatory
regime in these territories. (Italics added.)
Recommends that the rnandatory powers as well as those adminis
tering ex-enemy mandated territories shall continue to subrnit
annual reports to the United Nations and to submit to inspection
by the same until the Trustecship Council shall have been con
stituted 2.)'
The Chairman, however, ruled that the proposai was not relevant
to the item then under c<insidcration by the Committee. What trans
pired is set forth as follows in the Summary Records of the League:
"Dr. Lone Liang (China) referred to the position of terri tories
under mandate and to the position which would arise on the dissolu
tion of the League, in view of the fac! that the trusteeship council
of the United Nations has not yet been appointed and was not likely
to be set up for sorne tirne."The Chinese delegation wished to submit
a resolution recommending that the mandat~ry powers should
continue to submit annual reports on the mandated terri tories to the
United Nations and that they should agree to inspection by the
latter, pending the constitution of the trusteeship council.
The Chairman thought that the question raised by the .Chinese
dclegate could be discussed later, but for the moment they must
confine themselves to examining the resolutions of the United
Nations in the order in which they appeared in document A/13.1946.
The General Assembly of the United Nations had certainly _n_oh tad
1
2 VidefL..,of N.,21st Assembly,. 1st Comm.,. 2nd Meeting, provi3ionalrecord.
An extract from this document was sent to the Registrar of the Court by Res
pondent's Agent under caver of a letter dated 16 October 1962.50 SOUTH WEST AFRICA
the question of the system of trusteeship in mind when it drafted its
resolution on fonctions and powers under international agreements
of a technical and non-political character.
Dr. Lone Liang {China) accepted the Chairman's explanation 1."
(d) FoHowing this incident, the informai discussions mentioned above
were renewed, the Chinese delegation also participating therein. The
final outcome was that when the question of mandates was reached
in the First Committee, on 12 April 1946, the Chinese delegate,
Dr. Liang, himself introduced a new draft of which Sir Hartley·
Shawcross of the United Kingdom said, when seconding the pro
posal, that it-
"had been settled in consultation and agreement by ail countries
interested in mandates, and he thought it could, therefore, be passed
without discussion and with complete unanimity 2".
In proposing the new draft resolution Dr. Liang-'-
"recalled that he had already drawn the attention of the Committee
to the complicated problems arising in regard to mandates from the
transfer of fonctions from the League to the United Nations. The
United Nations Charter in Chapters XII and XIII established a
system of trusteeship based largely upon the principles of the
mandates system, but the fonctions of the League in that respect
were not transferred automatically to the United Nations. The
Assembly should therefore take steps to secure the continued
application of the principles of the mandates system. As Professor
Bailey had pointed out to the Assembly on the previous da.y, the
League would wislt to be assured as to the future of mandated
territories. The matter had also been referred to by Lord Cecil and
other delegates.
It was gratifying to the Chinese delegation, as representing a
country which had always stood for the principle of trusteeship,
that all the Mandatory Powers ltad announced their intention to
administer the territories under their control in accordance with
their obligations under the mandates system until other arrangements
were agreed upon. It was to be hoped that the future arrangements
to be made with regard to these territories would apply, in full, the
principle of trusteeship underlying the mandates system.
The Chinese delegation had pleasure in presenting the draft resolu
tion now before the Committee, so that the question could be
discussed by the Assembly in a concrete form and the position of
the League clarified 3." (Italics added.)
The resolution was supported by the French and Australian repre
sentatives. The French representative, speaking in support,
"... wished to stress once more the fact that all territories under
the mandate of his Government would continue to be administered
in the spirit of the Covenant and of the Charter 2". (Italics added.)
The Australian representative:
"... welcomed the initiative of the Chinese delegation in moving the
1 L.of N., O.J., Spec. SupNo. 194, p. 76.
2 Ibid .. p. 79.
3 Ibid.pp. 78-79. COUNTER-MEMORIAL OF SOUTH AFRICA # sr
resolution, which he supported. The Australian delegation had made
its position clear in the Assembly-namely that Australia did not
regard the dissolution of the League as weakening the obligations of
countri~s administering mandates. They regarded the obligations as
stillin force and would continue to administer their mandated terri
tories in accordance with the provisions of the mandates for the
well-being of the inhabitants. Over and above that, Australia recog
nized obligations under the Charter which she had already assumed
as a Member of the United Nations and others which she would
assume in bringing the Territories under the international trusteeship
system 1." (Italics added.)
The Egyptian delegate "made all reservations on behalf of his
1
Government with regard to Palestine" .
The draft resolution was putto the vote and adopted unanimously
subject to drafting, the Egyptian delegate abstaining 1•
(e) The new draft contained what eventually became the Assembly's
resolution concerning mandates. The adoption of that resolution by
the Assembly on 18 April 1946, was without discussion, save that the
Egyptian delegate indicated that he would abstain from voting by
reason of a reservation of his Government in regard to the mandate
for Palestine. The essence of the reservation appears from the
following extracts from his statement:
"The opinion of my Government is that Palestine has intellectu
ally, economically, and politically reached a stage where it should
no longer continue under mandate or trusteeship or whatever other
arrangements may be considered .... It is the view of my Govern
ment that mandates have terminated with the dissolution of the Leagtte
of Nations, and that, in so far as Palestine is concerned, there
should be no question of putting that country under trusteeship 2."
(Italics added.)
(f) Thereupon the resolution was adopted (Egypt abstaining) as follows:
"The Assembly:
Recalling that Article 22 of the Covenant applies to certain
territories placed under mandate the principle that the well-being
and development of peoples not yet able to stand alone in the
strenuous conditions of the modern world form a sacred trust of
civilization:
I. Expresses its satisfaction with the manncr in which the organs
of the League have performed the fonctions entrusted to them with
respect to the mandates system and in particular pays tribute to the
work accomplished by the Mandates Commission;
2. Recalls the role of the League in assisting Iraq to progress from
its status under an 'A'mandate to a condition of complete independ
ence, welcomes the termination of the mandated status of Syria, the
Lebanon and Transjordan, which have, since the Iast session of the
Assembly, become independent members of the world community;
3. Recognizes that, on the termination of the League's existence,
its fonctions with respect to the mandated territories will corne to
1
2 l..of N., O.].,Spec. Sup.No. 194, p. 79.
Ibid.,pp. 58-59. SOUTH WEST AFRICA
52
an end, but notes that Chapters XI, XII and XIII of the Charter
of the United Nations embody principles corresponding to those
declared in Article 22 of the Covenant of the League;
4. Takes note of the expressed intentions of the members of the
League now administering territories under mandate to continue to
administer them for the well-being and development of the peoples
concerned in accordance with the obligations contained in the respec
tive mandates until other arrangements have been agreed between
the United Natlons and the respective mandatory powers 1."
DISSOLUTION OF THE PERMANENT COURT OF INTERNATIONAL JUSTICE
42. In pursuance of a resolution of the Preparatory Commission of
the United Nations regarding the dissolution of the Permanent Court,
the Assembly of the League of Nations on 18 April r946, adopted a
resolution, the operative part of which read as follows:
"Resolves:
That the Permanent Court of International Justice is for ail pur
poses to be regarded as dissolved with effect from the day following
the close of the present session of the Assembly, but without preju
2
diceto such subsequen t measures ofliquidation as maybe necessary ."
The Period 1946-1949
43. Over the years of the Mandate's existence a growing desire had
developed amongst the inhabitants of South West Africa for closer as
sociation with South Africa and for termination of the Mandate. This
desire found concrete expression in resolutions passed by the South vVest
Africa Legislative Assembly as far back as 1934. On 14 May 1943 the
Legislative Assembly again asked for termination of the Mandate and
incorporation of the Territory in the Union of South Africa. A similar
resolution was passed on 8 May 1946.
Since these resolutions emanated from a bodv wherein the non-White
sections of the population were not directly represented, Respondent
felt that they should be fully and directly consulted as to their wishes.
Respondent had made known on a number of occasions during 1945
and 1946, its intentions as to the future of South West Africa. This was
done first at the San Francisco Conference in May 1945 3• In January
1946, at the First Part of its First Session, the United Nations General
Assembly was informed 4, and in April of that year also the League of
Nations Assembly at its final Session5, of Respondent's intention to
consuit the inhabitants of South West Africa regardïng the future of the
Terri tory.
The consultations which were thereupon conducted, resulted in an
1 L. of N., O.]., Spec. Sup.No. 194, pp. 58, 278-279.
2 Ibid., pp. 55-56, 256-257. Ail the survivinrnembers of the Court had already
on 31 January 1946, subrnittedtheir resignationsto the Secretary-General of the
:ç,eague of Nations. (Vide Rosenne, S., The InternationalCourt of justice (1957),
p. 27.)
3 Vide para. 3r, supra.
• Vide para. 35, supra.
5 Vide para. 41 (b) (ii)supra. COUNTER-MEMORIAL OF SOUTH AFRlCA 53
overwhelming majority of the non-White inhabitants of South West
Africa expressing themselves in favour of "our country [becoming] part
of the Union ·of South Africa"; 208,850 were in favour, 33,520 were
against; and 56,790 could not be consulted because of practical difficul
ties.
The results and the manner of consultation, as well as a reasoned
statement on the question of incorporation, were fully set out in a
"Memorandum on the administration of South West Africa and on the
wishes of its peoples as to the future status of the Territory", submit
ted to the Secretary-General of the .United Nations by Respondent in
October 1946 • ·
44. In November 1946 the South African representative (Field
Marshal Smuts) further elaborated on the question of incorporation in
an address to the Fourth Committee of the United Nations General
Assembly.
He dealt, inter alia, with the fundamental concepts of the mandate
system and stressed the importance of the wishes of the inhabitants of
mandated territories as to their ultimate destiny. In emphasizing that
South West Africa was "uniquely different" from other mandated ter
ritories, he referred to the statement by President Wilson at Versailles 2
as to South West Africa's future association with South Africa.
· He advanced many rea.sons why incorporation would facilitate the
administration of the Territory and would also be in the best interests
of South West Africa and beneficial to its inhabitants. He referred to
the reservation made by Respondent at the San Francisco Conference
3
in May 1945, as to the future of tlie Territory , and concluded by·
saying he wa.sconfident that the United Nations would recognize that,
Jo give effect to the wishes of the population of South West Africa,
would be "the logical application of the democratic principles of political
self-determination" and would also be-
"the inevitable fulfilment of a historical evolution which is in itself
designed to promote the best interests of the territory and confer
upon it the benefits of the membership of a larger community without
loss of those individual rights and responsibilities which the territory
·enjoyed under the Mandate 4".
Sorne days later Field-l\farsha1 Smuts also informed the Fourth
Committee that:
"It would not be possible for the Union Government as a former
mandatory to submit a trusteeship agreement in conflict with the
clearly expressed wishes of the inhabitants. The Assembly should
recognize that the implementation of the wishes of the population
was the course prescribed by the Charter and dictated by the inter
ests of the inhabitants themselves. If, however, the Assembly did
not agree that the clear wishes of the inhabitants should be im
plemented, the Union Government could take no other course th~p
1 U.N. Doc. A/123, inG.A., O.R., Firsl Sess., Second Part,.Fourth Comm~a)1I,
pp. 199-235.
z Quoted para. 7, supra.
3.Vide para. 31, supra.
• U.N. Doc. A/C.4/4r, inG.A., O.R., Firsl Sess., Second Part, Fourth Comm.,
Part I, p. 244.54 SOUTH WEST AFRICA
to abide by the declaration it had made to the last Assembly of
the League of Nations to the effect that it would continue to
administer the territory as heretofore as an integral part of the
Union, and to do so in the spirit of the principles laid down in the
mandate.
In particular the Union would, in accordance with Article 73,
paragraph (e), of the Charter, transmit regularly to the Secretary
General'of the United Nations 'for information purposes, subject to
such limitations as security and constitutional regulations might
require, statistical and othei;; information of a technical nature
relating to economic, social and educational conditions' in South
West Africa. There was nothing in the relevant clauses of the
Charter, nor was it in the minds of those who drafted these clauses,
to support the contention that the Union Government could be
compelled to enter into a trusteeship agreement even against its own
view orthose of the people concerned 1."
45. Apart from the expressed wishes of the inhabitants, the numer
ous other considerations relied on for incorporation, as set out in the
Memorandum 2 and elaborated on by Field-Marshal Smuts in his ad
dresses, included the following (briefly stated):
(a) Experience had shown that the circumstances of South West
Africa did not permit of entirely satisfactory administration under
the mandate system-or any analogous system.
(b) The geographical features and location of South West Africa, its
vast semi-desert areas, its climate and low rainfall, and its sparse
population rendered it incapable of a separate economic existence.
(c) Experience in two world wars had shown that for strategic and
security reasons South Africa and South West Africa should con
stitute a single unit.
(d) The various peoples of South West Africa had a close ethnological
and national affinity with those of South Africa-a substantial num
ber in fact being of South African origin and South African citizens.
(e) A large measure of integration of the administration of South West
Africa with that of South Africa-as sanctioned by Article 22 of the
Covenant and the Mandate-had already taken place, and further
integration was essential if the Territory were to share fully in the
advanced technical and administrative services South Africa could
.provide.
(!) South West Afrka was economically dependent on South Afrîca, not
only for financial assistance and the subsidization of its economic
life, but also as a free market for its agricultural produce.
(g) The uncertainty as to the political future of the Territory inevîtably
militated against racial tranquility and the optimum development
of the Territory.
46. ln view of the above considerations Respondent considered that
the General Assembly ought to endorse the proposai for incorporation.
The General Assembly, however, rejected (in resolution 65 (I)) the
'proposai on the ground "that the African inhabitants of South West
1 C.A., O.R., First Sess., Second Part, Fourth CommPart I, 19th Meeting, r3
Nov. 1946, p. ro2.
2 U.N. Doc. A/123. COUNTER-MEMORIAL OF SOUTH AFRICA 55
Africa have not yet secured political autonomy or reached a stage of
political development enabling them to express a considered opinion
which the Assembly could recognize on such an important question
as incorporation of their territory", and recommended that South West
Africa be placed under the international trusteeship system of the United
Nations 1• ·
In rejecting the/roposal for incorporation on this ground the General
Assembly reflecte on only one aspect of the factors favouring incor
poration, namely the expressed wishes of the population, and remained
silent on ail the others.
In Respondent's view the .other factors, especiaily those relating to
the interests of the inhabitants, were of importance and should have
been given weight in the General Assembly's consideration of the pro
posa!, particularly if there were doubts as to the ability of the popula
tion to express themselves.
From the fact that the General Assembly did not, in its resolution
65 (I), reflect on these factors at all, coupled with the nature of the
discussions in the Fourth Committee, Respondent felt justified in in
ferring that there were other reasons which had motivated the approach
of at least some Members of the United Nations to the proposai for
incorporation.
The tone of the statements made in the Fourth Committee and the
General Assembly by some delegations was regarded by Respondent
as an indication that political motivations, unrelated and even detri
mental to the interests of the inhabitants of South West Africa, would
be an inherent element in any supervisory system under the United
Nations. This, in Respondent's view, would greatly hamper its task in
administering the Territory; and as Respondent had assumed a "sacred
trust" in respect of the inhabitants, it had in any event to be mindful
of their expressed wishes and their interests.
47. In response to the General Assembly's invitation to Respondent
"to propose for the consideration of the General Assembly a trustee
ship agreement" , Respondent consequently replied by letter (of23
July 1947) to the Secretary-General, inter alia, as follows: ·
"the Union Government desire to reiterate their view that it is
implicit in the mandate system and in the mandate for South West
Africa that due regard shail be had to the wishes of the inhabitants
in the administration of the Territory. The wish clearly expressed
by the overwhelming majority of ail the native races in South
West Africa and by unanimous vote on the part of the European
representatives of the Territory that South West Africa be incor
porated in the Union therefore debars the Union Government from
acting in accordance with the resolution of the General Assembly,
and thereby flouting the wishes of those who under the Mandate
have been committed to their charge. In the circumstances the
Union Government have no alternative but to maintain the status
quo and to continue to administer the territory in the spirit of
the existing Mandate 2."
1
G.A. Resolution 65 (1), 14 Dec. 1946, in U.N. Doc. A/64/Ad1,p.123. (Quoted
in2extenso in Ipp.43-44.)
U.N. Doc. A/334, in G.A., O.R., Second Sess., Fourth Comm.,p.135. SOUTH WEST AFRICA
In the same letter Respondent referred to a resolution adopted by
the House of Assembly of the Union Parliament, on II April I947,
reading as follows:
"Whereas in terms of the Treaty of Versailles full power of
legislation and administration was conferred on the Union of South
Africa in respect of the Territory of South West Africa, subject
only to the rendering of reports to the League of Nations; and
Whereas the League of Nations has since ceasèd to exist and
was not empowered by the provisions of the Treaty of Versailles
or of the Covenant to transfer its rights and powers in regard to
South West Africa to the United Nations Organization, or to any
other international organization or body, and did not in fact do so;
and
Whereas the Union of South Africa has not by international
agreement consented to surrender the rights and powers so acquired,
and has not surrendered these by signing the Charter of the United
Nations Organization and ·remains in full possession and exercise
thereof; and ·
Whereas the overwhelming majority of both the European and
non-European inhabitants of South West Africa have expressed
themselves in favour of the incorporation of South West Africa
with the Union of South Africa;
Therefore this House is of opinion that the Territory should be
represented in the Parliament of the Union as an integral portion
thereof, and•·requests the Govemment to introduce legislation,
after consultation with the inhabitants of the Territory, providing
for its representation in the Union Parliament, and that the Govern
ment should continue to render reports to the United Nations
Organization as it has done her_etofore under the Mandate 1."
The letter also referred to the fact that "the Union Government have
already undertaken to submit reports on their administration for the
"information of the United Nations" 2• '
48. In compliance with an undertaking givèn by Respondent at the
First Session of· the General Assembly in I946, meetings were held
throughout South West Africa 'during I947 to acquaint the non-White
inhabitants with the General Assembly's resolution 65 (I). These meet
ings _showed that the overw};lelming majority wère still in· favour of
incorporation. Likewise, the South West Africa:Legislative Assembly on
7 May I947, unanimously adopted a further resolution urging. i,ncor-
P?ration. . . · · . .
, .The wishes of the people of South West Africa were again commu
3
nicated to the United Nations in a special report , ,llnd weie fµrther
elaborated on by the South African representative in tlie .Fourth Com
mittee on 25 September I947. He intimated that Respop.dent:
Would not proceed with the incorporation.of South ·West Africa;
Would consider itself under no legal obligation to propose a Trustee-
ship agreement for the Territory; · · ·
1 U.N. Doc. A/334, op. cit.p. 134.
2 Vide para. 44, supra. ·
3 U.N. Doc. A/334/Add. 1,in G.A ., O.R., Second Sess., Fourtk Comm., 136-138. COUNTER-Ml!MORIAL OF SOUTH AFRICA 57
Could not further ignore the wishes of the great majority of the in
habitants of South West Africa who favoured incorporation, by placing
the Territory under the trusteeship system; and ·
Would continue to maintain the status quo, to administer the Terri
tory in the spirit of the Mandate, and to transmit to the United Nations
for its information an annual report on the administration of tµe Terri
tory of South West Africa.
At the thirty-third meeting of the Committee on 27 September 1947,
in response to a request by the representative of Denmark for amplifica
tion of Respondent's proposai regarding maintenance of the status quo,
the representative of the Union of South Africa explained that: --·--
"the annual report which his Gûvernment would submit on South
West Africa would contain the same type of information on the
Territory as is rcquircd for Non-Self-Governing Territories under
Article 73 (e) of the Charter. It was the assumption of his Govern
ment, he saicl, that the report would not be considered by the
Trusteeship Council and would not be dealt with as if a trusteeship
agreement had in fact been concluded. He further explained that,
since'the League of Nations had ceased to exist, the right to submit
petitions could no longer be exercised, since that right presupposes
a jurisdiction which would only exist where there is a right of con
trol or supervision, and in the view of the Union of South Africa
·no such jurisdiction is vestcd in the United Nations with regard
to South West Africa 1."
·49. In November 1947 the South African representative dealt in
the General Assembly with the question of an alleged moral obligation
tü submit a trusteeship agreement-a contention based, firstly, on the
fact that ail other mandated territories had been placed under the
trusteeship system or had been offered -independence, and secondly, on
2 3
resolutions of the General Assembly of 9 February and 14 December
1946. He again stressed the many and material respects in which South
West Africa diffcred !rom other Mandated territories, and emphasized
that .Respondent would be acting in defiance of the wishes of the vast
majority of the inhabitants if a trustceship agreement were concluded.
He added that, whereas the resolution of 9 February 1946 conveyed
an invitation, and that of 14 December 1946 a recommendation, ttiat a
trusteeship agreement be submitted in respect of South West A_frica,
his Government had "conscientiously performed" its duty in giving
"most anxious consideration" to the recommendation, but could not
accede thereto •
At the same time he informed the General Assembly that-
"the Union of South Africa has expressed its readiness to submit
annual reports for the information of the United Nations. That
undertaking stands. Although these reports, if accepted, will be
rendered on·the ·basis that the United Nations has no supervisory
jurisdiction in respect of this territory they will serve to keep the
United Nations informed in much the same way as they will -be
1
2 U.N. Doc. A/422, inC.A .. O.R., Second Sess., Plenary MeetinVol. II, p. 1538.
C.A. Resolution XI (1), inU.N. Doc. A/64, p. 13.
l C.A. Resolution 65(1).
i C.A., O.R., Second Sess.Vol. I, 105th PlenaryMeeting, 1 Nov. 1947, pp. 63ff.58 SOUTH WEST AFRICA
kept informed in relation to Non-Self-Governing Territories under
Article 73 (e) of the Charter 1."
50. Despîte the above, the General Assembly adopted a resolution
maintaining its previous recommendation that South West Africa be
placed under the trusteeship system and urging Respondent to propose
for the consideration of the General Assembly a trusteeship agreement
for the Territory, motivating its resolution in the following terms:
"Whereas it is a fact that all other states administering territories
previously held under mandate have placed these territories under
the Trusteeship system or offered them independence 2."
At the Third Session of the General Assembly in 1948 the South
African representative formally reiterated-
"that the Union Government, after full consideration of ail the
aspects of the matter, had once again corne to the conclusion that
it would be in the interests neither of the Territory of South West
Africa and its people, nor of the Union and its people, to place the
Territory under the authority of the Trusteeship Councîl of the
United Nations, and that, in the circumstances, the Government
regretted not being able to comply with the request of the United
Nations Assembly to submit, voluntarily, a trusteeshipagreement3."
51. In compliance with its earlier voluntary undertaking, Respondent
submitted in Septernber 1947 a report on South West Africa for the
year 1946.
This report was submitted on the basis clearly stated in the said
undertaking, namely:
(a) that it would be for information purposes only, containing the
same type of information on the Territory as required for Non
Self-Governing Territories under Article 73 (e) of the Charter; and
(b) that Respondent did not recognize the United Nations as a super
visory authority in respect of the Territory-the reports not being
intended for use by the United Nations as if the latter were the
supervisory authority or as if a trusteeship agreement had in fact
been entered into.
After receipt of this report, the General Assembly authorized-
''the Trusteeship Council in the meantime to examine the report on
South West Africa ... and to submit its observations thereon to
the General Assembly 4".
Respondent declined an invitation by the Trusteeship Council to
send a representative to attend its examination of the report since such
action would not have been consistent with its view that the Council
was not vested with supervisory functions in respect of South West
Africa.
Respondent, however, offered to transmit further information in
writing if requested to do so. In response to such a request, further
1 G.A., O.R., Second Sess., op. cit.p. 632.
2 G.A. Resolution 14r (11),1 Nov. 1947, in U.N. Doc. A/519, p. 47.
3GA., O.R., Third Sess., Part I, Fourth Comm., 76th Meeting, 9 Nov. r948,
p. 292.
• G.A. Resolution r4r (Il). COUNTER-MEMORIAL OF SOUTH AFRICA 59
information was submitted; and in a covering letter of 31 May Respon
dent, inter alia:
"re-iterate(d) that the transmission to the United Nations of
information on South West Africa, in the form of an annual report
or any other form, is on a voluntary basis and is for purposes of
information only. They have on several occasions made it clear that
they recognize no obligation to transmit this information to the
United Nations, but in view of the wide-spread interest in the
administration of the Territory, and in accordance with normal
democratic practice, they are willing and anxious to make available
to the world such facts and figures as are readily at their disposai. ...
The Union Government desire to recall that in offering to submit
a report on South West Africa for the information of the United
Nations, they did so on the basis of the provisions of Article 73
(e) of the Charter. This Article calls for 'statistical and other
information of a technical nature' and makes no reference ta in
formation on questions of policy.
In these circumstances the Union Government do not consider
that information on matters of policy, particularly future policy.
should be included in a report (or in any supplement to the report).
which is intended to be a factual and statistical account of the
administration of the Territory over the period of a calendar year.
Nevertheless, the Union Government are anxious to be as helpful
and as co-operative as possible and have, therefore, on this occasion
replied in full to the questions dealing with various aspects of
policy. The Union Government do not, however, regard this as
creating a preccdcnt. Furthermore, the rendering of replies on
policy should not be construed as a commitment as to future policy
or as implying any measure of accountability to the United Nations
on the part of the Union Governmcnt. In this connexion the Union
Government have noted that their declared intention to administer
the Territory in the spirit of the mandate has been construed in
some quarters as implying a measure of international accountability.
This construction the Union Government cannot accept and they
would again recall that the League of Nations at its final session in
April 1946, explicitly refrained from transfer1ing its functions in
respect of mandates to the United Nations ."
When the Trusteeship Council's observations on the report on South
West Africa 2 came before the Fourth Committee in 1948, the South
African representativc referred to Respondent's earlier reservations, and
stated that, in view thereof:
"the Union could not admit the right of the Trusteeship Council to
use the report for purposes for which it had not been intended:
still less could the Trusteeship Council assume for itself the power
claimed in its resolution i.e. 'to determine whether the Union of
South Africa is adequately discharging its responsibilities under the
terrns of the mandate ... .' Furthermore, that power was claimed in
respect of a territory which was nota trust territory and in respect
of which no trusteeship agreement existed. The South African
1 U.N. Doc. T/175, 3 June1948, pp. ii-iii.
2G.A., O.R., Third Sess., Sup. No. 4 (A/603pp.42-45.6o SOUTH WEST AFRICA
delegation considered that in so doing the Council had exceeded
its powers 1."
The South African representative also observed that the Trusteeship
Council, in dealing with the report, apparently considered that it had
a supervisory fonction in respect of South West Africa and that Respond·
ent was accountable to it for the administration of the Territory
which was not in accordance with the basis of the undertaking with
regard to reports 2•
52. Respondent does not deal here with the substance of the Trustee
ship Council's comments on the report3. What is relevant, however, is
that those comments and the subsequent discussions thereon did not
observe the reservations under which the report had been submitted.
Moreover, many of the conclusions contained in the Trusteeship
Council's observations were apparently based on misconceptions as to
conditions in the Territory, and the discussions in the Fourth Commit.
tee made it clear to the South African delegation that similar miscon·
ceptions existed also amongst some of the Members of that Committee.
The South African representative consequently dealt at length with con
ditions in the Territory 4 in order to acquaint the Committee with the
true facts. lt was found, however, that. a majority of Members did not
pay regard to the information given, and some continued with prepared
speeches based on the Trusteeship Council's obser_vations and the mis
conceptions involved therein-a fact to which the South African repre·
sentative drew attention 5.
Representatives of certain States also used the occasion for attacking
Respondent's domestic policies in the Union. The South African repre·
sentative had occasion to point out that such attacks,. based on un
founded allegations, were unrelated to the welfare of the peoples of
South West Africa.
In a statement to the General Assemblv on 26 November 1948,
after explaining once more the reasons wh)' South Africa could not
enter into a Trusteeship agreement, the South African reprcsentative
in conclusion recalled :
"that the League of Nations, at the last session of its Assembly, had
Îlot referred to Trusteeship Agreeme.nts and had simply stated
that territories should be administered as heretofore until other
arrangements could be made. The Union· was anxious to make
arrangements which would be satisfactory to all concerned. AH he
asked the General Assembly was that it should not make his
Government's task more diffi.cultand should believe in his country's
good faith as the previous Mandates Commission had done. The
Union was not likely to do anything in connexion with the territory
. of South West Africa which might earn the ill-will of,other nations.
1G.A ., 0.R.,Third Sess., Part I, Fourth Comm., 76th Meeting, 9 N'ov. 1948,
p. 288.
• Ibid.,77th Meeting, JO Nov. r948, p. 297. ·
3 Vide para. r,supra.
• G.A ., O.R., Third Sess., Part I, Fourth Comm., 78th Meeting, 11 Nov. 1948,
pp. 308 ff.
5 Ibid., 8rst Meeting, r6 Nov. 1948, pp. 343-344. COUNTER-MEMORIAL OF SOUTH AFRICA 61
He asked the Assembly to keep the door open for other arrange
ments ."
The majority in the Gencral Assembly nevertheless supported a reso
lution maintaining its previous requests that South West Africa be
placed under the United Nations trusteeship system and expressing
regret that Respondent had not yet done so. This resolution (227 (l1I))
also contained the following recommendation:
"... Without prejudice to its resolutions of 14 December 1946,
and 1 November 1947, that the Union of South Africa, until agree
ment is reached with the United Nations regarding the future of
South West Africa, continue to supply annually information on
its administration of the Territory 2."
53. In a letter of II July 1949 to thé Secretary-General, Respondent
referred to the previous explanations for its inability to place South
West Africa under the United Nations trusteeship system and, in
referring to resolution 227 (III), stated, inter alia,
"The recommcndation of the General Assembly that the Union
should continue to supply information on its administration of
South West Africa has been given most careful consideration.
It will be recalled, however, that the Union Government have
at no time recognized any legal obligations on their part to supply
information on South West Africa to the United Nations, but in a
spirit of goodwill, co-operation and helpfulness offered to provide
the United Nations with reports on the administration of South
West Africa, with the clear stipulation that this would be done
on a voluntary basis, for purposes of information only and on the
distinct understanding that the United Nations has no supervisory
jurisdiction in South West Africa. In this spirit a report was sub
mitted in 1947, and in 1948 detailed replies were furnished to a
subsequent questionnaire, formulated by the Trusteeship Council. It
was emphasized at the time that the forwarding of information on
policy should not be regarded as creating a precedent, or construed
as a commitment for the future or as implying any measure of
accountability to the United Nations on the part of the Union
Government. The Union Government also expressed their confi
dence that the Trusteeship Council would approach its task in an
entirely objective manner and examine the report in the same
spirit of goodwill, co-operation and helptulness as had motivated
the Union in·making the information available.. .
These hopes have not been realized. Jnstead the submission of
information has provided an·opportunity to utilize the Trusteeship
Council and the Trusteeship Committee as a forum for unjustified
criticism and censure of the Union Government's administration
not only in South West Africa but in the Union as ,vell. Inferences
and deductions have been drawn from the information submitted
which are quite inconsistent with facts and realities. The misunder
standings and accusations to which the United Nations discussions
1 G.A., O.R., Third Sess., PartFourth Comm., r64th Plenary Meeting, 26 Nov.
r94S, pp. 589-590.
i G.A. Resolutio11 227 (III26 Nov. 1948, in U.N. Doc. A/810, pp. 89-gr. SOUTH WEST AFRICA
62
of this subject have given rise have had repercussions both in the
Union and in South West Africa, with deleterious effects on the
maintenance of the harmonious relations which have hitherto
existed and are so essential to successful administration. Further
more, the very act of submitting a report has created in the minds
of a number of Members of the United Nations an impression that
the Trusteeship Council is competent to make recommendations
on mattcrs of internai administration of South West Africa and
has fostered other misconceptions regarding the status of this
Terri tory.
In these circumstances the Union Government can no longer see
that any real benefit is to be derived from the submission of special
reports on South West Africa to the United Nations, and have regret
fully corne to the conclusion that in the intcrests of efficient admini
stration no further reports should be forwarded. In coming to this
decision the Union Government are in no way motivated by a
desire to withhold from the world factual and other information
rcgarding South West Africa published in accordance with the
customary practice of democratic nations, and information of this
nature previously embodied in annual reports to the League of
Nations or the United Nations will continue to be made available
to the general public in the form of statistics, departmental
reports by the Administrator to the South West African Legislaturc,
blue books, and other governmental publications 1."
At the Fourth Session of the General Assembly in Septembcr 1949
the South African representative (with reference to the aforesaid letter)
dealt fully with Respondent's decision to discontinue the submission of
reports 2.
54. In the premises aforestated the following statements by the
Applicants regarding the events over the years 1946 to 1949 are
unfounded:
(a) "The Union's announcement [that submission of reports would be
discontinued) signalled i'tsrepudiation of previous explicit commitments 3.''
There was neither an explicit commitment nor a repudiation.
From the outset Respondent had made it clear that reports would
be submitted voluntarily, for information purposes only and not in
recognition of any supervisory functions vested in the United Nations.
This was Respondent's attitude throughout and was explicitly re
peated in statements to, and correspondence with, the United Nations
over the years under consideration. When therefore, the General Assem
bly failed to observe the rescrvations attached to Respondent's under
taking, withdrawal thereof did not involve a repudiation of a commit
ment 4•
(b) "By November, I948, the Uni'on Government was openly denyi'ng
1
2 U.N. Doc. A/929, in G.A., O.R., Fourth Sess.. Fourth Comm., Anne:r, p. 7.
3 G.A ., O.R., Fourth Sess., Fourth Comm., I28th Meeting, r8 Kov. 1949, p. 200.
4 Vide 1,p.47.
The General Assembly itseH in this regard recorded that Respondenthad "with·
drawn its previous undertaking" (G.A. Res. 337 (IV)) in preference to earlier
proposed wording objected to by Respondent to the effect that it had "repudiated
its previous assurance". Vide G.A ., 0.R.,Fourth Sess., 269th Plenary :\leeting,
6 Dec. 1949, p. 535. COUNTER-MEMORIAL OF SOUTH AFRICA
ifs obligations under the Mandate and insisting-in contradiction to its
statements of a year earlier-that the Mandate had expired 1."
In support of this contention Applicants refer to a statement by Mr.
Eric Louw, the representative of South Africa, in November 1948, in
which he referred to the "previous Mandate, since expired".
From the outsct, and throughout the years under consideration, Res
pondent had repeatedly stated its intention to observe the "sacred
trust" which it had assumed, and to administer the 'ferritory "in the
spirit of the Mandate". .
In fact, the very statement of .Mr.Louw, referrcd to above, contained
also the following:
"It is the firm intention of the South African Government to
administer the tcrritory in the spirit of the mandate which was
originally conferred upon the Union, and that it will at all times
promote to the best of its ability the wellbeing of all sections of
the population.
In making this statement, I am obliged to add that the words
'the spirit of the mandate' should not be interpreted as including
obligations other than that stated in the preceding sentence. It is
unfortunately necessary for me to state this proviso because of
the fact that the same phrase, when used by the previous govern
ment, was later interpreted in a manner which was not in accordance
wit1:ithe intentions of the then government ."
This attitude was repeated in the following statement of the South
African representativc to the General Assembly on 6 December 1949:
"My Government is fully conscious of that trust, and whatever
our critics may say, it has never deviated from the path along
which it is endeavouring to lead the peoples of South West Africa
to the achievcment of that degree of development which is their
right and which it is my Government's duty to ensure to them 3."
On the other band, Respondent had from the dissolution of the
Leaguc taken up the attitude that the Mandate in its original form,
and with the obligations imposed therein, particularly that of accoun
tability to the League of Nations, had not survived the League 4•
Respondent, therefore, while denying that the United Nations was
vested with supervisory functions over South West Africa (an attitude
maintained throughout) at the same time intimated that it would ob
serve the "sacred trust" assumed under the Mandate and would ad
minister the Territory in the spirit of the Mandate (also an attitude
maintained throughout).
(c) "It is apparent /rom the history summarized above that in the
f•eriod r946-r949, the Union's policy concerning the Mandate underwent
a marked change. At the beginning of the period, the Union conceded
the existence of the Mandate and its obligations thereunder. including that
1 Vide I,p.47.
2 Verbatim text. A summary appears in·G.A ., O.R., Tliird Sess., Fourth Comm.,
76th Meeting, 9 Nov. 1948, pp. 292-293.
3 Verbatim text. A surnmary appears in G.A ., O.R., Fourtli Sess., 269th Plenary
Meeting, 6 Dec. 1949, para. 9. p. 524.
• Vide, e.g., statementby Field-Marshal Smuts of November 1946, quoted in para.
H, supra, and extract from letter of 23 July 1947, cited in para. 47supra. SOUTH WEST AFRICA
of rendering reports to the United Nations. By the end of the period, the
Union was referring to the Mandate as 'the previous Mandate, since expired',
insisting that the administration of the Territory was a matter sole/y of
internal concern, and refusing to render reports to the United Nations 1."
Respondent's policy underwent no marked change over the period
1946-1949, particularly in that:
(i) At no time alter the dissolution of the League did Respondent
concede the existence of the Mandate in its original form and as
still encompassing its original obligations.
(ii) Respondent throughout denied that the United Nations was vested
with any supervisory functions in respect of South \Vest Africa
and throughout denied that it was obliged to rendcr reports to the
United Nations.
(iii) Respondent throughout maintained its expressed intention to ob
serve the "sacred trust" which it had assumed and to administer
the Territory in the spirit of the Mandate.
55. The statement by the representative of Liberia quoted at I,
page 47, to the effect that Respondent wished to have the annexation of
South West Africa accepted as a "fait accompli", was unfounded and
was, at the lime, specifically dcnied by the South African representative
who said, inter alia, the following:
"I endeavoured to prove to the Committee that not only was the
doser association between the Union and the territory, ... within
the authority conferred upon my Government by the mandate,
but also that it was not 'anncxation'-the tcrritory having retained
its separate identity ...
Yet my Government was accused of having unilaterally annexed
the territory and of having placed this organization before an ac
complishcd fact. This criticism was maintained throughout our
debates-and that despite the facts of the case to which my delega
tion repeatedly drew attention. Surely, argument however frank
and honest, cannot prevail under such circumstances 2.''
The General Assembly, in resolution 227 (III) of 26 November 1948,
took note of Respondent's assurance that its contemplated legislation
for doser association "does not mean incorporation".
Respondent had previously made it clear that it did not intend pro
ceeding with its proposa! to incorporate South West Africa in the face
3
of the United Nations rejection of that proposa! •
56. The General Assembly in 1949 decided to ask the Court for an
Advisory Opinion. But it is somewhat misleading to suggest, as the
Applicants do, that this happened because-
"it was obvious that the Union's concepts· of ·its legal obligations
under the Mandate were essentiallV at variance with those of most
other United Nations Members ... ~.• ".
lndeed there was major disagreement between other United Nations
Members themselves as to certain .aspects of the legal situation which
1
2 Vide I, p. 48.
Verbatim text. A summary appears in G.A., O.R., Fourth Sess., 269th Plenary
Me3ting, 6 Dec. 1949, paras. 13 and 14, p. 524.
Vide, e.g., paras. 44 and 47, supra.
• Vide I,p. 48. COUNTER-MEMORIAL OF SOUTH AFRICA 65
had arisen, particularly with regard to the question whether Respon
dent was obliged to submit a trusteeship agreement for South West
Africa 1.
On the other hand, in view of Applicants' Submissions 2, 7 and 8 in
these proceedings, concerning supervisory functions, reports and peti
tions, it is of particular importance to note that there was substantial
agreement between Respondent and the other United Nations Members
to the effect that the supervisory powers of the League had not been
transferred to the United Nations in respect of Mandates not converted
into trusteeships.
In order to facilitate an accurate review of the attitudes of United
Nations Members in this last-mentioned respect, Respondent attaches
an Annex, marked "A", the First Part of which comprises an index to
statements made by the representatives of ail the States which parti
cipated in debates on South West Africa over the years 1947, 1948 and
1949, and the Second Part of which contains extracts from statements
2
made by representatives of certain States over the said years •
ln the following paragraphs, Respondent indicates briefly what il
submits to be significant aspects emerging from the contents of Annex A.
57. (a) As reflected in the First Part of Annex A, the representatives
of 41 Member States addressed the various organs of the United Nations
-the Fourth Committee, the Trusteeship Council and the General
Assembly-during the year 1947 on the question of South West Africa 3•
(b) The statements made by the South African representatives con-
veyed Rcspondent's attitude clearly and unambiguously, namely
that Respondent was not obliged to conclude a trusteeship agree
4
ment for South West Africa, and was not prepared to do so ,and
that, in the absence of a trusteeship agreement, the United Nations
had no supervisory jurisdiction over South West Africa 5• In this
attitude Respondent remained consistent throughout.
(c) With regard to the other 40 States which participated in the debates
during 1947, one finds that they differed in their attitudes re
garding various aspects of the situation.
Sorne contended that Respondent was legally obliged to enter into
a trusteeship agreement concerning South West Africa; others
denied such an obligation 6•
1
Vide summary of attitudes of Members as given in the \Vritten Statement of the
United States of America in International Status of South-West Africa, Pleadings,
Oral Arguments, Documents, pp. 122-123, from which it appears that States which
took part in debates on this particular question were more or less equally divided.
2 Respondent's proposai regarding incorporation of South \Vest Africa was
rejected by the resolution of the General Assembly on 14 Decernber 1946. Debates
regarding Respondent's obligations under the I\fandate, as a result of the rejection
of 3he incorporation proposai, started in 1947.
In 1947 the Members of the United Nations totalled 57, of whom 51 were original
Members. Of the 51, 34 had been original :Members of the League of Nations and
32 had been Members of the League at the time of its dissolution.
4 G.A .,0.R., First Sess., Second Part, Fottrth Comm., Part I. 19th Meeting. 13
Nov. 1946, pp. rn1-102. and G.A., O.R., Second Sess., Fourth Comm., 31st Meeting,
25 Sep. 1947, pp. 3-9.
j G.A., O.R., Second Sess., Fourth Comm., 33rd Meeting, 27 Sep. 1947, pp. 13-18,
and G.A .. O.R., Second Sess., rn5th Plenary Meeting, 1 Nov. 1947, pp. 626-638.
Vi6e paras." 48 ta 51, supra.
Vide footnote 1, above.66 SOUTH WEST AFRICA
Sorne States contended for an obligation on the part of Respon
dent to submit to the Secretary-General in terms of Article 73 ( e)
of the Charter, statistical and other information of a technical
nature-a different and very much lesser obligation than that of
·reporting and accounting under the Mandate.
Other States again expressed the view that Respondent, in under
taking to submit annual reports for the information of the United
Nations, had committed itself to the United Nations. This view
could onlyrest on a misconception of the nature and extent of Respon
dent's voluntary undertaking, which was later withdrawn 1•
There were also States that contended that the Mandate had
lapsed altogether, aud others that contended not for legal obligations
on the part of Respondent, but for obligations which they termed
"political" or "moral".
But, whatever these differences, one thing is clear, and that is
that not a single State, in response to Respondent's attitude, either
alleged or suggested that there was at any time an agreement, ex-
. press or implied, or any understanding, whereby the League's super
visory powers over the Mandate became vested in the United Na
tions, or whereby Respondent became obliged to report and account
to the United Nations regarding compliance with substantive
mandate obligations .
.(d) At least 14 of the 41 States which took part in the debates acknow
ledged, either expressly or by clear implication, that in the absence of
a trusteeship agreement the United Nations would have no super
visory powers in respect of South West Africa. These States were
Australia, China, Colombia, Cuba, France, India, Iraq, the Nether
lands, New Zealand, Pakistan, the Philippine Republic, the Soviet
Union, the United States of America and Uruguay. Extracts from
the statements made by representatives of these 14 States are
quoted at pages 275 to 282 of the Second Part of Annex A.
It is not necessary to recite ail such extracts. The following are indi
cative of the tenor of the statements made:
Mr. Gerig,representative of the United States of America, in theTrustee
ship Council on r2 December r947:
"It was said here earlier this afternoon, and l did not hear any
memb"" abject, that white we ail hope-my delegation as much as
any delegation feels that way-that there will be a trusteeship
agreement for this territory [South West Africa], we do no/, in the
absence of a trusteeship agreement, have supervisory functions over
this territory. Therefore, I do not think we ought to imply that we
do have supervisory fonctions to ensure that the Union Government
discharges its duties under the present mandate, admitting that it
exists." (Italics added.)
Mr. Kerncamp, representative of the Netherlands in theGeneralAssem
bly on r November r947:
"The mandate system now does not operate. As there is no longer
a supervising authority, there is no longer a mandate system. The
voluntary transmission of information, merely for the sake of in
formation, by the Union of South Africa to the Trusteeship Council
1
A matter dealt with in paras. 44 and 48 to 53, supra. COUNTER-MEMORIAL OF SOUTH AFRICA
does not give the Council the same jurisdiction as the Permanent
Commission on Mandates had .
. . . we consider that the present situation constitutes a step back
ward, in so far as a territory once under international supervision is
now under no superi"ntendence... " (Italics added.)
Draft resolution proposed by the representative of India in the General
Assembly on I OctoberI947 (para. 5):
"Whereas the territory of South West Africa, though not self
governing, is at present outside the control and supervision of the
United Nations." (Italics added.)
The statements on behalf of Pakistan and China were equally expli
cit, and those on behalf of Australia also very clear on the point. In
other cases the attitude emerged by necessary implication. Thus the
representatives of Colombia, Iraq, the Soviet Union and Uruguay, con
sidered that the Mandate had lapsed altogether~from which would
follow that there could be no duty of reporting and accounting with
regard to Mandate obligations. And in the cases of France, New Zea
land, Cuba and the Philippine Republic the statements were to the
effect that the information in fact submitted by South Africa could be
examined for information purposes only, or not at all.
58. During the years 1948 and 1949, in debates on South West" Africa,
similar views were expressed also on behalf of at least four other States.
They were Canada 1,Costa Rica 2,Greece 3,and the United Kingdom 3.
With a view to curtailment of the record, the extract from the state
ment made by the representative of the lastmentioned State only is
recited here.
Sir Terence Shone, in the Fourth Committee on 24 November I949:
"It could not be said that the Government of the Union of South
Africa had repudiated its previous assurance [concerning rendering
of reports J since it had complete liberty to decide whether or not to
transmit information." (Italics added.)
59. Also in respect of other mandated territories, similar views were
expressed from time to time up to 1948 by representatives of Member
States.
(a) In a debate concerning a draft Trusteeship Agreement for Western
Samoa in a sub-committee of the Fourth Committee on 22 Novem
ber 1946, the representative of New Zealand stated as follows:
"New Zealand, although it would be most co-operative, could not
be forced to amend its draft agreement. The result of disapproval
of the draft agreement by the General Assembly would be that
New Zealand would carry on, as in the past, its sacred trust to lead
the people of Samoa in their orderly progress towards self-govern
ment. In titis eventuality, New Zealand would have to carry on.without
the privilege ofthe supervision by the United Nations whichitdesired 4."
(Italics added.)
2 Vide Annex A, Second Part, p. 285, infra.
Ibid., p. 282.
' Ibid.,p.286.
~ G.A ., 0.R .. First Sess., Second Part, Fourth Comm., PaII, 5th l\Ieetîng, 22
Nov. 1946, p. 28.68 SOUTH WEST AFRICA
(b) On 2 April 1947, during the 124th Meeting of the Security Council,
there was a discussion of a draft trusteeship agreement for the
former Japanese Mandated Islands, more particularly with refer
ence to a Polish amendment to insert in the preamble the words:
"W hereas J apan has violated the terms of the above mandate of the
League of Nations and has thus forfeited her mandate . ... 1"
Mr. Gromyko'sstatcment, on behalf of the Soviet Union, contained,
inter alia, the following:
"Jt seems to me that there is no need for such an amcndmcnt.
There is no continuity, either legal or otherwise, betweenthe mandatory
system of the Leagm: of Nations and the Trusteeship System laid down
in the United Nations Charter. There is therefore nothing which
might cntitle the Security Council to discuss this question, let
alone take any decisions on it. The mandatory system of the League
of Nations is distinct from the Trusteeship System which the United
Nations is now trying to establish." (Italics added.)
After referring to "a difference in the fondamental principles" of
the two systems, he proceeded:
"I t seems to me, moreover, that in this connexion we should not
lose sight of the fact that, since there is no continuity such as would
permit and justify the discussion of this question by the Security
Council, the latter cannot investigate the substance of the matter.
For the reasons which r have just stated, the Security Coimcil ls
not competent to decide to what extent Japan may have violated the
conditions of the mandate system and the dulies involved in the ad
ministration of mandated territories 2." (Italics addcd.)
(c) The case of Palestine was investigated and reported upon by a
United Nations Special Committee, consisting of representatives
of the following II Members of the United Nations: Australia,
Canada, Czechoslovakia, Guatemala, India, Iran, the Nethcrlands,
Peru, Sweden, Uruguay and Yugoslavia.
The following are extracts from the Committee's report dated 3
September 1947, ail from portions unanimously agreed to by the
Committee.
"Following the Second World \Var, the establishment of the
United Nations in 1945 and the dissolution of the Leaguc of Nations
the following year opened a new phase in the history of the manda
tory régime. The mandatory Power, in the absence of the League
and its Permanent Mandates Commission, had no international
' authority to which it might submit reports and generally account for the
exercise of its rcsponsibilitics in accordance with the terms of the
Mandate. Having this in mind, at the final session of the Lcague
Assembly the United Kingdom representative declared that Palestine
would be administercd 'in accordance with the general principles' of
the existing Mandate until 'fresh arrangements had been reached' 3.''
{Italics added.)
After recommending unanimously that: "The Mandate for Palestine
1 S.C., O.R., Second Yea~. No. 31, 124th Meetinz Apr. 1947, pp. 643-644.
2 Ibid., p. 648.
3 G.A., O.R., Second Sess., Sup. NII,Vol. I (A/364), pp. 26-27. COUNTER-MEMORIAL OF SOUTH AFRICA 69
1
shall be terminated at the earliest practicable date ", the Com
mittee commented as follows:
"(d) It may be seriously questioned whether, in any event, the
Mandate would now be possible of execution. The essential feature
of the mandates system was that it gave an international status
to the mandated territories. This involved a positive element of
international responsibility for the mandated territories and an
international accountability to the Council of the League of Nations
on the part of each mandatory for the well-being and development
of the peoples of those territories. The Permanent Mandates Com
mission was created for the specific purpose of assisting the Council
of the League in this function. But the League of Nations and the
Mandates Commission have been dissolved, and there is now no
means of discharging Jully the international obligation with regard
to a mandated territory other than by placing the territory under the
International Trusteeship System of the United Nations.
(e) The International Trusteeship System, however, has not
automatically taken over the functions of the mandates system with
regard to mandated territories. Territories can be placed under
Trusteeship only by means of individual Trusteeship Agreements
approved by a two-thirds majority of the General Assembly.
(/) The most the mandatory could now do, therejore, in the event
of the continuation of the Mandate, would be to carry out its adminis
tration, in the spirit of the Mandate, without being able to discharge
its international obligations in accordancewith the intent of the man
dates system. At the time of the termination of the Permanent
Mandates Commission in April I946, the mandatory Power did, in
fact, declare its intention to carry on the administration of Palestine,
pending a new arrangement, in accordance with the general prin
ciples of the Mandate. The mandatory Power bas itself now referred
the matter to the United Nations 2." (Italics added.)
The report also contained a special note by Sir Abdur Rahman,
representative of India, in which note the followingpassage occurred:
"Moreover, the international machinery in the form of the Per
manent Mandates Commission, which had been created for the
purpose of scrutinizing the actions of the Mandatory Powers, and to
which they were bound to submit annual reports, has, along with
the League of Nations, ceased to exist. There are no means by which
the i·nternaHonalobli"gationsùt regard to mandates can be discharged
by the United Nations.
The Mandate has in any case become infructuous, and must, in
my opinion, go. Whether it could be superseded by any other
system within the present Charter is a different matter, and will
3
be dealt with when I consider the solution of thepresent problem ."
(Italics added.)
(d) In a debate regarding Palestine in the Security Council on I9
March 1948, the representative of the United States of America
stated:
1G.A., O.R., Second Sess., Sup. No11, Vol. I (A/364), p. 42.
2 Ibid.p. 43.
3 Ibid.Vol. Il (A/364/Add. 1),p. 38.70 SOUTH WEST AFRICA
"The United Nations does not automatically fall heir to the
responsibilities either of the League of Nations or of the Mandatory
Power in respect of the Palestine Mandate. The record seems to
us entirely clear that the United Nations did not take over the League
of Nations Mandate system 1." (Italics added.)
60. It was only as !rom the end of 1948 that certain States voiced
any contradiction at all to Resporident's above contention regarding
supervisory jurisdiction in the absence of trusteeship. This contradic
tion came !rom five States: Belgium, Brazil, Cuba, India and Uruguay.
The view expressed by the representative of Belgium was that Article
Boof the Charter preserved the benefits of international supervision for
2
the people of South West Africa •
The representative of Brazil took up the attitude that, inasmuch as
South West Africa had been placed under the mandate system of the
League of Nations, it was "under the supervision of the community of
Nations, namely the General Assembly" 3•
On behalf of Cuba, the view was put in 1949 that "the rights and
dulies of the United Nations were the same as those of the League of
Nations for both organizations represented the international com
munity"4.
The representative of India contended in 1948 that:
"The provisions of Article Bo of the Charter, safeguarding the
existing rights of the people of South West Africa until a Trustee
ship A(:Ceement had been concluded, had to be recognized. One of
these nghts, under the mandate system, had been the examination,
by the Permanent Mandates Commission, of annual reports ...
That right could not be extinguished merely because the Permanent
5
Mandates Commission had ceased to exist ."
The argument advanced by the representative of Uruguay in 1948
was that Article Boof the Charter "safeguarded the rights of indigenous
populations and imposed on the administering authorities the duty of
reporting progress and of communicating to the international commu
nity how they were fulfilling their obligations". The argument then
proceeded on the line that the United Nations had taken the place of
the League of Nations as the "co-ordinating centre" of the "civilized
and organized international collectivity" with the result that it was
"through the organization [United Nations] that the Union of South
Africa should fulfil its obligations towards the international community
and give an account of its administration" 6•
In the cases of the lastmentioned three States, Cuba, India and
Uruguay, these contentions were in conflict with the statements made,
or attitudes adopted, by them in 1947. ·
For the earlier statement by the representative of Cuba, see Annex
A, Second Part, page 276, infra.
ln the case of lndia, reference is made to paragraph 57 (d), supra.
Attention is also drawn to the report on Palestine, paragraph 59 (c),
1 S.C., 0.R., Third Year, Nos. 36-51, 271st Meeting, 19 Mar. 1948, p. 164.
2 Annex A, Second Part, p. 282, infra.
3 Ibid., p. 285.
4 Ibid., pp. 285-286.
6 Ibid., p. 283.
Ibid., pp. 284-285. COUNTER-MEMORJAL OF SOUTH AFR1CA
supra, and to the written statement submitted by India in the 1950
Advisory Proceedings, which contained the following:
"It is respectfully submitted that the only respect in which the
position has changed [as a result of the dissolution of the League]
is that Article 6 of the Mandate and the first portion of Article 7
of the Mandate have become incapable of being complied with.
In other respects, the rights and obligations of the mandatory
are exactly the same as they were before. The result is that the
mandatory is not obliged to submit an annual report under Article
6 and that it cannot modify the terms of the Mandate at ail because
the procedure by which it could have modified the terms of the
Mandate has ceased to be applicable 1."
And, in the case of Uruguay, the statement made by its representative
in 1948 runs counter to the contention advanced on its behalf in 1947 2
and to its attitude concerning the Mandate for Palestine 3'.
The Period 1950-1960
INTRODUCTION
6r. A port4on of Applicants' Memorials with the same heading as
the above contains a brief summary of events over the period 1950-
1960..The broad outlines of fact as presented therein are substantially
correct; but certain statements require comment with a view to proper
perspective. ·
(a) The importance of the "restrictive nature" of the Ad Hoc Com
mittee's terms of reference 5 will be dealt with below in the year-by
year chronology of events. There was, however, a further important
reason, also reverted to below, for the failure of the negotiations
between Respondent ~nd this Committee. This was the insistenéeby
the majority of Members in the General Assembly that Respondent
should place South West Africa under United Nations trnsteeship
despite Respondent's objections and the Court's Opinion that it was
not obliged to do so.
(b) While the reports of the Committee on South West Africa have
in fact "annually criticized the Union sharply for t~e manher in
which the Union administers the territory " 6,the question whether
the criticism was justified is not canvassed in this part of the
Counter-MemoriaF. Respondent on-many occasions protested that
the Committee's findings were based on unreliable inforT1?,ation
and were unjustified.
(c) The statement that "the Union has refused to co-operate with
6
the Committee" (on South West Africa) is an over-simplification,
possibly derived from .the Committee's own interpretation of the
1 International Status of South-West Africa, Pleadings, Oral ArgUinents, ·Docu-
ments, p. 148.
2
3 Asto which vide Annex A, Second Part, pp. 281-282, infra.
4 Asto which vide para . .59 (c), supra
Vide I, pp. 48-51.
5 Ibid.,p. 49.
6 Vide I, p.50.
7 Vide para. I, supra. SOUTH WEST AFRICA
situation. The statement is correct in so far as it signifies that
Respondent was not prepared to accept supervision by the Corn
mittee of the administration of South West Africa. Failure of
negotiations, howcver, was again due mainly to the restrictive terms
of reference on which the Committee was to negotiate, as will be
dealt with later.
(d) The account of negotiations between Respondent and the Good
Offices Committee Imakes no mention of the fact that thcre was, as
between Respondent and that Cornmittee, agreement as to the
possibility of an approach which merited investigation, but that the
Committee's recommendation in that regard was rejected by the
majority in the General Assembly-a matter more fully dealt with
later. Moreover, the words "existing rights of the United Nations to
supervise the administration of the Mandate" 1 beg the question
in respect of one of the vital issues requiring negotiation. For
reasons to be dealt with later, Respondent was unable to acccpt the
1950 Advisory Opinion of the majority of the honourablc Court
with regard to supervision, on which Opinion the refercncc to
"existing rights" is apparently based.
(e) The statement that "repeated debates and resolutions have failed
to bring about the Union's compliance with the Mandate" 2also
involves an assumption consistently disputed by Respondent.
Respondent maintains that it faithfully honours the spirit of the
Mandate in the administration of the Territory (a matter not
3
canvassed herein )and that it owes no accountability to the United
Nations in respect thereof, a matter fully dealt with later.
SUMMARY OF THE COURT'S ADVISORY OPINIONS
62. Applicants' summary of the Court's three Advisory Opinions as
set out in the Memorials" does not require comment save tha.t with
regard to the Advisory Opinion of II July r950, Respondent desires
to draw attention to the following:
(a) The following quotation from the Opinion of the majority, namely
that Respondent's obligations under the Mandate-
"represent the very essence of the sacred trust of civilization.
Their raison d'êtreand original object remain. Since their fulfilment
did not depend on the existence of the League of Nations, they
could not be brought to an end merely because this supervisory
organ ceased to exist. Nor could the right of the population to have
the Territory administered in accordance with these rules depend
thereon",
was clearly intended to apply only to the obligations relatin~ to
the administration of the Territory, and not to the obligations
relating to the machinery for implementation, i.e., the obligations to
5
accept international supervision and to submit reports •The last-
1 Vide I, p.50.
2 Vide I, p.51.
3 Vide para. r, supra.
• Vide I, pp.51-54.
' lnternational Status of South· West Ajrica, Advisory Opinlo.C.J. Report.- I<J50,
p. 133· COUNTER-MEMORIAL OF SOUTH AFRICA
73
mentioned obligations were stated by the majority of the Judges
to be "an important part of the mandates system" .
(b} Applicants' statement that-
"The Court affirmed the Union's international obligations under
Article 22 of the Covenant and under the Mandate, including the
duty to render annual reports and to transmit petitions from in
habitants of the Territory, and confirmed as well the power of the
United J\'ations to exercise supervisory fonctions and to receive
the annual reports and petitions 2",
reflects the majority opinion only. Two Judges (McNair and Read)
dissented, expressing the view that the supervisory powers of
the League had not passed to the United Nations, and that Re
spondent was not obliged to submit reports and transmit petitions
tothe United Nations.
Respondent will not deal here with the reasons advanced by the
Court for its conclusions, but will do so in stating Respondent's legal
contentions in Chapters III to V below.
YEAR-BY-YEAR CHRONOLOGY OF RELEVANT EVENTS: 1950-196o
r950
63. When the Fourth Committee considered the Court's Advisory
Opinion of II July 1950 the South African representative stated at
the outset that Respondent's attitude to the Opinion was "a matter
in which his Government would have to define its position at a later
moment" in the light of the debate in, and any resolution which might
eventually emanate from, the General Assembly. He assured the Fourth
Committee that Respondent did not wish to close the door to a friendly
solution of a question which had been in dispute for so long and hoped
that the United Nations would not do so either. He pointed out that
while the Court's Opinion was entitled to the greatest respect, it w~
not automatically binding on the parties concerned, as would be a
judgment.
Furthermore, since the Court had given its Opinion, important facts
had corne to light bearing directly on the reasoning and conclusions
of the Court with regard to certain material points. He contended that
if these facts had been placed before the Court it would probably not
have corne to the conclusion reached (in the majority opinion) with
regard to transfer to the United Nations of the League's supervisory
fonctions.
As to the additional facts which had corne to light he dealt at length
with the circumstances surrounding, and the developments leading up
to, the adoption by the League of its resolution of 18 April 1946, with
special reference to the first Chinese draft resolution 3•
He stated that the additional information had to be carefully weighed
and considered by his Government together with:
(a} the fact that several widely varying interpretations of the Court's
Opinion had been put forward in the Fourth Committee; and
1 International Status of South-West Africa, op. cit136..
2 Vide I,p.52.
3 Vide para.41, supra. SOUTH WEST AFRICA
74
(b) the attitude of the United Nations in regard to the international
position of South West Africa as expressed in any resolution by the
General Assembly.
He concluded his statement as follows:
"It would be premature to expect me to say or do anything
which could possibly be interpreted as binding my Govemment in
any way until it has had every opportunity of considering fully
1
and carefully the whole problem in all its aspects ."
With regard to this explanation by Respondent's representative to
the Fourth Committee, Applicants at 1, page 55, quote from a statement
made in response by the representative of China (Mr. Liu) who said,
inter alia,
"The resolution finally adopted by the League did not, it was
true, contain any specific provision for the transfer of supervisory
fonctions, but neither did ltforbid such transfer 2."
The relevance of the fact that transfer was not forbidden in an
enquiry whether in fact there was a transfer, is not understood. In any
event this statement by the representative of China in 1950 strikes a
significant contrast with his attitude in 1948 when he contended as
follows in the Fourth Committee:
"I t was true that, as no trusteeship agreement had been concluded
for South West Africa, the United Nations could not intervene or
exercise its power of supervision in regard to that Territory 3 ."
64. While itwas evident that the majority of Members of the United
Nations were prepared to accept the Advisory Opinion, there was a
difference of view in regard to the manner in which the Opinion was
to be implemented. Sorne Members favoured an immediate decision to
set up an ad hoc body to deal with annual reports and petitions, while
others felt that a hasty decision would prove ineffective, that the
Fourth Committee acting unilaterally had no right to set up and impose
sùpervisory machinery -and that Respondent's co-operation was essen
tial. This resulted in the eventual adoption of a compromise resolution
(449 A (V)) accepting the Court's Advisory Opinion and, inter alia,
establishing an Ad Hoc Committee, ·
(a) to confer with Respondent on the "procedural measures necessary
for the implementation of the Advisory Opinion"; and
(b) to examine reports and petitions \
65. Respondent could not support the adoption of this resolution,
and explained to the General Assembly that, in its view, the resolution,
inter alia, '
(a) took no account of the additional facts referred to in paragraph
63 above;
(b) established unilaterally, despite Respondent's protests, machinery
for the exatnination of reports and petitions;
1
Verbatim text. A. summary appears in G.A ., O.R., Fifth Sess,, Fourth Comm.,
192th Meeting, 4 Dec. 1950, para. 52, p. 364.'(Vide also paras, 41-51, pp. 362-364.)
3 Vide I, p. 432.
Annex A, Second Part, p. 282, infra."··. ,
• G.A. Resolution 449 A (V), 13 Dec. 1950, inG.A., O.R,, Fi/th Sess., SupNo, 20
(A/1775), pp. 55.56. COUNTER-MEMORIAL OF SOUTH AFRICA 75
(c) assigned these supervisory functions to the very body created for
the purpose of conferring with Respondent on the implementation
of the Court's Opinion; and
(d) restricted the terms of reference in a way which held out little
hope of fruitful discussions 1•
66. Although resolution 449 A (V) created machinery for negotia
tion, the General Assembly on the very same date adopted resolution
449 B (V), again urging Respondent to place South West Africa under
the United Nations trusteeship system.
The inconsistency of on the one hand offering "negotiations" with
a view to amicable settlement of a dispute, while on the other band
making what in effect amounted to an extreme demand relative to
that dispute, namely United Nations trusteeship for South West Africa,
was to become a regularly recurring feature in the history of this matter.
67. Applicants' statements that "The Union, however, made it clear
very early that it would not act in accordwith the Advisory Opinion ... " 2,
and "The Union's refection of the Court's rulings in its Advisory Opinion
was ·made mani/est /rom the outset 3," are incorrect, particularly in so
far as the context appears to suggest that such an attitude was dis
played in the 1950 debates of the General Assembly. Indeed, Respondent
made it clear at the outset that it would be able to define its position
with regard to the Court's Opinion only after careful consideration
had been given to the debates and to any resolutions which might be
adopted. (Vide para. 63 above.)
I95I
68. Respondent, despite its opposition to resolution 449 A (V) and
its expressed views regarding the profitability of the proffered negotia
tions, agreed to confer with the Ad Hoc Committee on South West
Africa in an effort to arrive at a definite settlement of the South West
Africa question 4.
69. In the course of the discussions which ensued, the South African
representative emphasized that the Court's Opinion was advisory and
thus not binding either upon the United Nations or upon Respondent.
He explained fully the reasons why Respondent could not accept the
Court's Opinion relating to accountability to the United Nations as a
supervisory authority in succession to the League. Nevertheless, his
Government realized that negotiation would be impossible if it were to
main tain its standpoint rigidly 5•
70. Respondent accordingly expressed its preparedness, in deference
to the wishes of the General Assembly, to negotiate a new international
instrument embodying those obligations of the Mandate which, in the
view of the Court, related directly to the "sacrcd trust" (Art. 2 to S
of the· Mandate), and, if considered necessary, also an obligation, simi
lar to that of Article 7 of the Mandate, to submit to the jurisdiction of
the International Court of Justice. Thereby the difference of view as to
1 G.A ., O.R., Fifth SessVol. I, 322nd Plenary Meeting, 13 Dec. 1950, p.629.
2 Vide I, p.55.
3 Ibid.,p.56.
5 Vide U.N. Doc. A/AC.49/SR.2, pp. 2-4.
Vide U.N. Docs. A/AC.49/SR.3 and 7. SOUTH WEST AFRICA
whether the Mandate had lapsed or not would be rendered a matter
of no further practical imp<>rtance.
The new international instrument would be concluded with the three
rcmaining Principal Allied and Associated Powers of the First World
War (France, the United Kingdom and the United States of America)
as principals and not as agents of the United Nations. These three
Powcrs were historicallv associated ,vith the Mandate, were Permanent
Members of the Security Council of the United Nations and had a re
cognized position in international affairs 1•
71. The Committee felt that Respondent's proposais "did not give
the United Nations a sufficient role" 2• The South African representa
tive accordingly indicated that, after further consideration, his Govern
ment was prepared to accept a compromise whereby the idea of a
fresh agreement with the three Powers should be sanctioned by the
United Nations prior to the negotiation of such an agreement.
This still did not satisfy the Committee, and after further considera
tion Respondent intimated its willingness to have the actual agreement
submitted to the United Nations for confirmation.
The South African representative further indicated that if the Com
mittee considered Respondent's proposai as falling outside its terms of
reference, he would be glad to submit to his Govemment any sugges
tion from the Committee indicating how the proposai could be brought
within the Committee's competence 3•
72. Despite the concessions offered by Respondent, the Committee
found the proposai unacceptable "because it did not allow for a full
implementation of the advisory opinion" and "could not therefore be
considered as within [its] terms of reference" 4.
The Committee in turn proposed a draft agreement embodying the
terms of the Mandate in a modified form, and providing, inter alia, for
new supervisory machinery under the United Nations 5•
73. Respondent's representative explained to the Committee the
reasons why Respondent could not accept the prindple of account
ability to the United Nations embodied in the Committee's proposai.
He emphasized that it would be virtually impossible to corne to any
arrangement involving such accountability without extending the obli
gations which Respondent had assumed under the r-.fandate. This was
evident from the broader membership, and the fundamentally different
structure, of the United Nations as compared with the League of
Nations. The most important difference in structure was that relating
to voting procedure, in that the League rule of unanimity did not apply
in the United Nations. This was of particular significance in view of
the basic ideological differences existing within the United Nations •
74. In a letter to the Ad Hoc Committee on 20 September 1951
Respondent reiterated the basic elements of the concessions which
1 U.N. Doc. A/rgor, in G.A ., O.R., Sixth Sess., Annexes (Agenda item 38), pp. 2-r r.
2 Ibid., para. 25 (d), p. 5.
3 Ibid., para. 25.
• Ibid., paras. 26 and 27, pp. 5-6.
' Ibid., para. 27, pp. 5-6.
6 U.N. Doc. A/AC.49/SR.1 r, p. 7. COUNTER-1'1EMORI.-\L OF SOUTH AFRICA
77
it was prepared to make in an effort to achieve a settlement which would
"satisfy the major desires" of the United Nations and of Respondent,
and expressed regret that the Committee had felt that the proposai
would not be acceptable to the General Assembly. On the other hand,
the Committee's proposai did not provide for certain requirements
considered by Respondent to be basically essential. If these were recog
nized, Respondent would not be unwilling to concede certain basic
requirements of the United Nations, such as the principle of inter
national accountability and provision for United Nations approval
for any change in the international status of the Territory.
Respondent also reiterated the difficulties experienced in thesubmis
sion of reports to the United Nations, and pointed out that, while it
was not prepared to submit reports, information on the Territory Crom
official sources was "always available" 1•
75. The Ad Hoc Committee, however, intimated that Respondent's
proposa! was "not within its terms of reference", and expressed its
willingness to continue negotiations on the b,isis of its own counter-pro
posal 2•
76. Respondent remained desirous to seek a mutually satisfactory
solution. Before negotiations could, however, be resumed, the Fourth
Committee on 16 November 1951, at the Sixth Session of the General
Assembly, granted oral hearings to petitioners on South West Africa 3•
This decision was taken despite Respondent's repeated intimations
that it did not accept accountability to the United Nations, and in
spite of the fact that implementation of the Court's Advisoryüpinion,
including the question of petitions, was a matter on which negotiations
were still in progress; this seriously hampered negotiations 4•
r952
77. The Sixth Session of the Gencral Assembly on 19 January 1952
adopted resolution 570 A (VI) reconstituting the Ad Hoc Committee
for the purpose of "conferring'' with South Africa "concerning means
of implementing the Advisory Opinion". At the same time, however,
and despite Respondent's protests, the Committee was authorized to
examine reports and petitions with regard to South West Africa.
The Assembly also reiterated its previous resolutions pressing for
South West Africa to be placed under United Nations Trusteeship 5•
78. Respondent had doubts as to the likelihood of fruitful results
flowing from furthcr negotiations with the Ad Hoc Committee. These
doubts were founded upon the following considerations, pointed out to
the United Nations on various occasions:
(a) The divergence in the views held by Respondent and the majority
in the United Nations. Respondent, white carrying out the spirit of
the "sacred trust" which it had assumed undcr the Mandate, did
1 U.N. Doc. A/1901, para. 32, pp. 7-8.
2
3 Ibid.,para. 33, p. S.
U.N. Doc. A/C.4/190, inG.A .O.R., Sixth Sess., Annex(Agenda item 38), p. 17.
• Vide G.A., 0.R., Sixlh Sess., Fourth Comm., 204th Meeting, 16 Xov. 1951,
pp. 17-19.
' G.A. Resolution570 B (VI), 19 Jan. 1952, G.A ., 0./l., Sixlh Sess., No. 20
(A/2119), p. 64. SOUTH WEST AFRICA
not recognize accountability to the United Nations in respect oi
its administration of South West Africa, whereas the majority in
the General Assembly held the view that Respondent was obliged
to account to the United Nations and in fact continued to press
for a trusteeship agreement for the Territory.
(b) The manner in which the South West Africa issue had been dealt
with in the United Nations, particularly the acrimony displayed by
some Members in the debates, marred objective consideration and
jeopardized negotiations.
(c) The restrictive nature of the Committee's terms of reference,
which left little hope for a compromise inasmuch as it required
Respondent to accept accountability (in accordance with the
majority opinion of 1950) as the only basis for negotiation.
Respondent was, however, desirous of arriving at an amicable
arrangement and was therefore prepared to explore ail avenues. On
being assured by the Ad Hoc Committee in 1952 that its "terms of
reference were such as to allow it to discuss any reasonable proposai",
negotiations were resumed in September 1952 1•
79. In the circumstances Respondent hoped that its proposai of 1951 2
would be reconsidered on its merits. In re-submitting that proposai the
South African representative contended that agreement had been
reached in principle with regard to the revival of the clauses of the
Mandate dealing with the "sacred trust". Moreover, Respondent had
agreed on the fundamental principles which the Committee regarded
as essential, the only exception being the handling of annual reports
and petitions. In this last respect his Government, depending on satis
factory progress of the negotiations, would be prepared to go somewhat
further; it would make available information on its administration to
those with whom a new instrument would be concluded.
While the new instrument would be negotiated with the three Principal
Allied and Associated Powers as principals, its general principles would
have to be approved by the United Nations, and if found acceptable, the
United Nations would ascertain whether the three Powers were prepared
3
to act as the second party . Before the new instrument could corne into
force the United Nat10ns would have to approve it, thus having a double
opportunity of examining the instrument •.
80. The Committee enquired whether Respondent would make avail
able annual reports as complete as those furnished to the League. The
South African representative replied that under its proposai, hls Govern
ment would supply annually to the three Powers information on South
West Africa as complete as that furnished to the League of Nations on
the basis of the Permanent Mandates Commission questionnaire.
Upon a further enquiry from the Committee, whether Respondent
would recognize the principle of international supervision under a pro-
1 U.N. Doc. A/226r, para. 7, iG.A ., O.R., Eighth Sess., Anne(Agenda item 36),
p. 2.
2 Vide para. 70 el seq., supra.
3 The representative of the United States of America-the only one of the three
Powers represented on the Ad Hoc Committee-had indicatedhis Governmcnt's
willingness in principle to actarnernber of the second party if the United Nations
agreed. Vide U.N. Doc. A/AC.49/SR.4, p. 3.
• Vide U.N. Doc. A/2261, paras. 11-13, pp. 2·3· COUNTER-MEMORIAL OF SOUTH AFRICA
79
cedure as nearly as possible analogous to that under the League, the
representative stated that Respondent's attitude would depend on the
progress of the negotiations on all the other points.
He therefore again pressed the Committee for its views on the merits
of Respondent's pro.l'osai, stating that to facilitate agreement, Respon
dent had made cons1derable concessions and had indicated1its readiness,
under certain conditions, to make further proposais •
Sr. While the Committee expressed its appreciation of the efforts
made by Respondent and noted that Respondent had extended its 1951
proposai, the Committee insisted on accountability to and supervision
by the Un2ted Nations because it felt that its terms of reference so
required •
82. Despite the fact that the negotiations were not conclusive, by
the end of 1952 the Committee was able to record that there was agree
ment in principle on the following points:
(a) That a new instrument, replacing the former Mandate for South
West Africa, should be concluded;
(b) That the new instrument should revive the "sacred trust" con
tained in Articles 2 to 5 of the Mandate, with minor modifications
which would not affect in any way the principle of the "sacred trust";
(c) That, under certain conditions, Respondent would make available
information on its administration of South West Africa; .
(d) That such information would be as full as that once supplied
under the mandates system; and
(e) That there should be some form of supervision of the administra
tion of South West Africa 3•
83. The points of difference, as also recorded by the Committee,
were to the following effect:
(a) How supervision of the administration of South West Africa
should be carried out:
The Committee insisted on United Nations supervision, "even
though it should not exceed that which applied under the mandates
system". On the other hand Respondent had corne to the conclusion
that any obligation which would carry with it supervision by the
United Nations, would be more onerous and would go beyond
the obligations undertaken under the mandates system.
(b) The second party to the proposed instrument:
Respondent could not contemplate concluding an agreement directly
with the United Nations, although the agreement which it was
prepared to negotiate and conclude, would have to be approved by
the United Nations. On the other hand the Committee considered that
the agreement should be concluded with the United Nations or with
an agency appointed by it '·
84. From the above it is clear that, far !rom Respondent frustrating
the Ad Hoc Committee's efforts at negotiation-as is allcgcd at 1, page
58-the substantial measure of agreement which had by the end of
1952 actually been reached between Respondent and the Committee
1 U.N. Doc. A/2261, paras. 15 and 16, pp. 3-4.
2 Ibid., para. 20, p. 4.
3 Ibid., para. 23, p. 5.
4 U.N. Doc. A/2261, para.24, p.5.80 SOUTH WEST AFRICA
was due to the fact that Respondent was prepared to make proposals
and concessions in regard thereto. Whatever frustration there was,
resulted, in fact, from the Committee's restrictive terms of reference.
I953
85. The inconclusive negotiations of I952 were resumed in June
I953 when the South African representative again requested that the
Committee, as a whole, state its viewswithregard totheessentialelements
of Respondent's proposal.
The Committee intimated, that inasmuch as Respondent wished the
three Powers to act as principals and not as agents of the United
Nations, the proposa! did not provide means for implementing the
Advisory Opinion, and that the Committee was therefore unable to
accept the proposal as a basis for detailed discussion.
86. The South African representative referred again to Respondent's
view that it would be well-nigh impossible to devise any arrangement
whereby Respondent would be accountable to the United Nations for
its administration of South West Africa without extending the degree
of supervision and, therefore, Respondent's obligations. And he en
quired how the Committee proposed to cope with the difficulties in this
regard, especially the absence of the unanimity rule in the United
Nations voting procedure.
The Committee was, however, not prepared to enter into that enquiry
until Respondent had accepted the principle of United Nations super
vision. This Respondent could not do without the assurance that its
obligations would not be extended. Respondent reiterated its ,villing
ness to consider proposals which would not involve such extension.
The Committee, however, did not attempt to show how United Nations
superv1sion could be devised without extending Respondent's obliga
tions •
The negotiations consequently did not lead to positive results.
87. At its Eighth Session the General Assembly, on 28 November
I953, rejected Respondent's proposal to the Ad Hoc Committee and
established the Committee on South West Africa ,vith functions as
set out in resolution 749 A (VIII) 2•
These functions in essence amounted to-
(a) exercising supervision over the administration of the Territory, and,
(b) negotiating with Respondent for the full implementation of the
Advisory Opinion. .
The South African representative explained to the Fourth Committee
that Respondent could not support this resolution, as it required Respon
dent to submit to United Nations supervision as a basis for co-opera
tion with the Committee, left the Committee no scope for negotiation
beyond that basis, and combined a supervisory function with that
of so-called "negotiations" 3 •
1
U.N. Doc. A/2475, paras. 8-15, iG.A., O.R., Eighih Sess., Annexes(Agenda
it2m 36), pp. 33-34.
G.A. Resolutio1749 A (VIII). 28 Nov. 1953, in G.A ., O.R., Eighth Sess., Sup.
No. 17{A/2630), pp. 26-27. (Vide also 1, pp. 59-61.)
J G.A ., O.R., Eighth Sess., Fourth Comm363rd Meeting,12 Nov. 1953, para. 32,
p. 306. COUNTER-MEMORIAL OF SOUTH AFRICA Sr
In the circumstances, those who supported the adoption of resolu
tion 749 A (VIII) were aware that no co-operation with such a com
mittee could be expected !rom Respondent; and they must, therefore,
have realized that the Committee's supervision would be one-sided and
thus defective.
88. Furthermore, the proffered "negotiations" were again coupled
with a resolution urging the conclusion of a United Nations trusteeship
1
agreement .
I954
89. When the Committee on South West Africa invited Respondent
to confer with il, Respondent replied that it was-
"doubtful whether there is any hope that new negotiations within
the scope of your Committee's terms of referenCe will lead to any
positive results".
This reply was communicated to 'the Chairman of the Committee
in a letter dated 25 March 1954, wherein Respondent's reasons for its
view were set forth in full 2.The letter is quoted al I, pages 62 to 64.
The Committee confirmed Respondent's doubts by replying that il
could not "enter into discussion of proposais whi3h are not designed
to implement fully the Advisory Opinion" •
Inasmuch as this reply signified that negotiations could only take
place on the basis of acceptance by Respondent of United Nations
supervision, Rcspondent had no alternative but to decline the Com
mittee's invitation.
go. As regards the supervisory functions contemplated for the Com
mittee on South West Africa, resolution 749 A (VIII) directed that the
practices and procedures which had applied to supervision of Mandates
by the organs of the League of Nations should be observed as far as
possible 4•
lt was, however, inevitable that supervision in pursuancc of the said
resolution would differ substantially !rom that which had applied under
the League of Nations, particularly in the following respects:
(a) Unlike the Permanent Mandates Commission, which was "a com
mission of experts ... of high standing and independent of Govem
ments" 5,the Committee on South West Africa was composed of
political representatives of member States, the selection of.individ
uals being Jeft to the discretion of the States clected to serve on
the Committee. The Members of the Committee, in exercising their
supervisory functions, thus did not stand apart !rom the political
views of their governments. .
(b) In the League the ultimate supervisory body was the Council,
the voting procedure of which was subject to the unanimity rule.
The corresponding supervisory organ in the United Nations, as
1G.A. Resolution 749 B (VIII), 28 Nov. 1953, in U.N. Doc. A/2630, pp 27-28,
2 G.A., O.R., l\Tinth Sess., SupNo. 14 (A{'2666), Annex I (c),pp. 6-8.
3
Ibid.,Annex I (d),pp. 7-8.
• Vide sub-paras. (a),(b),(c) and (d) of para.I 2 oG.A. Resolution 749 A (VIII).
' Voting Procedure on Questions relating to Reports and Petitions concerning the
Territory of South West Afrika, Advisory Opinion, I.C.J. Reports r955, p. 95. Vide
also para.20, supra.82 SOUTH WEST AFRICA
contemplated by resolution 749 A (VIII), was the General Assembly,
in the voting procedure of which the unanimity rule did not apply
Article 18 of the Charter providing only for decisions by a majority,
or in the case of certain matters, by a two-thirds majority.
The combined effect of the differences mentioned in (a) and (b)
above would inevitably render supervision in pursuancc of resolution
749 A (VIII) more onerous for Respondent than that which had applied
under the League.
gr. When the Committee on South West Africa requested Respon
1
dent to submit reports ,tllis request was declined 2or reasons fully
stated in Respondent's letter of 25 March 1954 , which is quoted at
I, pages 62 to 64. Respondent's position in this regard was further
explained to the General Assembly at its Nïnth Session, where the
South African representative pointed out that the Committee had been
established despite Respondent's objections and that Respondent was
then invited to co-operate on a basis unilaterally determined by a
majority in the General Assembly. His Government could obviously
not accept an arrangement which had been decided on against its wishes
and which failed to take into account its essential requirements. It was,
therefore, unable to recognize the Committee or the legitimacy of the
report which the Committee had drawn up 3•
With regard tb petitions, Respondent's attitude was also clearly
stated in the letter of 25 March 1954; and, in fact, Respondent declined
to participate in any United Nations proceedings concerning petitions.
92. In the absence of reports from Respondent, the Committee com
piled its own report, relying on information from varions official and
unofficial sources. This report contained many inaccuracies and omis
sions of a serious nature, as well as erroneous conclusions.
The allegations contained in the extracts !rom the report, quoted
in Applicants' Memorials '. will not be dealt with here 5•
Respondent did reply, in the Fourth Committee, to certain allega
tions in order to indicate that some of the information on which the
report was based was unreliable and that the report reflected serions
misconceptions as to conditions in South West Africa 6.
93. In 1954 the General Assembly once more adopted a resolution
urging Respondent to place South West Africa under United Nations
Trusteeship 7•
94- The statement in the Memorials 8alleged to have been made by
Dr. Malan (then South African Prime Minister) on 24 Augnst 1954
was in fact issued by a political party in South West Africa-the
National Party for South West Africa. It was not made by the Prime
Minister, although, as National Leader of the said party, he had ap-
1
2 Vide U.N. Doc. Af2666, Annex I (a), p. 6.
3 Ibid., Annex I (c), pp. 6-7.
G.A., O.R., Ninth Sess., Fourth Comm., 407th Meeting, 15 Oct. 1954, para. 36,
p. 66.
-4I, pp. 64-65.
5 Vtâe para. r, supra. .
6 Vide e.g.,G.A., O.R., Ninth Sess., Fourth Comm.,,407th Meeting, pp. 67-70.
7 G.A. Resolution 852 (IX), 23 Nov. 1954, in G.A., O.R., Ninth Sess., Sup.No. 21
(A/2890), p. 29.
8 Quoted at I, p. 66. COUNTER-MEMORIAL OF SOUTH AFRICA 83
proved thereof. The statement answered a daim of an opposition party
to the effect that the Territory had acquired a status independent of
South Africa.
95. The General Assembly in 1954 also adopted resolution 904 (IX),
in which it asked the International Court of Justice for an advisory
opinion as to whether Special Rule F was a correct interpretation of
the Court's 1950 Advisory Opinion 1. This rule concerned voting proce
dure in the General Assembly on questions rclating to reports and
petitions regarding South West Africa. Respondent did not support
this request for an advisory opinion for the reason that it had not
accepted the 1950 Opinion, especially with regard to supervisory fonc
tions on the part of the United Nations. As Respondent had throughout
denied that the General Assembly had any supervisory powers or fonc
tions in respect of the administration of South West Africa, Respon
clent was not concerned with the voting procedure adopted by the General
Assembly in the exercise of the supervisory powers it had assumcd in
respect of the Territory and, consequently, Respondent did not partici
pate in the proceedings before the Court in 1955 2.
As the correctness or otherwise of the 1955 Advisory Opinion does
not arise for decision in the present proceedings, Respondent refrains
from commenting on the reasoning of the Court or its conclusions in
that Opinion.
I955
96. In 1955 the Committee on South West Africa agam invited
Respondent-
(a) to confer with it on the implementation of the Court's 1950 Opinion;
and
(b) to assist the Committee in its supervisory task; in particular to
send a report 3•
In response, Respondent referred to its Ietter of 25 March 1954 and 4
stated that as there had been no material change in the position out
lined therein, Respondent could not see that negotiations on the basis
of the Committee's restrictive terms of reference would lead to positive
results 5.
The Committee, in its reply of IO June 1955, stated that it could
only conclude that Respondent "is unwilling even to enter into negotia
tions in order to implement fully the Advisory Opinion 6".
While this was a correct conclusion, so far as it went, Respondent
was not unwilling to negotiate with the United Nations on a basis
which did not as a prerequisite place impossible demands on Respon
dent-an attitude fully explained to the Fourth Committee by Respon
dent on 31 October 1955 7•
1 G.A. Resolution 904 (IX), 23 :Nov. r954, in U.N. Doc. A/2890, pp. 55-56.
2 Vide G.A ., O.R., Tenth Sess., Fourth Comm., 491st Meeting, 31 Oct. 1955, para. 9,
p. 130.
3
G.A., O.R., Tenth Sess., Sup. No. rz (A/2913), Annex I (a), p. 6.
• Vide para. 89, supra.
' U.N. Doc. A/2913, Anncx I (c), p. 7.
6 Ibid., Annex I (d), p. 7.
7 Vide G.A ., O.R., Tenth Sess., Fourth Gamm., 491st l\i[eeting, pp. 134-136. SOUTH WEST AFRICA
97. The 1955 report of the Committee {referred to at 1, page 69),
suffered from the same defects and short-comings· as that of 1954. The
South African representative, however, did not-
"attempt to explain where the Committee had erred in its con
clusions, since the experience of the previous year had shown that
to do so would produce no fruitful result. Nor would he comment
on the inaccuracies and even untruths contained in the petitions
considered by the South West Africa Committee. [The previous
year,] without prejudice to his Govemment's standpoint on petitions,
he had endeavoured to arouse the Fourth Committee to the serions
implications involved in the adoption of the resolutions on petitions
suggested by the South West Africa Committee. His statement,
however, had not been discussed at ail; the draft resolutions had
simply been voted on without any examination of their contents
and referred to the General Assembly 1."
The allegations contained in the extract from the report, quoted at
I, page 69, are not dealt with here 2•
98. In regard to the admission of oral hearings to petitioners on
South West Africa, Respondent's views were stated as follows:
"In the first place, the Union of South Africa did not recognize
the competence of the United Nations to consider petitions, whether
written or oral. In the second place, the system established by the
Charter made no provision for oral petitions except in the case of
Trust Territories. Lastly, there had undoubtedly been no provision
for hearings in the procedure applied by the League of Nations,
and the Permanent Mandates Commission in particular had not
granted any hearings properly so-called 3."
Therewas,in the initial stages of the discussions at the Ninth Session
of the General Assernbly, a fairly general view in the Fourth Cornmittee
that to grant oral hearings to petitioners would not be in accordance
with the procedure of the former mandate system and therefore not
admissible in the Committee on South West Africa.
A draft resolution to this effect was, however, withdrawn and, in
stead, the Court was requested for an advisory opinion as to whether
it would be consistent with the Court's 1950 Opinion for the Committee
on South West Africa to grant oral hearings to petitioners 4.
In view of Respondent's attitude regarding the 1950 AdvisoryOpinion,
and as to accountability to the United Nations, Respondent did not
support the request for an advisory opinion on the admissibility of
oral hearings, inasmuch as the request was confined to an interpretation
of the 1950 Opinion.
99. During the Tenth Session of the General Assembly, a further
resolution was adopted urging Respondent to place South West Africa
under United Nations Trusteeship 5•
· 1 G.A ., O.R., Tenth Sess., op. cipara. 48, p. 135.
2 Vide para. r, supra.
3 G.A .. O.R., Tenth Sess., Fourth Comm.,500th Meeting, 8 Nov. r955, para. 42,
p. 182.
4 G.A. Resolution 942 (X), 3 Dec. r955, in G.A .,O.R., Tenth Sess., Sup.No. 19
{A/3II6), p. 24.
' G.A. Resolution 940 (X),::; Df'c. 1955, U.N. Dor.. A/3rr6, p. 23. COUNTER-MEMORIAL OF SOUTH AFRICA 85
r956
IOO. In reply to a further invitation to Respondent by the Com
mittee on South West Africa, to negotiate and to submit reports,
Respondent again re!erred to its earlier replies in 1954.and 1955 (vide
paras. 89 and 96, supra) and stated, inter alia, "as there has in the
meantime been no material change in the position outlined in my
previous communications the attitude of the Union Government remains
unchanged" 1•
IOI. Applicants quote extensively, at I, pages 60-61, from the report
of the Committce on South West Africa for the year 1956. While
denying that it failed in any way to observe the spirit of the Mandate,
Respondent will not deal here with the allegations contained in the
report 2.The same applies to the extracts from petitions contained in
Chapter VI of the Memorials and referred to at the top of I, page 73
thereof. ·
I02. For a proper understanding of the extract from the statement
of the South African Prime Minister which is quoted at I, page 72, it
should be read in the fuller context given hereafter, namely:
"The hon. Senator Cowley suggested that in order to avoid
troubles in future in so far as South West Africa is concerned, we
should forthwith proceed to annex South West Africa ...
May I say to him that the attitude of our Government and of
the previous government, the Smuts Government, was that as a
result of the disappearance of the old League of Nations both the
Smuts Govcrnment and the present Government have taken up
the attitude that there is no other body that has anything to say
in so far as South West Africa is concerned except South Africa
itsel! and that therefore it is well within our power and fully within
our power to incorporate South West Africa as part of the Union.
Up to now we have declared unto the world that legally and other
wise that is the position, but that in the meantime we are prepared,
although we do not for one moment recognize the rights of the
United Nations Organization, even should we one day incorporate
South West Africa, to govem South West Africa in the spirit of the
old mandate. So, whether we will proceed at a later stage to carry
out and put into effect what we regard as our rights over which
nobody has anything to say, that will depend on how circumstances
develop in the future 3."
This malter is again raised at 1, page 186, and is dealt with fully
elsewhere in the Counter-Memorial.
IOJ. With regard to the extracts from the 1956 Advisory Opinion,
which are quoted at I, page 72, Respondent refers to paragraph 98
above and will not deal with the reasons advanced by the Court for
its conclusion.
r957
rn4. At the rrth Session of the General Assembly an attempt was
made by some delegations in the Fourth Committee to find a new basis
1 G.A., O.R., EleventhSess., SuNo. 12 (A/3151), Annex I (b)p.4.
2 Vide para. 1,supra.
3 U. of S.A., Parl. Deb., SenaVol. III (1956), Cols. 3631-3632,86 SOUTH WEST AFRICA
for negotiations; but as this att~mpt did not result in a concrete pro
posa!, resolution 1059 (XI} was adopted, requesting the Secretary
General "to explore ways and means of solving satisfactorily the ques
tion of South West Africa" 1•
At the same time, the Liberian representative introduced the usual
resolution urging the placing of South West Africa under United Nations
trusteeship-eventually adopted by the General Assembly as resolution
1055 (XI) 2•
105. Also at that session a further step was taken in an attempt to
compel Respondent to submit to the wishes of the majority in the
Assembly, namely the adoption of resolution 1060 (XI) in terms whereof
the Committee on South West Africa was requested to study the following
question:
"What legal action is open to the organs of the United Nations,
or to the Members of the United Nations, or to the former Members
of the League of Nations, acting either individually or jointly, to
ensure that the Union of South Africa fulfils the obligations assumed
by it under the Mandate, pending the placing of the Territory of
South West Africa under the International Trusteesh.ip System? 3"
In Respondent's view this task could hardly be consonant with the
fonctions of negotiation and supervision already entrusted to the Com
mittee.
106. At the 12th Session of the General Assembly, in October 1957,
a number of delegations appealed for a new approach on the South
West Africa question aimed at the resumption of negotiations between
South Africa and the United Nations. This culminated in the estab
lishment of the Good Offices Committee (United States, United King
dom and Brazil) to "discuss with the Government of the Union of
South Africa a basis for an agreement which would continue to accord
to the Territory of South West Africa an international status" (resolu
tion n43 (XII}) \
107. The wider terms of reference of this Committee extended the
possibility of fruitful negotiations. The prospective negotiations were,
however, greatly jeopardized by the concurrent adoption of other reso
lutions sponsored, inter ali'a,by the Applicants. These included a further
resolution calling for United Nations trusteeship for South Y1est Africa 5,
and a resolution calling for further study of legal action on the South
West Africa question 6•
The inherent conflict between the act of "good offices" and the adop
tion of these and other resolutions were pointed out by a number of
delegat.ions, but attempts to suspend action on them failed.
The attitude of Liberia is illustrated by the fact that, although sup
porting the establishment of the Good Offices Committee, the Liberian
1 G.A. Resolution 1059 (XI), 26 Feb. 1957, in G.A ., O.R., Eleventh Sess., Sup.
No. 17 (A/3572), p. 30.
2 Of 26 Feb. 19:57, in U.N. Dnc. A/3_572,pp. 28-29.
3 G.A. Resolution 1060 (XI), para. r, 26 Feb. 1957, in U.N. Doc. A/3572, p. 30.
+ G.A. Rese>lution 1143 (XII), 25 Oct. 1957, in G.A ., O.R., Twetfih Sess., Sup.
No. rS (A/3805), pp. 25-26.
5G.A. Resol"tian r 141 (XII),25 Oct. 1957, in U.N. Doc. A/3805, pp. ~4-25
6C.A. Resolution 1142 (XTI), 25 Oct. 1957, in U.N. Doc. A/3805, p. 25. COUNTER-MEMORIAL OF SOUTH AFRICA
representative nevertheless "urged the members of the Committee to
consider the possibility of compulsory jurisdiction of the Court" 1•
The Ethiopian representative sponsored the resolution on legal action
and did not support the resolution establishing the Good Offices Com
mittee.
rn8. Respondent nevertheless, in pursuance of its desire to arrive at
an amicable arrangement, accepted the invitation of the Good Offices
Committee to participate in discussions with it. The negotiations with
the Good Offices Committee took place in I958 and will be dealt with
below under that year.
Io9. Regarding the contents of the report of the Committee on
South West Africa, referred to at I, pages 73 and 74, and the statement
of the representative of Liberia quoted at page 75, Respondent, while
denying any violation on its part of the spirit of the Mandate, will for
the reasons previously stated not here deal with the factual questions
involved therein 2•
I958
no. In March I958, the Good Offices Committee invited Respon
dent to enter into discussions with it in terms of resolution n43 (XII).
Respondent indicated that, while it could not reconcile the I957 resolu
3
tions relating to legal action and urging a trusteeship agreement with
the act of "good offices", it was nevertheless impressed by the presence
of a more conciliatory spirit, and invited the Good Offices Committee
to corne to South Africa for discussions. This the Committee did, and
at the conclusion of the discussions in South Africa, the Members of
the Committee were invited by Respondent to visit South West Africa
in their private capacities-which two of the Members did. In the re
cord of the discussions the Good Offices Committee paid tribute to the
"spirit of frankness, friendliness and desire to find a mutually acceptable
basis for agreement which animated the [South African] Government's
participation in the discussions" 4.
III. In the discussions Respondent expressed its preparedness to
enter into an agreement concerning South West Africa which would
specify that the Territory possessed an "international character", and
that this character could be modified only with the consent of both
parties to the agreement-the agreement to contain provisions along
the lines of Articles 2 to 5 of the Mandate, as well as the obligatioIJ.
to provide information on the administration of the Territory.
Respondent was, however, for the reasons already stated, not pre
pared to accept the United Nations as the second party to such an
agreement. The Good Offices Committee, on the other hand, felt itself
precluded from considering any party other than the United Nations as
the second party to an agreement 5.
1
G.A., 0.R., Twelftk Sess., Fourtk Comm., 659th Meeting, 2 Oct. 19,7, para. 14,
p. 3~ .
2 Vide para. I, suPra.
3 G.A. Resolulions n41 (XII) and 1142 (XII).
4 U.N. Doc. A/3900, in C.A., O.R., Thirteentk Sess., Annexes(Agenda item 39),
para. 10,p. 3.
• U.N. Doc. A/3900.88 SOUTH WEST AFRICA
II2. After discussing other possibilities the Good Offices Committee
mentioned, inter alia, "a suggestion that the partitioning of the Terri tory
1
might provide the basis for a solution" . Respondent intimated that it
would be prepared to investigate the practicability of partitioning as en
visaged and, if found feasible, Respondent wotùd submit proposais to
the United Nations.
ln its· report to the General Assembly, the Good Offices Cominittee
expressed: ·
"the opinion that some form of partition under which a part of the
Territory would be placed under a trusteeship agreement with the
United Nations and the remainder would be annexed to the Union,
inight provide a basis for an agreement";
and
"the hope that the General Assembly will therefore encourage the
Government of the Union of South Africa to carry out an investiga
tion of the practicability of partition, on the understanding that
if the investigation proves this approach to be practicable it will
be prepared to submit to the United Nations proposais for the
partitioning of the Territory" 2•
Respondent stressed, to the Good Offices Committee and the General
Assembly at its 13th Session, that the envisaged investigation would
have to be directed, inter alia, at ascertaining the view of all the inhab
itants 3•And Respondent explained that its willingness to contemplate,
in this context, the United Nations as .the second party to an agree
ment was due to Respondent's desire to find a compromise, and the fact
that it was inherent in the suggestion that the area which would be
placed under United Nations Trusteeship, would probably contain
Bantu peoples only, thus eliminating the major difficulties which had
prevented Respondent in the past from accepting United Nations
accountability 4.
n3. When the report of the Good Offices Committee came before
the Fourth Committee at the 13th Session of the General Assembly,
Respondent appealed for discussion thereof separately from the other
aspects such as suggested legal action and the report of the Committee
on South West Africa, so as to avoid acrimonious debate which would
not be conducive to constructive negotiation. The majority in the Fourth
Committee, inèluding bath Applicants, however opposed a separate dis
cussion, and moreover acceded to a request from petitioners for oral
hearihgs specifically on the subject. of the negotiations, despite the
protests of Respondent and others.
It was in such circumstances that the South African representative
stated:
"Even before the vote it had been apparent from the procedural
debate that a number of delegations had corne to the Assembly
determined to wreck the work of the Good OfficesCommittee. That
course of events confirmed his Government's contention that the
1 U.N. Doc. A/3900, para. 47, p. 8.
1 Ihid., para. 52 (6) and (7), lO.
3G.A., 0.R., Thirteenth Sess., Fourth Comm., 745th Meeting, 29 Sep. I958, para5.
20-23, p. r5.
~ U.N. Doc. A:woo, para.50, p.8. COUNTER-MEMORIAL OF SOUTH AFRICA 89
forum of the United Nations was being used for the purpose of
waging propaganda and ideological warfare against a member
State. The Union Govemment had not expected those develop
ments when it had %'Teedto enter into discussions with the Good
Offices Committee; on the contrary it had expected that its pro
posals would be considered seriously and without prejudice .''
n4. A resolution was adopted (resolution I243 (XIII)) rejecting the
Good Offices Committee's suggestion that the partition idea be in
vestigated and requesting it to renew discussions with Respondent to
find a basis for an agreement which would continue to accord to "South
West Africa as a whole an international status and which would be in
conformity with the purposes and principles of the United Nations",
bearing "in mind the discussions at the IJth Session of the General
Assembly" 2•(Italics added.)
n5. Again respondent refrains from dealing here with the extracts
from the report of the .Committee on South West Africa referred to at
I, pages 65 and 66 3.
n6. At the same Session, the General Assembly adopted a resolu
tion, which had by now become standard, calling for South West Africa
to be placed under United Nations Trusteeship 4.
I959
n7. In its reply to an invitation by the Good Offices Committee to
renew discussions, Respondent referred to the unfortunate develop
ments at the 13th Sessionof the General Assembly which, in Respondent's
view, showed that the essential elements of conciliat_ion and goodwill
on the part of the majority of Members in the General Assembly were
absent. Respondent was nevertheless still prepared to act in accordance
with the spirit which animated the resolution establishing the Good
Offices Committee, and to collaborate with the Committee on the basis
of the terms of reference contained in that resolution. It was difficult to
see, however, what useful purpose could be served by renewing, under
the Committee's new and more restricted terms of reference, the dis
cussions which had been initiated in the previous year in such com
5
pletely different circumstances •
When, however, the Good Offices Committee 6replied that its terms
of reference were "not essentially different from those under the 1957
resolution"7, Rcspondent indicated that, while it did not agree with this
interpretation, it would meet with the Committee 8•
n8. The ensuing discussions showed, however, that the Good Offices
Committee felt itself bound to consider only proposais which would
1
G.A., 0.R., Thirtunth Se~s., Fourlh Comm., 747th Meeting, 30 Sep, 1958, para.
27, p. 25.
2 C.A. Resolution 1243 (XIII), 30 Oct. 1958, in C.A., 0.R., Thirleenth Sess., Sup.
Nu. 18 (A/4090), p. jo.
3 Vide para. r,supra.
4 G.A. Resolulion 1246 (XIII),30 Oct. 1958, in·u.N. Doc. A/4ogo, p. 31.
5 Vide U.N. Doc. A/4224, Annex II,in C.A., O.H., Fourteenth Srsç., Annexes
(Agenda item 38), pp. 4-5.
6 In itslett,:,r of 19 Jun!' 1959.
7 U.,V. D,,c.A/4224, Annex III, p. 5.
• ibid.,Annex IV, p. 5.go SOUTH WEST AFRICA
involve acceptance by Respondent of accountability to the United
Nations in respect of the Territory as a whole, and it proposed a for
mula in the following terms:
"lt is agreed that further talks might be concentrated on the
negotiation of some form of agreement to which the United Nations
must be a party for the supervision of the administration of South
West Africa in a manner which would not impose greater responsi
bilities on the Union Government or impair the rights enjoyed
by it under the Mandate 1."
Respondent could not accept this formula because of its conviction
that it would be impossible to devise, within the framework of account
ability to the United Nations, a procedure which would not impose on·
Respondent obligations greater than those which had existed under the
League.
In an effort to meet the view of the Good OfficesCommittee, Respond
ent in turn proposed the following formula as a basis for further dis
cussion:
"It is agreed that further talks with the Union Government
should be concentrated on negotiation with the United Nations,
through its Good Offices Committee, of some form of settlement
regarding South West Africa, which would not impose greater
(or more onerous) responsibilities on the Union Government or
impair any of the rights conferred upon it by the Mandate in 1920,
it being understood that such discussions will be without prejudice
to the juridical position taken up by the Union in the pas! 2."
The Good Offices Committee felt that this proposai did not improve
the position, and reported to the General Assembly that "it has not
succeeded in finding a basls for an agreement 11nderils terms of refer
ence" 3• (Italics added.)
Thus negotiations were once more frustrated by the restrictive terms
of reference of the negotiating agency.
rrg. When the report of the Good Offices Committee 4was discussed
at the 14th Session of the General Assembly, the South African repre:
sentative expressed his Government's "real regret" that it had not been
possible to find a basis for agreement, and informed the Fourth Com
mittee that:
(a) The South African delegation would at the next session, as
it had done at the 14th Session, again participate in the discussion
of the report of the Committee on South West Africa.
(b) The South African Government would make available to the
United Nations blue books (official reports) and other reports issued
by the South West Africa Administration, Hansards (Parliamentary
Proceèdings) of both the South African Parliament and the Legis
lative Assembly of South \Vest Africa; and other documents con
cerning the administration of the Territory which are required to
be laid before the South African Parliament and the Legislative
Assembly.
1 U.N. Doc. A/4224, Annex IV, para. 10,p. 3.
2 Ibid.Annex III, para. 14,p. 3.
3 fbid.para. 16, p.4.
4 U.N. Doc. A/4224. COUNTER-MEMORIAL OF SOUTH AFRICA gr
(c) The South African Government remained ready to enter into
discussions with an appropriate United Nations ad hoc body that
might be appointed after prior consultation with the South African
Government and which would have a full opportunity to approach
its task constructively, providing for fullest discussion of all possi·
bilities1.
In giving these undertakings the South African representative empha
sized that Respondent could only carry them out within a framework
of co-operation and he cxpressed the hope that further developments
would not force Respondent to re-assess its attitude 1•
120. The atmosphere was unfortunately marred by subsequent devel
opments including the following:
(a) Resolution 1360 (XIV) 2 (sponsored, inter alia, by Ethiopia) was
adopted which, although apparently designed to create machinery
for negotiation, contained paragraphs condemnatory of Respondent.
On the "negotiation" aspect Respondent was invited to-
"... enter into negotiations with the United Nations through the
Committee on South West Africa, which is authorized under its
terms of reference to continue negotiations with the Union, or
through any other committee which the General Assembly may
appoint, with a view to placing the Mandated Territory under the
International Trusteeship System";
and requested to-
"... formulate for the consideration of the General Assembly, at its
fifteenth session, proposais which will enable the l\fandated Territory
of South West Africa to be administered in accordance with the
principles and purposes of the Mandate, the supervisory functions
being exercised by the United Nations according to the terms and
intent of the Charter 3".
The South African representative pointed out to the Committee
that Respondent could hardly be expected to enter into negotiations
when the resolution also contained paragraphs censuring the South
African Government. Furthermore the terms of reference laid down
for the ncgotiations implied only trusteeship. He continued,
"... the Committee was well aware of the Union's attitude towards
a possible trusteeship agreement; even the Court's opinion, adopted
by the General Assembly, indicated that the Union was not obliged
to enter into a trusteeship agreement. There was therefore, no
question of the Union considering a trusteeship agreement. As
operative paragraph 3 envisaged supervision according to the terms
and principles of the Charter, it also aimed at supervision by the
Trusteeship Council. Moreovcr, the terms of reference of the United
Nations body which was to be entrusted with those negotiations
1 G.A ., O.R., Four/eenlh Sess.,FfJurth Comm., 924th ::\leeting26 Oct. 1959,
para. 2,p. 22r.
2 G.A. Resolution 1360 (XIV), 17 Nov. 1959, in G.A., 0.R .• Fourteenlh Sess., S11p,
Xo. 16 (A/4354), pp. 28-29.
3 Ibid., paras2 and 3, p. 29. SOUTH WEST AFRICA
92
seemed much too restrictive, more restrictive in tact than the
present terms of reference of the Good OfficesCommit tee. The South
African delegation would1therefore . . . vote against the draft
resolution as a whole ,"
(b} Together with others, both Applicants also sponsored a resolution
designed to encourage Member States to institute legal action
against Respondent. This resolution, inter alia, drew-
"... the attention of Member States to the conclusions of the special
report of the Committee on South West Africa covering the legal
action open to Member States to refer any dispute with the Union
of South Africa concerning the interpretation or application of the
Mandate for South West Africa to the International Court of
Justice for adjudication in accordance with Article 7 of the Mandate
read in conjunction with Article 37 of the Statute of the Court 2 ".
The South African delegation had pointed out in vain that this resolu
tion was not consonant with a conciliatory spirit necessary for success
ful negotiation 3 •Other delegations also feared that this resolution would
have a deleterious effect and a formal proposal was made to postpone
consideration thereof until the 15th Session; but alter an appeal to the
sponsors by the representative of Liberia, the proposa! to postpone
consideration was withdrawn 4•
121. The General Assembly also adopted the annual resolution
(sponsorcd, inter alia, by Liberia) cal5ing for the Territory to be placed
nnder United Nations trusteeship •Of particular significance in this
respect is the attitude adopted by the representative of Ethiopia.
Speaking as a Member of the Committee on South West Africa in the
Fourth Committee on 19 October 1959, he said, inter alia:
"... The General Assembly had been entirely right to oppose, at
its thirteenth session, both the Territory's partition and any
solution which offered less than the full trusteeship regime as it
was applied in all the other Territories administered by Member
States of the United Nations."
And later:
"... the Ethi~pian delegation was obliged to state that the only
legally acceptable status for the Territory would be trusteeship
status. Nothing less would be in accordance with the Charter and
the advisory opinion of the International Court of Justice 6".
122. With regard to the extracts !rom the report of the Comnùttee
on South West Africa referred to at I, page 79, it is desired merely to
record here that, without prejudice to its juridical position, Respondent
d1d at the 14th Session of the General Assembly deal with certain
allegations and information contained in the report. This was done to
draw attention to the misstatements and the unjustified conclusions
in the report, as well as to show that Respondent's refusa! to supply
1 G.A ., O.H., Fourleenth Sess., Fourth Comm., 931st Meeting, 29 Oct. 1959, para.
48, p. 254.
2 C.A. Resolution 1361 (XIV), 17 Nov. 1959, in U.N. Doc. A/4354, p. 29.
3 C.A., 0.R., Fourteenlh Sess., Fourth Comm., 931st Meeting, para. 50, p. 254.
-4ibid., 932nd Meeting, 30 Oct. 1959, para. I, p. 259.
' C.A. Resriiulion 1359 (XIV), 17 Nov. 1959, in U.N. Doc. A/4354, p. 28.
6 G.A ., O.R., Fourle('.nlh Sess., Fourth Comm., 914th Meeting, 19 Oct. 1959, p. 164. COUNTER-MEMORIAL OF SOUTH AFRICA
93
information was due to its inability to accept United Nations account
ability and not to a desire to hide the facts 1•
The Applicants allege at 1,page Sr, that the South African represent
ative "made no real attempt to deal with the practice of apartheid.
Nor did the Union dispute the existence of an interlocking series of
legislation which the Committee deemed oppressive". Respondent did
not intend or attempt to deal fully with the various allegations and
conclusions in the report of the Committee on South West Africa,
inasmuch as Respondent did not recognize supervisory authority as
vested in the United Nations, and was not accounting to the United
Nations in that sense.
Respondent will not deal here with the allegations in the said report'·
I960
123. When the Committee on South West Africa invited Respo3dent
to negotiate with it in tcrms of resolution 1360 (XIV) Respondent on
29 July 1960, replied:
"The Union Governmcnt have repeatedly expressed their desire
to fine! a solution which would be acceptable to all the parties
concerned. To this end the Union Government have, over a period
of years, made concrete proposais and expressed their willingness
to examine others. The Union Government continue to desire that
this matter be settled and in addition to making certain helpful
offers to the Fourth Committee last year, recorded once more the
Union's readiness to enter înto discussions with an appropriate
United Nations ad hoc body that may be appointed alter prior
consultation with the Union Government, and with terms of reference
which would allow the fullest discussion and exploration of ail
possibilities.
This offer did not, however, find a positive response and the
Assembly instead adopted resolution 1360 (XIV) which laid down
terms of reference for negotiation with the Union which were most
restrictive. The Union's representative pointed out, before the
adoption of the resolution, that the terms of reference were far more
restrictive than those of the Good Offices Committee and he voted
against the adoption of the resolution. You will therefore under
stand that the Union Government could not see any possibility of
fruitful results flowing from negotiations which required the Union
to place 'South West Alrica under the International Trusteeship Sys
tem'-terms ofreference whichprescribed the end result in advance.
The Union Government still believe that negotiations on the
basis proposed would not lead to any positive results.
The Union Government would, however, wish to reiterate their
readiness to enter into discussion with an appropriate United
Nations ad hoc body that may be appointed alter prior consultation
with the Union Government and which would have a full opportunity
to approach their task constructively, providing for fullest discus
sion and exploration of all possibilities-on the understanding of
course, that this is without prejudice ta the Union's consistently
1
G.A ., O.R.,Fourteenth Sess.,op. cit.8831d, 914th, 915th, 916th and 918th
Me2tings.
Vide para. 1,supra.
3 Vt'depara.120 (a}, supra.94 SOUTH WEST AFRICA
held stand on the judicial [juridical] aspect of the issue 1." {Italics
added.)
124. Respondent had intended reiterating the above offer at the
15th Session of the General Assembly which was to meet some weeks later.
A requcst by Respondent for early consideration of the South West
Africa question was, however, not acceded to by the Fourth Committee
and by the time it did corne up for discussion, Applicants had instituted
these proceedings.
In the light of this event the South African representative informed
the Fourth Committee that, since the Committee's discussion on South
West Africa was likely to traverse the same field as that covered by
the proceedings instituted by Applicants, the matter was, in Respon
dent's view, sub judice and should, therefore, not be discussed by the
Committee. The South African representative argued his contention at
some length, pointing out that discussion, and adoption of resolutions,
might have a prejudicial effect on the judicial proceedings and could
be construed as an attempt to usurp the fonctions of the Court. The
Committee rejected Respondent's proposal for an adjournment of the
debate pending the conclusion of the judicial proceedings-the Appli
cants voting against the proposai for adjournment
The South African representative then informed the Committee that
his delegation could not be a party to discussion of a matter which was
the subject of a judicial action pending in the Court, since in doing soit
would itself be violating the sub fudice rule •
In view of these events it was not possible for Respondent to deal
further with its offer to explore "all possibilities".
125. At 1, page 82, Applicants give an account of certain events at
the "Second Conference of Independent African States" at Addis Ababa
in June 1960. The relevance of these events to the proceedings before
the Court is not apparent, save that the Liberian representative's
reference to the determination of his Government "on behalf of ail
African States to pursue further action to get this terri tory placed under
the trusteeship provisions of the Charter", appears to confirm that in
the so-called negotiations with Respondent over the years, there had
been but one objective on the part of Applicants, namely United Nations
trusteeship for South West Africa.
126. Applicants also refer at 1, page 84, toGeneralAssemblyresolution
1565 (XV) 3•This resolution was adopted after the filing with the Court
of the Applications in these proceedings. Respondent therefore does
not intend dealing with the contents thereoff, save to state its strongest
objection to the reliance which Applicants, in referring to this resolution,
apparently place on the conclusion of the majority in the General
Assembly that "the dispute which has arisen between Ethiopia, Liberia
and other Member States on the one hand, and the Union of South
Africa on the other, relating to the interpretation and application of
the Mandate has not been and cannot be settled by negotiation".
127. Respondcnt refrains from dealing in this part of the Counter-
1 G.A ., O.R., Fifteenth Sess., Sup. I2.(A/44641, Annex II C, p.58.
2 Ibid.,Fourth Comm., 10,i9th Meeting, 14Nov. 1960, paras. 39-66, pp. 296-299.
3 Of 18 Dec. 1960, inG.A ., 0.R., Fifteenth Sess., Sup. 16.(A/4684),pp. 31-32. COUNTER-MEMORIAL OF SOUTH AFRICA
95
Memorial with the extracts !rom the report of the Committee on South
West Africa as quoted at I, pages 83 and 84 1•
Summary
r28. Respondent's submissions with regard to the facts dealt with in
this Chapter are stated in Chapters III to V below, in each case to
the extent relevant to the matter considered in such Chapter.
There remains, however, to be dealt with the following statements
by the Applicants in a summary at the end of Chapter JI of their
1lemorials:
(a) "Upon the dissolution of the League of Nations the Union did
2
not concealits desfre to annex the Territory ."
ln paragraphs r to 9 above, Respondent indicated that the Mandate
for South West Africa gave effect to a compromise arrangement which
involved, inter alia, that C Mandates were, in their practical effect, not
far removed from annexation. Respondent has further shown in this
Chapter that it considered doser association between South Africa and
the Territory to be a natural development and that it never made a
secret of its conviction that the interests of the inhabitants would best
be served thereby. At the time of establishment of the United Nations
and even before the dissolution of the League, Respondent clearly an
nounced its view that the Mandate should be terminated and the Ter
ritory incorporated in the Union. Respondent's proposai to that effect,
supported by the wishes of the inhabitants, was however rejected by
the United Nations in 1946.
(b) "Instead, short/y a/ter the United Nations refusai to permit in
corporation of the Territory, the Union contended that the United
Nations had no rt"ghtsof supervision, or other powers, with respect to
the Territory 3.''
Respondent's contention was in conformity with a general under
standing to that effect amongst Members of the League and of the
United Nations, 4nd given expression to be/ore and a/ter dissolution
of the League •
(c) "The Opinion of the Court being unsatisfactory to the Union,
the latter denounced the Opinion as 3eing in error, and proclaimed its
intention not to comply therewith .''
Respondent did not "denounce" the Opinion, nor did it "proclaim"
an "intention not to comply" therewith.
Respondent advanced reasons why it could not accept certain of the
conclusions in the Opinion, the most important reason being that cer
tain vital information was not before the Court when the Opinion was
given. Although Respondent could not accept the Opinion in toto, it
nevertheless made concrete proposais and considered counterproposals
in an endeavour to find an acceptable arrangement.
1 Vide para. 1, supra.
2 Vide I, p. 85.
3 Ibid., p.86.
• As will be furtherdealt with in Chap. IV. paras. 38-42, infra. SOUTH WEST AFRICA
(d) "There followed years of patient, though unavailing efforts on
the part of the General Assembly to obtain implementatùm of the
Opinion, by means of negotiation and appeal l,"
and,
"Having conclieded a/ter fourteen years of fruitless efforts to obtain
compliance on the part of the Union with the Mandate, that its
dispute with the Union has not been and cannot be settled by nego
tiation .... 2"
As regards the implication contained in the lastmentioned statement,
to the effect that there has not been compliance with the Mandate on
the part of Respondent, reference is made to subparagraph (e) below.
The allegations concerning "unavailing efforts" and "fruitless efforts",
and the conclusion that there is a dispute which cannot be settled by
negotiation were dealt with fully in Chapters V and VI of Respon
dent's Preliminary Objections. Inasmuch as the issues now before the
Court do not require a decision as to whether there is a "dispute"
which "cannot be settled by negotiation" the submissions made in the
Preliminary Objections in that regard are, save as dealt with where
relevant in Chapters III to V below, not repeated in the Counter
Memorial.
(e) "The Committee's repeated findings of Union violations of the
Mandate and recommendations thereon have been as unavailing as
the Committee's efforts to negotiate", and other allegations at page
57 concerning alleged violations of the Mandate.
Respondent denies that its administration of the Territory has not
been in conformity with the provisions of the Mandate. For the reasons
stated in paragraph I above, Respondent refrains from dealing in this
part of the Counter-Memorial with the substance of the Applicants'
allegations in this regard.
1 Vide I, P- 86.
2 Ibid., p87. CHAPTER III
FOUNDATIONSOF RESPONDENT'SLEGALARGUMENT
A. General Outline
r. The legal argument presented in this and succeeding Chapters
constitutes a reply to the issues raised by Applicants' Submissions I, 2,
7 and 8, viz., whether the Mandate for South West Africa still exists,
and, if so, whether the supervisory fonctions of the League of Nations
have passed to the United Nations 1•
2. lt may be convenient at this stage briefly to summarize the argu
ment which Respondent proposes to submit to the Court. It may be
stated in the following propositions:
(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 Mandate as a whole has lapsed.
{e) In the alternati"ve to (d),if the Mandate continues in force, Respon
dent, 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,
without any obligation on Respondent's part to submit to super
vision by any international organization or body.
As appears from the above, Respondent's argument will fall into two
main parts, dealing firstly with the disappearance of the provisions re
lating to the supervision of the League in respect of mandates (i.e.,
Art. 6 of the mandate instrument and attendant provisions in the man
date system) and secondlv with the lapse of the Mandate as a whole.
The first partis dealt with in Chapter IV below and the second in Chapte
V. In regard to the latter part, questions of asubsidiarynaturemayarise
regarding the compromissory clause in Article 7 of the Mandate: these
are considered in Chapter V, more particularly in Part B and the con
cluding portion of Part A thereof.
3. In the present Chapter, Respondent will consider a. number o{
topics of a general or introductory nature.
1 Vide Chap. I, para.1,supra, for the text of the Submissions. SOUTH WEST AFRICA
98
B. Effect of the Previous Advisory Opinion
4. In making their Submissions Nos. I and 21, Applicants in their
Memorials rely solely on the Advisory Opinion of this Court of II
July 1950, on the International Status of South West Africa, and ask
that that Opinion be reaffirmed 2•Inasmuch as certain submissions ad
vanced by Respondent in these proceedings are not in accord with con
clusions arrived at, or views expressed, by the Court or some of its
members in the Advisory Opinion of 1950, a question arises regarding
the approach of the Court to a previous advisory opinion where the
same issues arise in subsequent contentions proceedings. This ques
tion is dealt with in the next succeeding paragraphs.
5. Respondent submits that two general principles govern the ap
proach in contentious proceedings towards a previous advisory opinion
which dealt with the same subject-matter.
Firstly, although an advisory opinion will always command great
respect and prima facie authoritative weight as an expression of the
views of an eminent tribunal, the Court will never refuse to reconsider
conclusions reached in a previous advisory opinion, save perhaps where
a request for such reconsideration is frivolous or vexatious.
Manley O. Hudson states this principle as follows:
"Nor is the Court itself bound to adhere to conclusions reached in
an advisory opinion. If the question upon which an opinion is given
is later subm1tted to the Court for judgment, the matter is not res
fudicata; and though an opinion may be cited as a precedent, the
3
Courtis not bound to abide bythe conclùsionsstated in the opinion .''
In the Peace Treaties case, Judge \Viniarski said:
"Opinions are not formally binding on States nor on the organ
which requests them, they do not have the authority of res iudicata;
but the Court must, in view of its high mission, attribute to them
great legal value and a moral authority \"
6. Respondent's second proposition foilows Iogicallv from the first.
It is that .where sound reasons are established, the Court will depart
from a previous advisory opinion. This proposition is supported by
implication in the Judgment in the Upper Silesia case 5, referred to by
Applicants, where the Court affirmed a view previously expressed in an
advisory opinion because-"Nothing has been advanced in the course
of the present proceedings calculated to alter the Court's opinion on
this point 6." Clearly, the Court did not intend to formulate any general
rule of practice, such as suggested by Applicants in their Memorials,
where they use the words-
1 Qnoted in Chap. I,para. 1, supra.
2 Vide I, pp. 95-103-particularly p. 103.
3 Hudson, M. O., The Permanent Court of'Jnternational Justice I9zo-I942 (1943),
p.512. ·
4 Intupretalion of Peace Treflties with Bulgaria, Hungary and Romania, First
PhasP-,Advisory Opinion, I.C.]. Reports I950, p. 65, at p. gr.
' Certain German Interests in Polish Upper Silesia, lHerits, Judgment No. 7, I926,
P.C.!.] .• Series A, No. 7.
6 Ibid., p.3r. COUNTER-MEMORIAL OF SOUTH AFRICA 99
"... the practice of the Permanent Court in Upper Silesia wherein
the Permanent Court stated that it had already ruled upon an issue
in an advisory proceeding and then reaffirmed that ruling when the
same issue arose in the contentions proceeding 1".
The Court, in Respondent's submission, merely stated its finding and
its decision in that particular case. The statement implies that, where
good reasons are established, the Court will depart from a previous
advisory opinion.
It is submitted that the Court in its Judgment on the Prelirninary
Objections in the present rnatter, adopted the sarne approach when it
stated the following:
"The unanimous holding of the Court in 1950 on the survival and
continuing effect of Article 7 of the Mandate, continues to refiect the
Court's opinion today. Nothing bas since occurred which would
warrant the Court reconsidering it. Ali important facts were stated
or referred to in the proceedings before the Court in 1950 2." (Italics
added.)
In Respondent's submission the italicized words express the essence
of the Court's attitude, and imply that, had the Court's opinion
changed, it would not have hesitated to give effect to such change in
itsJudgment.
7. Respondent does not wish to suggest any general and cornprehen
sive rules as to when the Court will consider that there are sound
reasons justifying a departure frorn a previous advisory opinion. This
is essentially a rnatter that would depend on the particular circum
stances of each case. The presentation of new or additional facts,
deemed by the Court to be important, or the happening of subsequent
events having an influence on the issues raised in the proceedings, are
obvions examples of factors which rnay induce a Court to depart from
a previous advisory opinion, and were by implication recognized as
such in the passage quoted above from the Judgment on the Prelimi
nary Objections. But even in the absence of such factors the Court
will, in Respondent's submission, depart from a previous advisory
opinion if satisfied that justice requires it.
8. Applicants in their Memorials suggest the existence of a so-called
"principle" or "doctrine of Eastern Carelia", narnely "that an advisory
opinion as to a dispute is 'substantially equivalent to deciding the dis
pute' " •
In Respondent's subrnission, no such general principle or doctrine
was laid down in the Status of Eastern Carelia 4•In that case the Council
of the League of Nations requested an advisory opinion from the Court
as to whether a treaty entered into between Russia and Finland and
a Declaration made by Russia at the same time, constituted engage
ments of an international character which placed Russia under _anobli
gation to Finland. Finland contended that the Declaration was part of
the agreement with Russia. Russia rnaintained that the Declaration did
1 Vide I,p. 103.
2South West Africa, Pretiminary Objections, Judgment, l.C.]. Reports I96z,319,
at P· 334,
3 Vide 1,p. 98.
4 Slafus of Eastern Cardia, Advisory Opinion, r923, P.C.!.].Series B, No. 5.1100 SOUTH WEST Al'RlCA
not amount to a contract, but was only declaratory of an existing
situation and made merely for information.
The Court found that an advisory opinion on the question asked
by the Council of the League of Nations would have to embody a finding
on facts which were in dispute between Finland and Russia 1•Russia,
which was not a Member of the League of Nations at the time, refused
2
to take part in the advisory proceedings •
In the circumstances, the Court declared that it would be at a very
great disadvantage at an enquiry into the disputed facts. The Court
said:
"lt appears now to be very doubtful whether there would be
available to the Court materials sufficient to enable it to arrive at
any fudicial conclusion upon the question of /act: What did the
parties agree to? The Court does not say that therc is an absolute
rule that the request for an advisory opinion may not involve some
enquiry as to facts, but, under ordinary circumstances. it is cer
tainly expedient that the facts upon which the opinion of the Court
is desired should not be in controversy, and it should not be left
to the Court itself to ascertain what they are.
The Court is aware of the fact that it is not rcquested to decide
a dispute, but to give an advisory opinion. This circumstance,
however, does not essentially modify the above considcrations. The
question put to the Court is not one of abstract law, but concerns
directly the main point of the controversy between Finland and Ri,ssia,
and can only be decided by an investigation into the facts imderlying
the case. Answering the question would be substantially equivalent to
deciding the dispute between the parties. The Court, being a Court of
Justice, cannot, cven in giving advisory opinions, depart from the
essential rules guiding their activity as a Court3." (Italics added.)
.The Opinion as a whole indicates that the passage "Answering the
question would be substantially equivalent to deciding the dispute" was
intended to refer to the particular case and was not intended to lay
down any general rule, or to fonnulate a general principle or doctrine.
Furthermore, it related purely to the Court's "activity" as a judicial
tribunal in investigating the matter with a view to coming to a "judi
cial conclusion upon the question of fact". Nothing was said or implied
regarding the weight to be attached to such conclusions in possible
later contentious proceedings.
In any event it is not clear what effect Applicants intend should be
given in the present proceedings to the expression "substantially equiva
lent to deciding the dispute". In stating their appreciation of the effect
of the so-called _doctrine laid down in Certain German Interests in Upper
Silesia, Applicants, inter alia, propound the following proposition:
'';.. advisory opinions are not enforceable and do not have the
force of res fudicata; nevertheless. they state what the law on a
given question is, and when that question concerns an actual
dispute, the advisory opinion, especially if rendered after full
1 Status of Eastern CaYelia, op. cit.,28.
2 Ibid.,pp. 27-28.
3 Ibid., pp. 28-29. COUNTER-MEMORIAL OF SOUTH AFRICA IOI
hearing of the disputants' submissions is 'substantially equivalent,
to deciding the dispute;'" 1.
Do Applicants hereby suggest that in the circumstanccs postulated, the
Court would never depart from a previous advisory opinion, even if
completely satisfied that it was wrong? If so, such a suggestion is clearly
untenable. Or do they merely suggest that in the circumstances postu
lated, the advisory opinion will command great respect and prima faàe
authoritative weight? If no more than the latter is meant, the contents
of the so-called doctrine accords with Respondent's submission.
9. In the Mcmorials Applicants also state that in the Peace Treaties
case:
"Majority and dissenting opinions alike recognized implicitly or
explicitly the principle of Eastern Carelia, namely that an advisory
opinion as to a dispute is 'substantially equivalent to deciding the
dispute' 2."
In Respondent's submission, there is no justification for this statement.
Although some of the minority judges in the Peàce Treaties case
may have held the view that some general rule was formulated in the
Status of Eastern Carelia to the effect of or weight to be attached to
advisory opinions in subsequent contentions proceedings, that was not
the view of the majority.
The majority opinion in the Peace Treaties case merely distinguished
the two cases, holding that Statits of Eastern Carelia was profoundly
different for two reasons-firstly bccause the question put to the Court
in tha t case-
"... was directly related to the main point of a dispute actually
pending between two States, so that answering the question would
be substantially equivalent to deciding the dispute betwecn the
parties ... ";
and secondly, becausc-
"... at the same time it raised a question of fact which could not be
elucidated without hearing both parties 3".
There is nothing in the Opinion of the majority in the Peace Treaties
case which justifies a conclusion that the majority jud~es interpreted
the Status of Eastern Carelia case as Jaying down any gcneral rule,
principle or doctrine regarding the effect or weight of advisory opinions,
or which justifies a conclusion that thcy gave recognition to any such
gcneral mie, principlc or doctrine. ln effect, the majority opinion in the
Peace Treaties case refutes the very existence of any such gencral rule,
principle or doctrine. That is why writers who interpret the Status of
Eastern Carelia case as Iaying down such a rule, principle or doctrine,
consider that case to have been overruled bv the Peace Treaties case.
In this respect, rcference may be made to fauterpacht, The Develop
ment of International Law by the International Court, where the learned
author states that the Advisory Opinion in the Status of Eastern Carelia
1
2 Vide 1, p. 97.
3 Ibid.,p. 98.
Interprelation of Pence Tnaties with Bulgaria, Hungary and Romania, FiYsl
Phase, Advisory Opinion, l.C.J. Reports r950, p. 72.I02 SOUTH WEST AFRICA
1
case "... can no longer be regarded as a precedent of authority" , and
that the case "... was not followed, in fact, in the Advisory Opinion
on the Interpretation of Peace Treaties" 2•
C. Effect of the Judgment and Opinions on the Preliminary Objections
10. Respondent will at a later stage deal with some of the findings
of the members of the Court in the Judgment and Opinions on the
Preliminary Objections in this matter. In some instances Respondent's
argument derives a measure of support from such findings. Thus, as
far as the question of the survival or otherwise of the provisions re
garding League supervision of Mandates is concerned, four members
of the Court held that such provisions had lapsed on the dissolution
of the League, and although the other II members left the question
open, seven adopted reasoning which was to a greater or lesser extent
inconsistent with the survival of these provisions •
On the other hand, as will appear hereafter, certain findings were
made which are contrary to submissions which Respondent will advance
regarding the question whether the Mandate as a whole has lapsed "·
lt is necessary therefore to consider the correct approach which
should, in Respondent's submission, be adopted at the merits stage to
such findings.
II. The basic consideration is that a preliminary objection is not
meant to, and is not able to, give rise to a judgment that is binding
in regard to the issues on the merits of the dispute between the parties.
This consideration was recognized by the Permanent Court of Inter
national Justice. Thus, in the Mavrommatis case the Permanent Court
emphasized that a decision on the preliminary objections was given
"... without, however, in so doing, in any way prejudging the final
outcome of such argument ... " 5 (i.e., the argument on the merits).
r2. Even where a decision on the preliminary objections bas involved
a consideration of certain arguments relating also to the merits of the
dispute, this does not give rise to any principle of res judicata. This
issue was considered by the Permanent Court in the Polish Upper
Silesia case, where the matter was formulated as follows:
"... the Çourt cannot in its decision on this objection in any way
prejudge its future decision on the merits. On the other hand, how
ever, the Court cannot on this ground atone declare itself incom
petent; for, were it to do so, it would become possible for a Party to
make an objection to the jurisdiction-which could not be dealt
with without recourse to arguments taken from the merits-ha ve
the effect of precluding further proceedings simply by raising it in
limine titis; this would be quite inadmissible.
The Court, therefore, ... considers that it must proceed to the
enquiry above referred to, even if this enquiry involves touching
1 Lauterpacht, H., The Development of International Lawbythe International Court
(1958), p.248.
2 Ibid.,p. 358.
3 Vide Chap. IV, para. 55, infra.
4 Vide in particular Chap. V, Part B, hereafter.
" Mavrommatis Palestine Concessions, Judgment No. 2, z92-1, P.C.!.]., Series A,
No. 2, p. 10. COUNTER-MEMORIAL OF SOUTH AFRICA 103
upon subjects belonging to the merits of the case; it is, however,
to be clearly understood that nothing which the Court says in the
present judgment can be regarded as restricting its entire freedom to
estimate the value of any arguments advanced by either side on the same
subjects during the proceedings on the merits 1." (Italics added.)
Findings made in a judgment on preliminary objections would
naturally carry great weight where the subject-matter of the findings
is in issue on the merits. Nevertheless the Court would always enter
tain arguments directed towards persuading it to depart from its pre
vious judgment, and would corne to a different conclusion where sound
reasons exist therefor.
D. Origin and Contents of the Mandate
13. By Article 22 of the Covenant of the League of Nations, the
signatory Powers agreed that what came to be known as the "mandate
system" was to be applied to certain colonies and possessions, including
South West Africa.
As was indicated above 2,the agreement as eventually set forth in
Article 22 was a compromise arrived at after much travail at the Paris
Peace Conference of 1919. The history of the Article explains also why
its provisions were in certain respects vague and lacking in legal preci
sion. Nevertheless the broad trends of what was intended, as distinct
from certain questions of detail, seem reasonably clear.
The Article commenced with setting out the signatories' agreement
that to the colonies and territories in question "... there should be
applied the principle that the well-being and development of ... [the
inhabitants] form a sacred trust of civilization ... ". It further recorded
their agreement that "securities for the performance of this trust"
should be embodied in the Covenant.
The second paragraph of the Article stated that "the best method of
giving practical effect to this principle" would be to "entrust" the "tute
lage" of the "peoples" concerned to suitable "advanced nations", wiil
ing to accept it, who would "exercise" it "as Mandatories on behalf of
the League".
The wording of the Article as a whole, as well as its historical back
ground, suggest strongly that the references to "trust", "tutelage" and
"Mandatories" were not intended to bear technical legal meanings, by
exact or close analogy to municipal law institutions of trust, tutelage and
mandatum. So, for instance, the English word "trust", which is capable
of a technical legal meaning as well as of a more general ordinary
meaning, depending on context, was rendered in the French version by
the word mission, meaning in this context "task" or "undertaking",
and thus confirming that a non-technical connotation of "trust" was
intended. The conception, also, of the "tutelage" of a backward people
or community by an "advanced nation" could at most have been in
tended in·a broad, metaphorical sense. It is significant that in the actual
mandate instruments which came into existence subsequently, the words
"trust" and "tutelage" did not appear at all. Even in the case of the
1 Certain German Interests in PoliUpper Silesia, jurisdictiJudgmenl No. 6,
.r925, P.C./.]Series A, No. 6,p.15.
2 Chap. II, paras. 2-9. SOUTH WEST AFRICA
words "Mandatory" and "Mandate", which were retained in the man
date instruments themselves, the analogy, if any, with a private law
mandatum was probably intended to be of the broadest and most general
nature only. The more detailed and technical aspects of the private
law institution could hardly have been known to the Peace Conference
as a whole-as distinct possibly from certain of its members-and
cannot therefore fairly be presumed to have been intended to be incor
porated in its covenants. It was probably by reason of considerations
such as these that the majority of the Court in the 1950 Advisory
Opinion expressed the view that it was "... not possible to draw any
conclusion by analogy from the notions of mandate in national law or
from any other legal conception of that law" 1•
It seems then, that what was said in the opening paragraphs of
Article 22 concerning a "sacred trust" and "tutelage", must be regarded
as being descriptive of the idealistic or humanitarian objectives involved
in the mandate system, and that the reference to "Mandatories on be
half of the League" is to be understood as affording a broad indication
of the method whereby those objectives would be sought to be attained.
It is, therefore, to the more detailed provision in Article 22 for "securi
ties for the performance of this trust" that regard must be had in order
to determine the juridical content of the mandate system as envisaged
by the signatories to the Covenant.
I4. On analysis the following "securities" are found embodied in the
further provisions of Article 22:
(a) Although the Mandatories were to have authority and contrai in
respect of the territories concerned (Art. 22 (8)), in other words (at
any rate in the case of B and C Mandates) tille or power of govern
ment and administration (Art. 22 (5) and (6)), this would vary
according to circumstances (Art. 22 (3) and (8)) and would be sub
ject to conditions (Art. 22 (5) and (6)).
(b) The said conditions would be directed towards a two-fold purpose,
namely,
(i) to provide certain "safeguards in the interests of the indigenous
population", and
(ii)to secure certain interests or benefits for Members of the League
and their nationals (Art. 22 (5) and (6)).
(c) More particularly, the conditions mentioned in regard to B and C
Mandates as directed towards safeguarding the interests of the
indigenous population were:
"... conditions which will guarantee freedorn of conscience and re
ligion, subject only to the maintenance of public order and rnorals,
the prohibition of abuses such as the slave trade, the arms traffic
and the liquor traffic, and the prevention of the establishment of
fortifications or rnilitary and naval bases and of military training
of t?-e nativ;,s for other than police purposes and the defence of
terntory ....
(Art. 22 (5) read with (6)).
(d) Specifically directed towards the interests or benefit of Members
of the League and their nationals, would be conditions to "secure
1 International Staeus of South-West A/rica, Advisory Opinion, l.C.J. ReIQSO,
p. 128,at p 132. COUNTER-MEMORIAL OF SOUTH AFRICA 105
equal opportunities for the trade and commerce of other Mcmbers
of the League" (Art. 22 (5)). This so-called "open door"' clause
would not, however, apply in regard to C Mandates. (Vide limitative
words al the end of Art. 22 (6).) Il is further evident that certain
of the conditions mentioned in (c) above as directed towards
indigenous interests, could in addition serve the interests of Leaguc
Members (e.g., the restrictions upon traffic in arms and ammunition
and upon fortification and armament).
(e) The Mandatory was to be under an obligation to rendcr to the
Council of the League "an annual report in reference to the tcrritory
committed to ils charge" (Art. 22 (7)).A Permanent Mandates
Commission woulcl receive and examine the reports and advise the
Council "on all matters relating to the observance of the mandates"
(Art. 22 (9)).
(!) The "degree of authority, control, or administration" to be exer
cised by the Mandatory was to be "explicitly defined" in each case-
by agreement between Members of the Lcague or by the Council
(Art. 22 (8)).
r5. It will be observed that Article 22 did not itself purport to put
the mandate system into operation. It set forth the agreed idealistic
objectives of the system, agreed methods whereby it would be put into
operation and agreed features which would be incorporated therein.
The provisions of Article 22 clearly envisaged that concrete steps would
have to be taken for the complete constitution of the system, namely
towards entrusting the "tutelage" of the inhabitants of particular ter
ritories to particular "advanced nations ... willing to accept it" (Art.
22 (2)), constituting thosc "nations" as "Mandatories on behalf of the
League" (Art. 22 (2)), and explicitly defining the deir-ee of authority,
control or administration to be exercised by them (Art. 22 (8)); and
those provisions prescribcd conditions which were in this process to be
imposed as obligations upon the Mandatories, substantively in the in
terests of the mandated peoples and Mernbers of the League (vide
Art. 22 (5) and (6) and para. r4, supra), and procedurally with a view
to international supervision of the "observance of the mandates", i.e.,
of the exercise of the substantive powers and compliance with the sub
stantive obligations (Art. 22 (7) and (9)).
In other words, Article 22 was an agreement between Me1:1bers ?f
the League as such, regarding a mandate system to be constituted m
pursuance thereof. The system itself, however, would begin to operate
only upon the conferment on the respective Mandatories as such (not
necessarily Members of the League) of specific Mandates in respect of
particular territories, and upon the specific definition of the Manda
tories' rights and obligations in connection therewith.
16. The concrete steps envisaged by Article 22 were duly taken, in the
following order:
(a) The Principal Allied and Associated Powers (in whose favour
German y was to renounce her overseas possessions by Arts. Ir8
and u9 of the Treaty) allocated the varions territories to different
Mandatories, and, inter alia, decided on 7 May 1919 that the
Mandate for South West Africa should be held by Respondcnt.
(b) Draft mandate instruments were considered by the Principal
Allied and Associated Powers and, after agreement amongst them- ro6 SOUTH WEST AFRICA
selves and with the designated Mandatories as to the terms thereof
submitted to the Council of the League. ln the case of South West
Africa the Mandatory's agreement appears !rom the second and
third paragraphs of the preamble of the draft submitted to the
Council and of the instrument as finally approved •
(c) The Council of the League confirmed the Mandates 2, thereby
constituting the designated Mandatories as "Mandatories on behalf
of the League".
(d) The Council further, in pursuance of Article 22 (8), defined the
terms of the Mandates in the manner set out in the instruments of
Mandate 3•This was generally in accordance with the drafts sub
mitted, subject to certain alterations ".
17. The provisions of the Mandate for German South West Africa,
as defined by the Council on 17 December 1920, were typical of C
Mandates. They can, for convenience, be grouped as follows:
(a) Mandaiory's Tille: The Preamble set out that there was con
ferred and confirmed, in accordance with Article 22 of the Covenant
"a Mandate ... to administer the territory aforementioned", which
the Mandatory had undertaken "to exercise ... on behalf of the
League" 5.Article 2 provided that "the Mandatory shall have full
power of administration and legislation over the Territory ... as
an integral portion of the Union of South Africa, and may apply
the laws of the Union of South Africa to the territory, subject to
such local modifications as circumstances may require".
(b) Mandatory's Substantive Obligations: These were set out in Articles
2 to 5. Article 2 imposed the general obligation to "promote to
the utmost the material and moral well-being and the social progress
of the inhabitants". Articles 3, 4 and 5 imposed conditions as con
templated in the portion of Article 22 (S) of the Covenant cited in
paragraph 14 (c) above-those in Article 3relating to the prohibition
of abuses such as the slave trade, the arms traffic and the liquor
traffic; those in Article 4, to the prevention of fortifications and
military training of natives other than for police and defence
purposes; and those in Article 5, to freedom of conscience and reli
gion. Article 5 was worded with reference not only to freedom of
conscience and worship on the part of the inhabitants, but also to
allowing ail missionaries who were "nationals of any State Member
of the League of Nations" to enter into, travel and reside in the
Territory for the purpose of prosecuting their calling. While all
the obligations imposed by Articles 2 to 5 were "safeguards ...
in the interests of the indigenous population", certain of the pro
visions (e.g., those of Article 5 relating to missionaries) appear
to have been intended to secure and serve in addition the interests
of Members of the League and their nationals.
(c) Mandatory's Procedurat Obligations: Article 6 imposed the obliga-
1
Lof N., O.].,1921 (Xo. 1),p. S9. Vide also Preambles to other C l\landates
at pp. 84-94 and Chap. II, para. 15,supra.
2 End of Prcamble of Mandate for South West Africa and also of other C Man-
dates.
3 Vide end of Preamble.
4 Vide Chap. II, para. 15,supra.
' Paras. 2 and 3 of Pream ble, COUNTER-MEMORIAL OF SOUTH AFRICA 107
tion to render to the Council of the League, to its satisfaction,
an annual report "containing 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".
(d) Amendment of Mandate Provisions: Article 7 provided that the
consent of the Council of the League was required for any modifica
tion of the terms of the Mandate.
(e) Compulsory Jurisdiction for Adjudication of Disputes: Article 7
also set out the Mandatory's agreement to the submission to the
Permanent Court of International Justice of disputes between itself
and another Member of the League of Nations, in so far as they
related to the interpretation or application of the provisions of the
1
Mandate and could not be settled by negotiation .
18. With reference to the origin and content of the Mandate, Res
pondent wishes to emphasize two points:
(a) The Mandate required, and arase out of, the consent of a number
of parties, including the Mandatory.
During the hearing of the Preliminary Objections, Respondent sub
mitted that the Mandate never was a "treaty or convention in force"
within the meaning of Article 37 of the Statu te of the Court 2• For the
purposes of this submission, it was necessary to consider not merely
whether the Mandate gave rise to international obligations, but the
character of the act or instrument that gave these obligations their
legal force.
The majority of the Court held that the Mandate derived its legal
force from international agreement to which the Mandatory was a
party 3•On the basis of this finding, it is obvious that the existence and
terms of the Mandate required the consent of the Mandatory.
But the same result follows from the contrary view, expressed, inter
alia, by Judge Basdevant 4 and by Judges Spender and Fitzmaurice ~
They held that the Mandate had derived its legal force from a quas1-
legislative exercise by the Council of the League of its powers in terms of
Article 22 (8) of the Covenant to define the degree of authority, con
trol or administration to be exercised by the Mandatory. However,
this conclusion would also not derogate from the fact that the Manda
tory's consent to the conferment and terms of the Mandate was required
and obtained. Thus the basic terms of the C Mandates were laid clown
in the Covenant, which incorporated the compromise agreement to
which Respondent had consented. When the Covenant was drafted, it
was clear that the Mandate for South West Africa would be granted
to Respondent. In fact the conforment of the Mandate pre-dated the
signature and coming into force of the Treaty of Versailles, of which the
1 Vide Chap. II, paras.r 1-16,supra, for the history of this clause.
2 South West A/rica, Preliminary Obje"ctions, Oral Proceedings(2 to 22 Oct.
1962), p.365.
3Vide South West Africa, Prelimù:ary Objectiom, Judgment, I.C.J. Rep<ortsz962,
p. 331; the separate opinion of Judge Bustamante, pp. 358-361; the separate
opiruon of Judge Jessup, pp. 398-4or; and the separate opinion of Judge Sir
Louis Mbanefo, pp. 440-442.
• Ibid., pp. 460-462.
Wyk atidp. 598.474-494; vide also Judge Spiropoulos at pp. 347-348 and Judge vanro8 SOUTH WEST AFRICA
Covenant formed a part 1. The mandate instrument could not depart
from the lines laid down by Article 22 of the Covenant without the
express consent of the Mandatory 2• In fact, save for the addition of a
compromissory clause, the mandate instrument for South West Africa
clearly adhered to the principlcs which had been agreed to by the authors
of Article 22. Of particular importance for present purposes is the fact
that the provisions regarding League supervision contained in Article 6
of the Mandate consisted basically of a repetition of the contents of
Article 22 (7) of the Covenant. And the com9romissory clause, which
added a new element not provided for in Article 22, recorded that the
Mandator.y,'s consent thereto had been obtained ("The Mandatory
agrees ... ).
Whether or not the Mandate ever was a "treaty or convention" does
not therefore affect the basic consideration that the Mandate required
for its creation and validity the consent of a number of parties, in
cluding the Mandatory.
(b} Regard being had to the contents of Article 22 of the Covenant and
of the Mandate instrument, the tenns of the Mandate could not be
applied fully in the absence of the League of Nations.
As has been noted above, Article 22 of the Covenant and the Mandate
instrument contained various references to the League of Nations and
toits Members.
Thus Article 22 (7) of the Covenant and Article 6 of the 1'.fandate
both provided for the rendering of annual reports to the Council of
the League, and Article 22 (9)of the Covenant provided for the creation
of a Permanent Mandates Commission to receive and examine these
reports and to advise the Council thereon.
Although of lesser importance for present purposes, the provisions of
Articles 5 and 7 of the Mandate contained similar features. Article 7
required the consent of the Council for modification of the terms of
the Mandate, and provided for compulsory jurisdiction solely with
reference to disputes between the Mandatory and another Member of
the League of Nations. Article 5 required special facilities for mis
sionaries who were nationals or any State :Member of the League of
Nations.
At present Respondent wishes to emphasize only that these various
provisions can no longer be applied in accordance with their express
terms. For purposes of Respondent's argument 3 this is of particular
importance as regards the provisions concerning administrative super
vision 4. During the lifetime of the League of Nations there was no
difficulty about submitting annual reports to the Permanent Mandates
Commission and the Council of the League of Nations exactly in accord
ance with the provisions of the Mandate and the Covenant 4.The disso
lution of the League brought about a radical change in this respect.
As pointed out by Judge Read in his minority opinion in the 1950
Advisory Proceedings, the dissolution of the League gave rise to a
l Vide Chap. II, para. IO,supra.
2 Vide report of M. Hymans, adopted on 5 Aui2;. 19·zo. in Lof N., O.]., 1920
(Xo. 6),p. 337.
3 Vide broad exposition in para. 2,supra.
4
Article22 (7) and (9) of the Covenant and Article 6 of the ::V1andate. COUNTER-MEMORIAL OF SOUTH AFRICA rog
situation wherein "it was no longer possible for the Union to send
reports to a non-existent Council, or to be accountable to, or supervised
by, a non-existent Permanent Mandates Commission" 1•
E. General Principles Applicable in Determining Whether
Particular Provisions of the Mandate Still Exist
I. GENEHAL
rg. The situation indicatcd at the conclusion of the previous para
graph necessarily raises questions regarding the continuecl existence or
otherwise of the provisions in question, and particularly those con
cerned with administrative supervision. Inasmuch as they can no longer
be applied in accordance with their express terms-assuming, of course,
that those terms are to be understood as bearing thcir apparently
obvious meaning-it follows prima facie that these provisions lapsed
on dissolution of the League. If they did not lapse, they ca.n today be
applied only in a manner different from that laid clown by their express
terms (understood as aforesaid) and from that applied in practice during
the lifetime of the League of Nations. The question is thercfore how
such a situation cou!d possibly have arisen. Excluding possibilities that
are wholly far-fetched, it seems that it could have arisen on one or more
pf four broad bases only, viz.:
(a) If the express terms of the provisions in question are as a matter
of interpretation to be understood in a sense which, contrary to
their apparently obvious meaning, would enable the provisions
to operate despite dissolution of the League.
(b) If the Mandate was abinitio subject to an implied provision providing
for its adaptation in the event of the dissolution of the League.
(c) Jf an agreement, express or implied, making such provision, was
entered into during the period of the foundation of the United
Nations Organization and the dissolution of the League, or there
after.
(d) If some legal principle, operating independently of the intent of
those concerned, effected some change in the Mandate enabling
the provisions in question to operate after the dissolution of the
League 2•
These four potential bases involve thrce separate legal concepts, viz.:
(i) Interpretation of the express terms of an instrument.
(ii) The implication of a term or agreement not expressed in the
instrument.
(iii) Legal rules affecting relationships between States and operating
independent!y of their consent, express or implicd.
It will be convenient at this stage to set out briefly the legal prin
ciples which are, in Respondent's submission, applicable to these_thr~e
concepts. For convenience (ii) will be considered in conjunction w1th (1).
1 International Status of South-West Africa, Advisory Opinion, 1.C.J. Repr950.
p. 166.
2 Ifit were to become nccessary to consider the survival or otherwiof the com
promissory clause in Article 7 of the ;\fandathe ~ame bases would be applicable.110 SOUTH WEST AFRICA
Il. PRINCIPLES OF INTERPRETATION AND IMPLICATION
20. The major questions of interpretation which will be dealt with at
this stage of the proceedings relate to the provisions of Article 22 of the
Covenant and of the mandate instrument. The Covenant was of course
a convention among Members of the League, and as sÙch the ordina.ry
principles of treaty interpretation would apply to it. And the mandate
instrument, whether or not it was a treaty in the ordinary sense of the
word, in any event embodied the concord of wills of a number of parties,
1
including the Mandatory • In principle and logic the same rules of
interpretation would therefore be applied to the mandate instrument
whatever its true juridical nature may have been-as to a document
embodying an international agreement.
For convenience Respondent will, in the following exposition, employ
terminology which is appropriate specifically to international agree
ments. It must be borne in mind, however, that, for the reasons stated,
the princip1es set out therein are equa1Iy applicable to the Mandate
instrument, whether or not it could be regarded as ever having been a
"treaty or convention".
21. Certain principles applicable to the interpretation of international
agreements a.reset out in detail, with reference to authority, in the Oral
Proceedings relating to the Preliminary Objections 2• Respondent does
not propose reviewing the authorities in full again, but will merely refer
to the major principles which are, in its submission, relevant to these
proceedings.
22. Common Intent 2•
Treaties and conventions, being international agreements, owe their
effect in law to the joint or common consent of the parties thereto.
Consequently ail questions concerning either the existence or the measure
or meaning of a treaty obligation are to be answered basically with
reference to the common intent of the parties.
The basic aim of treaty interpretation, as of interpretation of contracts
in municipal law, is therefore to arrive at and give effect to the common
intent of the parties, as that common intent existed at the time when
the agreement was reached. To this aim ail the rules and principles of
interpretation must be subservient-they are intended merely to be of
assistance for the purpose of arriving at the common intent of the
parties.
23. Actuality, Natural Meaning and Contemporaneity 2•
In seeking to ascertain the common intent of the parties, a tribunal
will in the first instance have regard to the principles of actuality,
natural meaning and contemporaneity. This means that prima facie:
(a) the text of the treaty as it stands should be regarded as fully and
accurately expressing the common intent of the parties (principle
2
of actuality) ;
(b) the language of the tcxt is to be given its normal, natural and
unstrained meaning in its context (principle of natural meaning) ~;
(c) the text should be appraised in the light of concepts and linguishc
L Vide para. 18 (a), supra.
2 Oral Proceedings, 3 Oct. 1962 (morning). COUNTER-MEMORIAL OF SOUTH AFRICA HI
usage current at the time of its execution (principle of contem
poraneity) 1•
In applying these principles, it is, of course, necessary to look at
and consider the instrument as a whole before any conclusion is reached
about the meaning or effect of any part thereof 2•
Where the application of these principles gives rise to a clear, un
ambiguous and coherent result, it is only in exceptional circumstances
that a Court would depart therefrom, to find, e.g.-
(i) that the text must be regarded as being amplified by something
not expressed therein; or
(ii) that the text is to be understood in some sense other than the
1
ordinary and natural one •
Implication of Tacit Agreement 1
24. The principle of actuality referred to above involves that the
parties must prima facie be considered to have expressed their full
agreement in the written text. Exceptionally, however, a conclusion may
be warranted that something ''goes without saying", i.e., that the
parties were in fact agreed upon something additional to the text with
out giving expression to such agreement.
Courts in all legal systems guard themselves against assenting to such
a pro_posedimplication on any but the most cogent grounds, realizing
that implication on a basis of speculation, or of what the parties ought
reasonably to have done, would amount to the making of a new bar
gain or compact for the parties, as distinct from the Court's true func
tion of giving effect to the bargain or compact actually agreed to by
the parties themselves. Consequently the requirement is stressed that
an implication of such tacit consensus must arise necessarily or inevitably
from the relevant facts, in the sense that ail other reâ.sonable inferences
are excluded.
25. Two further corollaries arise from the principles stated above:
(a) The term sought to be implied must be capable of formulation
in substantially one way only. If the content of the term sought
to be implied is doubtful, then one cannot conclude that the parties
tacitly agreed on anything at ail 3.
(b) Where the written document makes express provision for any
eventuality, there is increased difficulty about finding that there
must in addition be an implied term covering substantially the
same ground as such express provision 3•
26. Travaux Préparatoires, Contemporanea Expositio and Subsecuta
Observatio 3•
Travaux Préparatoires, Contemporanea Expositio and Subsecuta Ob
servatio are ail recognized as legitimate aids to interpretation where
required. But their degree of usefulness must necessarily vary with cir
cumstances. Thus:
(a) Where the purpose of recourse to such aids is to assign a meaning
to the text of an instrument, their potential utility would decrease
1Oral Proceedings, 3 Oct. 1962 (morning).
3 Oral Proceedings, 3 Oct. 1962.
Oral Proceerlings, 3 Oct. 1962 (afternoon).112 SOUTH WEST AFRICA
or increase in accordance with the extent to which the text in
the particular respect is itself clear, on the one hand, or obscure
or ambiguous on the other.
(b) Where the purpose is to ascertain whether the parties were tacitly
agreed upon something not expressed in the instrument, the ques
tion of textual clarity docs not arise, but such extraneous facts,
in so far as they are relevant, could form an important part of the
data for the drawing of inferences concerning consensus or the ab
sence thereof in the particular respect.
Efjectiveness (Ut res magis valeat quam pereat) 1
27. This principle takes account of the objects and purposes of the
instrument to be interpreted, and presumes that the parties intended
for particular provisions the maximum effectiveness, consistent with the
text, towards achievement of such objects and purposes.
The degree to which this principle could assist interpretation also
depends on circumstances. Thus it could be a factor-
(a) in choosing between alternative possible meanings of an ambig
uous or obscure text, or
(b) in deciding whethcr an inference of tacit agreement does or does
not arise necessarily in a particular respect 1.
28. To some extent different considerations a1ise in the operation of
the principlc of cffectiveness in these two different applications thereof.
There are, however, certain basic propositions that are common to
both, viz.:
(a) The principle of effectiveness is only an aid towards arriving at
the intention of the parties. It cannot operate to give a higher
degree of efficacy to the instrument than the parties intended. lt also
cannot act as·a substitute for a non-existent common intention 1•
(b) The objects and purposes, to which effect is sought to be given,
must themselves be ascertained by interpretation. The principle
of effectiveness cannot operate to ascribe to the parties a loftier
purpose than the one they actually had in mind .
29. In its application as an aid to textual interpretation, the principle
of effectiveness cannot override the clear meaning of the text. It can at
most assist the Court in deciding which of two or more possible mean
ings of an expression is, in case of doubt. to be preferred. lt cannot
justify a "meaning" which the language cannot bear 1•
30. In its operation relative to implied terms, the principle of effect
iveness also has a relatively limited application. Basically it only ~eans
that, for the purpose of deciding whether a term is to be imphed or
~ot, regard is to be had to the probability that the parties woul~ have
mtended a result which is in consonance with the general obJect or
purpose which they had in mind. To put it in a different way, the fact
that the parties had a certain object or purpose in mind may in certain
circumstances give rise to grounds for inferring an implied term. In all
cases the ordinary rules relating to implied terms would still apply.
Thus it would not be sufficient to have regard rnerely to the purpose
or object of the parties. The purpose or object would be only one of
the circumstances to be considered, although in some cases it might
1 Oral Proceeding~. 3 Oct. 1962 (afternoon). COUNTER-MEMORIAL OF SOUTH AFRICA 113
be a very important one.. It would, however, always be nccessary to.
examine all the relevant facts and circumstances, giving due weight
to each one 1.Furthermore, the ordinary rule applies that an implied
tcrm cannot override the express terms of the instrument, or operate
to regulate some aspect for which express provision is made in the
instrument. Thus a finding that the parties had a certain purpose or
object in mind, would not justify a radical amendment of the instrument
in order to give effect to such purpose or object. In this regard, particular
reference may be made to the following passage from The Law of Treaties,
by Lord McNair:
"The rule of effectiveness must mean something more than the
duty of a tribunal to give e(Jectto a treaty; that is the obvious and
constant duty of a tribunal; that is what it is there to do. The rule
must surely mean, in the mind of the party invoking it: 'If you (the
tribunal) do not construe the treaty in the way that I submit to
you to be correct. this treaty will fail in its object.' But that is a
petitio principii, because, as bas been submitted in the previous
chapter, it is the duty of a tribunal to ascertain and give effect to
the intention of the parties as expressed in the words used by them
in the light of the surrounding circumstances. Many treaties fail-and
rightly fail-in thcir object by reason of the words used, and
tribunals are propcrly reluctant to stcp in and modify or supple
2
ment the language of the treaty .''
Ill. LEGAL RULES AFFECTING RELATIONSHIPS BETWEEN STATES AND
OPERATING lNDEPENDENTLY OF THEIR CONSENT, EXPRESS OR lMPLIED
31. Article 38 (1) of the Statute of the Court provides as follows:
"The Court, whose fonction is to decide in accordance with
international law such disputes as are submitted toit, shall apply:
(a) international conventions, whether general or particular, estab
lishing rules cxpressly recognized by the contesting States;
(b) international eustom, as evidence of a general practice accepted
as law;
(c) the general principles of law recognized by civilized nations;
(d) subject to the provisions of Article 59, judicial decisions and the
teachings of the most highly qualified publicists of the various
nati~ns, as subsidiary means for the determination of rules of
law.
Subparagraph (d) clearly is not a source of law which is to be recog
nized by the Court, but merely a method which the Court may adopt
in ascertaining what the legal principles are. Rosenne puts it as follows:
"Hcads (a), (b) and (c) [of Article 38 (1)]describe the various
types of mies, from the point of view of legal theory, of which to
gether international law is composed. Head (d) refers to an entirely
different aspect, namely subsidiary means for the determination
of rules of law, i.e., of the rules falling into one or other of heads
(a), (b) and (c) 3.''
1 Oral Proceeding~.3 Oct. 1962 (afternoon).
l McNair, A. D., The Law of Treaties (r961)p.383.
3 Rosenne, S., The lnt~rnationaCourtof ju<t.ice (19.57), p. 424. SOUTH WEST AFRICA
Apart, therefore, from treaty, rules of law affecting the relationships
between the parties in the present case can arise only from international
custom or the general principles of law recognized by civilized nations. CHAPTER IV
THE MANDATORY'SPROCEDURALOBLIGATIONS
A. lntroductory
r. The main aspect of the Mandate to be examined, is that concern
ing the Mandatory's procedural obligations, in other words, those obli
gations relating to administrative supervision of Mandatory administra
tion by organs of the League of Nations. The purpose of the enquiry·
isto ascertain-
(a) whether on a correct interpretation of the express provisions of
the Mandate instrument and the Covenant. this aspect was capable
of surviving the dissolution of the League of Nations; and, if not,
(b) whether an implied term in the Mandate itself provided the neces-
sary adaptation to an existence after dissolution of the League
of Nations; and, if not,
(c) whether an agreement, express or impliecl, making such provision,
was entered into during the period of the foundation of the United
Nations Organization and the dissolution of the League, or there
after; and. if not,
(d) whether some objective legal principle effected some change in the
Mandate enabling this aspect to operate after the dissolution of
the League.
B. History, Nature and Meaning of Mandatory's Procedural Obligations
2. Although, as submitted above 1, the authors of the Covenant did
not intend any close or technical analogy with municipal law institu
tions of trust, tutelage and mandatum, the mandate system did provide
certain features of broad resemblance to those institutions. The resem
blance to trust and tutelage lay in the vesting in the Mandatories of
title and powers of administration, subject to conditions which involved
obligations to utilize the powers for the benefit and progress of under
developed peoples. The resemblance to mandatum was supplied by the
notion that the l\fandatories would, in the exercise of these civilizing
functions, act "as Mandatories on behalf of the League", and more
specifically by the provision requiring them to report to the Council of
the League relative to observance of their obligations in that regard.
3. In the history of the government and development of backward
countries and their inhabitants, this element of League supervision
provided for in the mandate system was an innovation generally re
cognized to be of great importance.
The application of the "sacred trust" and "tutelage" concepts in this
sphere was nothing new. Following on views expressed by earlier
writers 2,the colonial policies of western powers were, _asfrom the r8th
1 Vide Chap. III, para.13.
2 Vide Chowdhuri, R. N., International\fandates and Trusteeship Systems (1955),
pp. 16-18.n6 SOUTH WEST AFRICA
century, described by various statesmen as civilizing missions involving
duties of trusteeshlp and guardianship towards the colonies and their
inhabi tan ts 1.
These declarations were generally recognized to be of a moral charac
ter and as involving no consequences in international law. P. T. Furukaki
expressed the position thus:
"Heretofore certain powerful states of superior civilization have
attributed to themselves a civilizing mission among backward
peoples. France, for example, admits and practices the theory of
the colonization-tutelage. But this is a purely moral duty, volun
tarily accepted by the colonizing state as a politic means of justi
fying in the name of civilization the conquest and the administra
tion of colonial territories difficult to justify from the democratic
point of view. This duty has been envisaged as the consequence of the
suzerainty over the colony. lt allows sovereignty in its full integrity
to remain in the colonizing government whlch has to render account
2
to no one for its action ."
4- Towards the end of the 19th century, during the period of the so
called "scramble for Africa" on the part of colonial powers, varions
international conventions were entered into between them in relation
to, inter 'alia, the welfare of native peoples. The General Act of the
Berlin African Conference of 1885 provided in Article 9 thereof that
the slave trade was "forbidden" by "the principles of international law
as recognized by the signa.tory Powers" 3; and in regard to the area
known as the Conventional Basin of the Congo the powers undertook
towards each other not only to apply the "open door" principle but
also-
"... to watch over the preservation of the native tribes and to
care for the improvement of the conditions of their moral and
material well-bemg, and to help in suppressing slavery, and espe
cially the slave tracte 4".
Later international conferences, mainly at Berlin and Brussels, in
the years 1890, 1899, 1900, 1906, 1907 and 1912, resulted in the recog
nition as between the signatory powers of principles and rules rnlating
to abolition of slavery and the slave trade and to regulation of the
5
importation of arms and trade spirits into Africa •
Although it is in a sense correct to say that by these conventions
the welfare of backward peoples was rendered "a matter of international
concern" 6, there were as yet no sanctions to the conventions. As Bent
wich puts it:
1Chowdhuri, op. cit., pp. r8•22. Vide also Toussaint, C. E., The Trusteeship
System of the United Nations (1956), pp. 5-8; Hall, H. D., Mandates, Dependencies
and Trusteeship (1948), pp. 97-100; Eentwich, N.,The Mandates System (1930), p. 4,
2
Furukaki, P. T., "Nature juridique des mandats internationaux de la Société
des Nations", Bib. Un. (July-Dec. 1926), p. 385, as cited by Wright, op. cil., pp,
536•537.
3Hall, op. cit., p. 104.
• Article 6, General Act of the Berlin African Conference. Referred to in Hall,
op. cit.p. 104. .
5 Vide Hall, op. cit.pp. 102-ro4; Toussaint, op. cit.pp. 8-9; Chowdhuri, op. cit.,
pp. 20-22; Bentwich. op. cil., p5.
6 Toussaint, op. tit.p. 9. COUNTER-MEMORIAL OF SOUTH AFRICA IIJ
"The signatory Powers had no defined ineans of intervening if
things were done 'contrary to the convention; and, in fact, thev
did not interfere 1." •
According to commentators this weakness led to evasion and inade
quate observance of the conventions 2• Moreover, it gave rise to un
certainty as to the exact manner in which certain aspects of the con
ventions were to be viewed-more particularly whether, in providing
for native welfare in covenants as between civilized States, the con
ventions were to be regarded as giving rise to legal obligations in inter
national law or whether they resorted in the sphere of morality only.
5. The mandate system, whilst also containing provisions in accord
ance with the "sacred trust" and "tutelage" ideals, sought to overcome
this weakness and uncertainty by the introduction, in accordance with
the mandatum concept, of international accountability in the form of
League supervision. And thus it was that Wright commented:
"The distinctive feature of the system is undoubtedly the League's
supervision. The principles of trusteeship and tutelage have often
been avowed before and sometimes practised but only as self-limita
3
tions ."
And commentators generally are agreed that it was through the pro
vision for League supervision that the Mandatories' obligations in re
spect of the welfare of the mandated communities became "juristically
sanctioned" 4•
6. Although commentators frequently employ the broad descriptive
terms "League supervision" and "supervisory fonctions of the League",
such phraseology did not occur in the relevant provisions of Article
22 of the Covenant or of the Mandate instruments. These provisions
were as follows:
(a) Arti'cle22 (7) of the Covenant:
"J n cvery case of mandate, the Mandatory shall render to the
Council an annual report in reference to the territory committed to
its charge."
(b) Article 2 2 (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."
(c) Article 6 of the Mandate /or South West A/rica (and correspond-
ing provisions in other Mandate instruments): '
"The Mandatory shall make to the CoWlcil of the League of
Nations an annual report to the satisfaction of the Council, con
taining 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 specific provisions are further to be read in the light of:
(i) the provision in Article 22 (2) that the "tutelage" should be exer-
• Bel)twich, op.cit.,p. 5.
2 Vide Hall, op. cil.pp. 104-rn5.
3 Wright, op. cil.p. 64.
• Vide e.g., Furukaki,as cited by Wright, op. cil.p. 537; Bentwich, op. cit,p.5.n8 SOUTH WEST AFRICA
cised by advanced nations "as Mandatories on behalf of the League",
and
(ii) the Mandatories' undertakings (as recorded in the preamble of the
Mandate instruments) to exercise their Mandates "on behalf of the
League of Nations".
7. The "supervisory functions of the League" spoken of by com
mentators was a concept in essence derived from the obligation, im
posed upon the Mandatories by the above provisions, ta report with
reference to the respective territories and to the measures taken to carry
out the substantive obligations. The reports would (by implication)
regularly be considered by the Permanent Mandates Commission and
the Council of the League with a view to achieving and maintaining
observance of the Mandate::., if necessary by Council resolutions directed
to that end.
Moreover the Council, without express provision to that effect in the
Covenant or the mandate instruments, accepted that the consideration
of petitions regarding alleged grievances about observance of the Man
dates by the Mandatories would form part of its fonctions as the super
visory organ. And it laid down in that regard the rules of procedure
already referred to abo\'."C Briefly these involved that petitions from
inhabitants were to be forwarded through the respective Mandatories,
who could then at the same time furnish their comments, and that
petitions from other sources were to be addressed to the Chairman
of the Permanent Mandates Commission, who was to decide whether
they merited attention and, if so, to forward them to the Mandatory
concerned for comment.
Thus the regular consideration of reports and of petitions and the
1Iandatories' comments thereon, ,vith a view to securing observance of
the Mandates, constituted League supervision correlative to the Man
datories' obligation to report and account to the Council. Without the
imposition of this obligation on the Mandatories, there would be no
justification for an inference that the League Council was intended to
exercise a "supervisory function", or for speaking of any obligation to
submit to such supervision.
So, by contrast, Article 23 (b) of the Covenant of the League im
posed upon League Members the obligation "to secure just treatment of
the native inhabitants of terri tories under their control". But, in the
absence of any additional provisions requiring the Members affected by
Article 23 (b) to act in this respect as Mandatories on behalf of the
League, and to render reports to the League indicating the measures
taken to comply with the obligation undertaken in that sub-article,
nobody has ever suggestcd that the League was given a supervisory
fonction with reference to that obligation or that the Members in question
were obliged to submit to any such supervision.
It is evident, therefore, that the essence of League supervision or
the supervisory functions of the League was the Mandatories' obligation to
ref)ort and account to the Council of the League in respect of com
pliance with the substantive obligations pertaining to administiation
of the territories ..and protection and development of the inhabitants.
The further obligation or fonction of the Mandatoiie~ relative to super
vision, viz., the forwarding of petition~, was purely subsidiary and dc-
1 Vide Chap. II, para'.W.supra. COUNTER-MEMORIAL OF SOUTH AFRICA n9
pendent on the fact that the Council was the supervisory organ-which
fact in turn depended on the obligation to report and account.
8. By its content the obligation required the Mandatories to report
and account to a specific supervisory body, constituted and functioning
undcr the provisions of a particular international convention. lt was
not an obligation to submit generally to "international supervision"
or to suRervision by the "international community" or "the Family of
Nations ', or "the civilized nations of the world" or the like. It was an
obligation to report and account to a specific organ of a specific organ
ization of certain of the nations of the world, viz., the Council of the
League of Nations.
The implications of this feature are of major importance. The League
was constituted by a Covenant, the provisions of which were known to
the Mandatories, and to which all Mandatories were, initially, signa
tories. The Constitution of the Council-and the manner in which it was
1
to function were laid down in the Covenant. As has been noted above ,
the provisions of the Covenant in that regard required, inter alia,
unanimity, as a general rule, for Council decisions (Art. 5), and an
invitation to any Member of the League not represented on the Coun
cil to be represented at any meeting during the consideration of matters
specially affecting the interests of that Member (Art. 4). The Council
would in regard to Mandates be assisted and advised by a permanent
Commission (Art. 22 {9)). It was to supervision through machinery
governed, inter alia, by these provisions of the Covenant, and to no
other, that the Mandatories consented to submit.
9. The practical importance of the fact that the obligation related to
specific supervisory machinery, is illustrated by certain statements made
by delegates at the Paris Peace Conference. It will be recalled 2that
on 30 January 1919, when the compromise arrangement regarding
the mandate system was arrived at, the South African Prime Minister,
General Louis Botha, stated that:
"Personally he felt very strongly about the question of German
South-West Africa. He thought that it differed entirely from any
question that they had to decide in this conference, but he would
be prepared to say that he was a supporter of the document handed
in that morning, because he knew that, ij the iâea fructified. the
League of Nations would consist mostly of the same people who were
present there that day, who understood the position and who would
not make it impossible for any mandatory to govern the country. That
was why he said he would accept it3." (Italics added.)
To this explanation by General Botha, added significance is lent by
earlier statements of the British Prime Minister, Mr. Lloyd George,
and President Wilson of the United States of America, in the Council
of Ten on 28 January 19r9, as follows:
"Mr. Lloyd George said that he agreed with M. Clemenceau that
if the League of Nations were made an executive for purposes of
governing, and charged with fonctions which it would be unable to
1 Vide Chap. II,pa.ra.18.
2 /bid.,para.6.
3 For. Rel. U.S.: The Paris Peace Con/erence, I9I9, Vol. Ipp. 801-802.120 SOUTH WEST AFRICA
perform, itwould be destroyed from the beginning. But he had not so
interpreted the mandatory principle when he had accepted it.
President Wilson said he too had not so interpreted it.
Mr. Lloyd George, continuing, said that he regarded the system
merely as a general trusteeship upon defined conditions. Only when
those conditions were scandalously abused would the League of
Nations have the right to interfere and to call on the mandatory
for an explanation. For instance, should a mandatory allow foui
liquor to swamp the territories entrusted to it, the League of
Nations would have the right to insist on a remedy of theabuse 1."
10. The above contemplation of a conservative approach to the
possibility of League interference with Mandatory govemment, became
a reality upon the establishment of the League. The report by M.
Hymans, unanimously adopted by the Council of the League on 5
August 1920 2, inciuded the following passage:
"The Annual Report stipulated for in Article 7 should certainly
include a statement as to the whole moral and material situation of
the peoples under the Mandate. It is clear, therefore, that the
Council also should examine the question of the whole administra
tion. In this matter the Coimcil will obviously have to display extreme
prudence so that the exercise of its right of control should not provoke
any justifiable complaints, and thi,s increase the difficulties of the task
undertaken by the Mandatory Power 3." {Italics added.)
The Permanent Mandates Commission was constituted with a view
specially to securing an impartial and non-political approach to the
exercise of the supervisory functions. Reference has been made above
to the independence and the individual merit of the members of the
Commission, and to their expressed endeavour to exercise their authority,
"... Jessas judges from whom critical pronouncements are expected,
than as collaborators who are resolved to devote their experience
and their energies to a joint endeavour 4".
The dual fonction of supervision and co-operation was again stressed
in later reports 5, and observed in practice 6•
The Council of the League seldom took any action in regard to
Mandates supervision save on the basis of the Commission's advice,
and usually accepted it when given; resolutions were tactfully worded
7
as suggestions or invitations to l\fandatories ; and due to the con
siderable representation of Mandatory Powers on the Council, it was
generally sympathetic to the Mandatories' point of view 8•
Thus the agreed supervisory machinery was in fact very carefully
checked and balanced so as to render unlikely any injurious, biased or
unfair interference with Mandatory government, and, indeed, as was
then apparently considered to be in the best interests of the inhabitants
1
For. Rel. U.S., op. cil., pp769-770.
• Vide Chap. II, para. 13, sup.,a.
3 L. _ofN., 0.J., 1920 (No. 6), p. 340.
• lb~d., 1921 (Nos. 10-12), p. u25. Vide Chap. 11,para. 20, supra.
5 Vide P.M.C. Jilin., VIII. p. 200: Wright, op. cit.• pp.196-197.
6 Vide Wright. op. cit., pp.199-200; Hall, op. cit., p209,
7Wright, op. cit., p. 128.
8 Ibid., pp.87-90. COUNTER-MEMORIAL OF SOUTH AFRICA 121
of mandated territories, so as to contain the minimum of political
element and a maximum of independent expert approach.
11. In the above circumstances, the wording of the obligation to
report and account as relating to a specific supervisory authority and
no other, was quite evidently not a matter of mere form or technicality,
but one of basic practical importance. As a matter of interpretation
there can therefore be no doubt that the parties never intended or con
templated any other supervisory authority than the Council of the
League, assisted by the Permanent Mandates Commission.
Since the principle of contemporaneity 1ould have to be applied in
interpreting the provisions of the Mandate ,the question may be posed
whether any interpretation could reasonably be given to the Mandate
which would have entailed any obligation on the Mandatory to submit
during the lifetime of the League to supervision by any other inter
national organization or any other organ of the League as regards per
formance of its functions under the Mandate. It seems self-evident that
the answer must be in the negative. If, for example, a group of Nations
which did not join the League had formed an organization of their
own, with objectives similar to those of the League and with organs
capable of exercising a supervisory function in regard to the government
of mandated territories, it could surely not have becn contended that
the Mandatories, having agrccd to submit to "international supervision"
by League organs, must for that reason be regarded as obliged to sub
mit to "international supervision" by some organ of the parallel organ
ization. Such a contention would seek to attribute to the Mandatories
an obligation to which they had never agrecd; and its untcnability
would become the more manifest if the other form of supervision
should be lacking in the very qualities which had made the specific
League supervision acceptable to the Mandatories and had probably
induced them to agree thereto 2•
Similarly it could not have been contended that the Mandatories
would, without fresh consent on their part, be obliged to submit to
"international supervision" by some other international organization in
fact established and having for its members largely the same States as
the League of Nations-such as, for instance, the International Labour
Organisation. Again such a contention would seek to attribute to the
Mandatories an obligation substantially different !rom that agreed to
by them in Article 22 of the Covcnant and the mandate instruments.
12. Even within the League of Nations organization, an alteration
in the supervisory machinery provided for in the Covenant could not
be imposed upon the Mandatories without their consent-e.g., an
alteration transferring the supervision from the Council to the Assembly,
or providing that the Council could in matters of Mandate supervision
arrive at valid decisions by a simple majority or by a two-thirds vote.
For again such an alteration would seek to impose upon the Mandat
ories an obligation of a content different !rom that agreed to by them
m the Covenant and the mandate instruments. Article 26 of the Cove
nant did provide for amendments to the Covenant, through ratification
1
2 Vide Chap. III, para.23,supra.
This argument is therefornot merely a technicalone. In \agie and fairness,
similar considerationapply a fortiori to those which in municipal law prevent a
master from ceding a service contract without the servant's consent.I22 SOUTH WEST AFRICA
by the Members whose representatives composed the Council and a
majority of the Members whose representatives composed the Assembly:
but it proceeded to provide that no such amendment would bind a
Member signifying dissent therefrom, although the dissentient would
then cease to be a Member of the League. At worst, therefore, a
Mandatory refusing to agree to an alteration in supervisory machinery
could Jose its membership in the League, but the alteration could not
be rendered binding upon it as a Mandatory without its consent
given either expressly, or tacitly through acquiescence without dissent
in a Covenant amendment in terms of Article 26.
r3. As a matter of interpretation, it is therefore submitted that there
cannot possibly be any warrant for reading Respondent's duty to submit
to supervision by the Council of the League as meaning supervision by
any other international organization.
C. Whether an Implied Term Can Be Read into the Mandate
Instrument
14. The further question then arises as to whether there can be read
into the mandate instrument an implied term which could have had the
effect of preventing the lapse of the Mandatory's procedural obligations
on the dissolution of the League of Nations.
Respondent is loath to devote extensive consideration to this aspect
since it appears somewhat academic. The Court in the 1950 Advisory
Opinion apparently did not rely on any such implied term, as will be
pointed out hereunder • Nor did Applicants in their Memorials. They
did indeed attempt some such basis in their Observations on the Pre
liminary Objections, referring to an "automatic succession" 2 or "doc
3
trine of succession" whereby the United Nations allegedly succeeded
to the supervisory fonctions of the League of Nations. Although Appli
cants did not specifically indicate the legal origin of this alleged succes
sion, it did appear from the development of their argument at 1, pages
442 to 443 and pages 443 to 446 '. that they probably had in mind some
term to be implied in the Mandate itself. This appears, inter alia, from
their reliance 5 on the so-called principle of effectiveness, which was said
to be applicable in view of the alleged essentiality of international super
vision as an element of the Mandate. As pointed out earlier 6, effectiveness
may be used either to assign a meaning to an ambiguous phrase (which
hardly arises in the present case) or as one of the factors from which
a term may be implicd. However, after this "automatic succession"
argument had been analysed and dealt with by Respondent in its
Oral Statement', Applicants refrained from attempting to support it,
or even from raising it at ail, in the Oral Proceedings, and no member
8
of the Court applied it. Judge van Wyk dealt with it only to reject it •
2• Vide paras ...l3-48, infra.
3 Vide I, p. 429.
4 Ibid., p. 443.
Vide also p. 481.
6 Ibid.,pp. 443-446.
Vide Chap. 111, para. 27, supra.
7 Oral Proccedings, 5 Oct. 1962 (morning) ..
8 South West _Africa, Preliminary Obfections,Judgment, I.C.J. Reports r962,
pp. 605 fi. COUNTER-1\IEMORIAL OF SOUTH AFRICA 123
Nevertheless, since the possibility of an implied term arises also in
respect of other aspects of the Mandate, Respondent proposes dealing
with it.
15. Any implication of such a term in the Mandate presupposes that
the parties in 1920 intended that the supervisory functions of the League
would not necessarily have to be exercised by the League itself, but
could, in the event of its dissolution, be exercised by some other appro
priate body. And the so-called essentiality of international supervision 1,
could likcwise have been relevant in this regard only if the authors
of the Mandate contemplated the possibility that the organs of super
vision actually provided by them, would not endure. It seems clear,
however, that in 1920 nobody did in fact contemplate the possibility
of the future dissolution of the League, or the creation of any other
international body to take its place. This seems to be generally accepted.
Thus. Judgc Bustamante states in his separate opinion on the Pre
liminary Objections:
"Obviously the provisions of the Covenant which had instituted
the international Mandates System did not envisage the possibility
of the dissolution of the League of Nations and did not foresee
its possible effects on the Mandate agreements in force 2."
J udge Jessup refers in his separate opinion to the League system as
"a system which it was fondly hoped in 1919 would become universal" •
In their joint dissenting opinion, Judges Spender and Fitzmaurice
express the view that it is "evident that those concerned did not foresee,
and would have refused to contemplate, a possible break-up of the
League" 4.
Judge van Wyk states in his dissenting opinion as follows:
"The tmth is that the possibility of the dissolution of the League
was not contemplated when the Covenant was agreed to or when the
Mandate Dcclaration was made ... 5"
And Applicants themselves make the following statement in their
Observations on the Preliminary Objections:
"lt was, of course, hoped and expected that the organs created
after World War I to represent the international community would
endure 6."
16. Even if one were to assume, contrary to the generally accepted
facts, that the authors of the Mandate did contemplate the possibility
of a future dissolution of the League. it is still clear that no tacit intent
can be imputed to them which would have the effect of the substitution
of a new supervisory organ, howcver essential they may have considered
7
international supervision to be. lt bas bcen pointed out abovc that
certain of the Mandatories could only with great difficulty be prevailed
upon to accept the mandate system at ail in substitution for contem-
1 Vide Applicants' contention in their Observations, as referred to in para. 14,
s11pra.
2 South West A/rica, Preliminary Objections, Judgmenl,I.C.J. RP-porls 1962, p. 36i.
3 fbid.,p.412 .
• Jbid.,p. 514.
' Ibid.,p. 601.
6 Vide I, p. 443.
7 Vide Chap. II. paras. 2-9, mpra.124 SOUTH WEST AFRICA
plated annexation, that a special compromise formula had to be devised
in order to meet their difficulties, and that their acceptance thereof, with
rcluctance, was strongly influenced by the composition and nature of
the supervisory organs. lt is 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, proce
dure and attitude of which were ex hypothesi unknown to !hem. This
becomes the more apparent if one adds the considerations that the
circumstances whereunder the League would be dissolved would in the
nature of things be unknown and unpredictable in 1920, and that the
authors of the 1\.fandate made express provision in Article 7 thereof
for its future amendment. Surely had the matter been raised, the reac
tion of at least some of the prospective Mandatories would have been
that the malter was to be left for further agreement in pursuance of the
amendment provisions, in the light of the as yet unknown circumstances
that might apply at the time of postulated dissolution of the League.
17. It seems clear, therefore, that no such implied agreement could
possibly have been concluded. Further confirmation for this conclusion
is found in the tact that no State has ever alleged the existence of such
an implied agreement. During the discussions concerning the future of
the mandates by the founders of the United Nations in 1945-1946 and by
the Members of the League at its final session in April 1946, there
was ample opportunity and every incentive for representatives to refer
to such an agreement, if one existed. No such reference was made.
Again in the discussions during the years 1946-1949 in the varions organs
of the United Nations, concerning the continued existence of the Man
date 1, no suggestion was made of any implied agreement concluded at
the time of the creation2of the Mandate, providing for future succession
of supervisory organs •
18. Rcspondent submits therefore that, likewise as regards interpre
tation of its express provisions 3,there was nothing in the Mandate or its
surrounding circumstances which would, by way of an implied term,
provide a warrant for rejecting the prima facie conclusion that the
Mandatory's obligation to report and account, together with the sub
sidiary function of forwarding petitions, lapsed on dissolution of the
League.
D. Whether an Agreement, Express or Implied, Was Entered into during
the Years 1945-1946 or thereafter
I. GENERAL
19. The above conclusion leaves the further questions, namely
whether the procedural obligations under consideration were adapted
either by agreement during the years 1945-1946 or thereafter, or by the
operation of some objective Rule of Law, to the change of circum
stances resulting !rom the dissolution of the League of Nations.
1
2 Vide Chap. II, paras. 56-60.Videalso paras. 38-42infra.
See generally in regard to this tapie, the dissenting opinion of Judge"'yk
in South West Africa, Preliminary Ob-jutions, judgment,I.C.J. Reports z962, pp.
603-6rn.
Vide para. 13,supra, COUNTER-MEMORIAL OF SOUTH AFRICA rzs
In their Memorials, Applicants in effect contend that the obligations
"continue" in force in modified form, viz., as obligations to report and
account and forward petitions to the General Assembly of the United
Nations, which must for the purposes of the said obligations be regarded
as the new supcrvisory authority 1•
Applicants rest their case in this regard entirely on the majority
Advisory Opinion of 1950, and ask for reaffirmation thereof 2•
Since, in Respondent's submission, the Court in its 1950 Advisory
Opinion reached its conclusion on the basis of the events during 1945-
1946, Respondent will, while dcaling with the question whether any
express or implied agreement was reached during that period, at the
same time consider the correctness of the 1950 Advisory Opinion in the
respect under discussion.
zo. Respondent contends respectfully that the gencral considerations
which normally operate in favour of affirmation of a previous advisory
opinion, are in this case outweighed by certain special considerations
to the contrary.
The first and foremost of these is that vital factual information was
not placed before the Court for the purposes of its Advisory Opinion
in 1950. The information in question casts clear light on the real intent
involved in the final resolution by the Assembly of the Lcague of
Nations on 18 April 1946, regarding Mandates, and also on the cor
responding general intent and undcrstanding on the part of the Mem
bers of the United Nations at the time of its formation and during the
early years of its existence. Knowledge on the Court's part of the facts
in question would, in Respondent's submission, almost certainly have
led to a conclusion contrary to that arrived at in the majority opinion.
The information and its significance will be dealt with below 3•
Respondent must also point out, with respect, that there were in any
event two minority opinions on this question. In the critical comment
of writers on international law-which may also have been based on
fuller information regarding the relevant facts than the Court had at
its disposai in 1950-the weight of opinion appears to favour the
reasonmg and the conclusions arrived at in tlùs regard in the minority
opinions.
Furthermore, in the Judgment and opinions on the Preliminary
Objections, four members of the Court held that Respondent's procedural
obligations had lapsed on the dissolution of the League, and although
the other II members left the question open, seven adopted reasoning
which was to a greater or lesser extent inconsistent with the survival
of these obligations 4•
In all the circumstances a de novo and thorough consideration of
the whole question seems essential.
21. It will be recalled that the United Nations Charter was drafted
at San Francisco during the period· 25 April to 25 June 1945, and came
into force on 24 October 1945-i.e., some six months before the League
5
of Nations was dissolved • As was indicated above, the United Nations
' Virfe Applicants'Submission Xo. 2 (1, p. 197), read wîth [, pp. 52, 53, 95-103.
2 Vide l\lemorialsChap. IV.
3 Vide paras. 48-51, infra, and earlier passages there referred to.
• Vide paras. 55-69, infra.
5 Vide Chap. 11, para. 29, supra.126 SOUTH WEST AFRICA
was a new international organization which had for its l\lembers some,
but not all, of the Members of the League of Nations at that lime,
plus some States that were not then, and a large number that had never
been, Members of the League 1• Although in many respects it adopted
principles and objectives identical or similar to those of the League of
Nations, it was not a successor in law to the League; indeed two of
its major founder Members were known to be strongly averse to succes
sion in law 1. After the Charter and the new organization had com
menced to fonction, and upon dissolution of the League, certain League
assets were taken over by the United Nations and certain League
activities were "assumed" and continued by it; but this was effected
by special agreement and arrangements pertaining to those assets and
activities, and again in language which intentionally avoided any
impression of succession in law 2.
ln providing for the establishment of a trusteeship system which
would, in a broad sense, correspond to the mandate system of the League
of Nations, the United Nations Charter created supervisory machinery
which differed very materially from that which had operated under
the Covenant in respect of Mandates. ln the trusteeship system the
supervision of first instance would not be by a commission of inde
pendent experts, but by a Trusteeship Council consisting of govern
mental representatives of member States 3•And the ultimate supervisory
authority would not be a Council in which Mandatory Powers exercised
strong influence and in which a unanimity rule prevailed, but ~ither
the General Assembly of the United Nations 4, which could arnve at
decisions by a bare majority, or, on important questions, by ~ two
thirds majority 5, or the Security Council in the case of trusteesh1p over
"strategic areas" 6, in which event decisions could be taken by seven
affirmative votes including those of the five permanent members 7out
of a total of II 8.
From the reasoning set out in paragraphs 2 to 13 above, it follows
that no Mandatory could, by reason only of its agreement in 1920 to
report and account to, and thus to submit to the supervision of, the
Council of the League of Nations, now be held obliged to report and
account to, and submit to the supervision of, the United Nation~ or
any of its organs. The content of the latter obligation would be materially
di!Jerent, in sttbstance as well as in /orm, from that agreed to in 1920
by the Mandatories; and for this reason alone it follows that a Mandatory
could only have become bound to such an obligation by fresh agreement
and consent thereto.
22. The question, therefore, whether Respondent is obliged to report
and account to, and submit to the supervision of, the General Assernbly
of the United Nations, in essence resolves itself into an enquiry whether
Re~pondent by any binding juristic act has consented to such an obli
gation.
1
2 Vide Chap. II, para. 30.
Ibid., paras. 33-34, 37, 39-40.
4 Art. 86 of the Charter.
Arts. 85, 87-89 of the Charter.
5 Ibid., Art.18.
6 Ibid., Art. 83.
1 Ibid., Art. 27 (3).
8 Ibid., Art.23. COUNTER-MEMORIAL OF SOUTH AFRICA I27
Although the enquiry as thus posed essentially concerns Respondent's
consent to an obligation as postulated, it must of necessity also have
reference to another aspect, viz., with whom Respondent agreed to sub
mit to such an obligation (if any). (The majority advisory opinion
of r950 does not expressly refer to this aspect of the question.)
The mandate instrument derived its legal effect either from inter
national agreement, or from a Leaguc resolution in terms of Article
22 (8) of the Covenant 1• Whichevcr of these alternatives should be
correct, it seems evident that the international persons, other than the
Mandatory, who were intended to derive rights or legal interests from
the mandates were the League of Nations and/or the Members of the
League-at any rate primarily 2•One would therefore prima jacie ex
pect the League and/or its Members to be parties to an agreement,
if any, rendering a Mandatory obliged to report and account to a new
supervisory authority. And if that new supervisory authority were to
be an organ of the United Nations, it seems that the United Nations
and/or its Members would necessarily have had to be parties to such
an agreement.
For all practical purposes the enquiry is therefore directed towards
ascertaining whether Respondent at any time bound itself by agree
ment, either with the Members of the League at the time of its dis
solution (directly or via the League as representing them), or with the
United Nations and/or its Members, or with both these groups, to an·
obligation as postulated. Such an agreement could conceivably have
been either part and parcel of general multipartite conventions con
cerning the formation of the United Nations and/or the dissolution of
the League, or special as between Respondent and the others who
could conceivably have been parties thereto as aforestated.
Il. THE UNITED NATIONS CHARTER
23. There could be no warrant for any suggestion that the provisions
of the Charter of the United Nations by themselves rendered Respon
dent obliged to the United Nations or the other Members thereof to
report and account to, or to be subject to the supervision of, any organ
of the United Nations with regard to performance of its functions under
the Mandate for South West Africa. In this respect there appears to
have been general agreement in the Advisory Opinion of 1950. The
majority opinion particularly emphasized that:
"... the Charter has contemplated and regulated only a single
system, the International Trusteeship System. It didnot contemplate
3
or regulate a co-existing Mandates System ."
The whole of the portion of the Opinion in which this stateme~t
occurred (answer to question (b)) was concurred in by Judge McNair
and Judge Read 4 ;and the particular statement was agreed to by Judge
' Vide Chap. JII, para. 18 (a), supra, and Chap. V, Part B, paras. 33-47, infra.
2 Vide Chap. V, Part B, paras. 48-67, infra, where Respondesubmits that these
were the only internationapersons who could have derived such rights or interests:
for presentpurposes, however, the point is immaterial.
3 International Status of South-West Africa, Advisory Opinion, I.C.J. Reports z950,
p. 140.
• Ibid., pp. 146 and 164 rcspectively.128 SOUTH WEST AFRICA
1 2
de Visscher , Judge Krylov ,and apparently also Judges Zorièiéand
Badawi Pasha (who concurred in the dissenting opinion of Judge de
Visscher) 3• It is borne out entirely on reference to the Charter. The
provisions of the Charter make no mention of anything pe1taining to
supervision in regard to .Mandates. They do make provision for super
vision of administration undcr the trusteeship system, but render it
clear that this would apply only to cases in respect of which trustee
ship agreements are entered into '· Clearly they impose no obligation
upon any Mandatory to enter into a trusteeship agreement, as was
(with respect, correctly) held by the majority of Judges in the Advisory
Ùpinion in 1950. In any event Respondent had at the San Francisco
Conference, when the Charter was being drafted, rendered clear and
explicit that it did not intend to place South West Africa under United
Nations Trusteeship or to be a party to any other arrangement involving
commitment to the United Nations •
In the circumstances, it is manifest that, by agreement to the Char
ter, Respondent did not agree to any United Nations supervision of
the performance of its functions under the Mandate. Furthcrmore, inas
much as the Charter provided for supervisory machinery only in res
pect of trusteeship agreements voluntarily entered into, there wollid
have had to be some further appropriate arrangement, in amplification
or possibly even amendment of the Charter, if United Nations super
vision was to be brought about regarding any .Mandate or Mandates not
converted into trusteeship.
24. Notwithstanding the above, Applicants attempted in their Oral
Statement on Respondent's Preliminary Objections to base an argu
ment on Article 80, paragraph r, of the Charter, as, in their contention,
it had been intèrpreted and applied by the Court in the 1950 Advisory
Opinion. Article 80, paragraph r, reads as follows:
"Except as may be agreed upon in individual trusteeship agree
ments, made under Articles 77, 79 and Sr, placing cach territory
under the trusteeship system, and until such agreements have been
concluded, nothing in this Chapter shall be construed in or of itself
to alter in any manner the rights whatsoever of any States or 3:ny
peoples or the terms of existing international instruments to wh1ch
Members of the United Nations may respectively be parties."
Applicants' submissions regarding this Article appear in the Oral Pro
ceedings of r6 and 17 October 1962. The effect of their submissions
is that the Court in the 1950 Advisory Opinion interpreted this Article
as having been "designed to conserve ait rights of peoples of Mandat6d
territories to intèrnational supervision and judicial protection" ••
In Respondent's submission, the Court in 1950 gave no such mter-
pretation to Article 80 7• '
The Court, in its Judgment on the Preliminary Objections, did not·
accept Applicant's argument relating to Article 80 and it is conse-
1
2 International Status of South-West Africa, O'/Jc.ip. 186.
Ibid.,p.191.
3 Ibid., p. 145.
i Arts. 76, 77 and 79 of the Charter.
' Vide Chap. II, paras. 31-32.
6 Oral Proceedings,17 Oct. 1962 (morning).
7 Vide para. 46, infra. COUNTER-!IIEMOR[AL OF SOUTH AFR[CA 129
quently not necessa.ry to deal with it in dctail. In Respondent's respectful
submission, the untenability of tlùs argument appears clearly from the
following footnote to the joint dissenting opinion of Judges Spender
and Fitzmaurice, the reasoning of which, although it deals more parti
cularly with the suggested effect of Article 80 (r) on Article 7 of the
Mandate, applies also to its effect on Article 6: . .
"It has however been sought to call it [i.e., Article 80 (r)] in
aid as follows: the Article, it is said, 'conserved' the rights of States:
one of these rights was that stated in Article 7 of the Mandate
instrument; therefore the right survived the League dissolution
until the mandated territory was brought under trusteeship.
The argument is not only inherently unsound, it ignores the
words of Article 80 (r). This Article is clearly an interpretation
clause, commonly called :isaving clause, of a type frequently to be
found in legislative or treaty instruments, designed to prevcnt
Statute or Treaty provisions being interpreted so as to operate
beyond their intendment.
Such a clause does not, except in a loose and quite indefinite
sense, 'conserve' any rights. Itprevents the operation of the Statute
or Treaty from affecting them (whatever they are and whatever
their content) except as provided by the Statute or Treaty. Article
80 (1) does not maintain or stabilize rights as they existed at the
date of the Charter coming into operation, nor does it insure the
continuance of those rights or increase or diminish them. It leaves
them unaffected by Chapter XII of the Charter.
What Article 80 (r) does not say is as important as what it
does say. It does not say that rights shall continue. It does not
provide that these rights shall not thereafter, until trusteeship
.agreements have been concluded, be subject to the operation of
law, or that they shall not terminate or be extinguished by effiuxion
of time, failure of purpose, impossibility of performance or for any
other reason. It does not say these rights shall not be altered or
be subject to alteration even by normal legal processes.
It is evident that the purpose of Article 80 (I} was quite different
to what has been contended and does not lend itself by any rational
method of interpretation to support the contention advanced. The
sole purpose of the Article was to prevent any provision of Chapter
XII of the Charter being construed so as to alter existing rights
prior to a certain event l ."
Ill. UNITED NATWNS RESOLUTIONS OF jANUARY-FEBRUARY 1946
PERTAINlNG TO AssUMPTION OF CERTAIN LEAGUE FONCTIONS AND
ESTABLISHMENT OF THE TRUSTEESH[P SYSTEM
25. These resolutions and. their history, as dealt with above 2,in the
first place clearly demonstrate that the United Nations did not consider
itselfto be an automatic successor in law to any League fonctions, and
consequently that in•its contemplation the assumption and continuation
1
South West Africa, Preliminary 0/ijectionsJudgment, l.C.J. Reports r962,
p. 516, footnote1. Vid~ also disscntinopinion of Judge van Wyk at pp. 61.5ff. and
para. 53 (b), (c) and (d), infra.
2 Vide Chap. II, paras. 33-35, supra.130 SOUTH WEST AFRICA
of any League function by it would have to be a matter of active
arrangement. Indeed, in contrast with assets, which were to be "transfer
red" in terms of the mutually adopted "common plan" 1 the earlier
idea of a "transfer" of certain functions and activities was abandoned
in faveur of one of "assumption" by United Nations organs of certain
functions and powers 1•
26. The second feature of importance is that in resolution XIV as
2
finally adopted by the General Assembly on 12 February 1946 , the
statement of general willingness to ensure the continued exercise of
League functions was carefully limited to /unctions of a non-politicat
character 3• This would obviously not include the function of super
vision regarding Mandates. The only portion of the resolution under
which such function could possibly !ail would be Part I, 3, C which
read as follows:
"C. Functions and Powers under Treaties, International Conven
tions, Agreements and Other Instruments Having a Politicat Character
The General Assembly will itself examine, or will submit to the
appropriate organ of the United Nations, any request !rom the
parties that the United Nations should assume the exercise of
functions or powers entrusted to the League of Nations by treaties,
international conventions, agreements and other instruments having
a political charactcr '."
In other words, for the assurnption of a supervisory fonction regarding
mandates, the procedure envisaged by the resolution would involve
a "request !rom the parties" to, or legally interested in, the respective
Mandates, and a decision accedingto the request by the General Assembly
or other United Nations organ considered to be the appropriate one.
27. However, even in so far as the said Part I, 3, C of resolution
XIV supplied a method whereby it might have been possible, at the
initiative of the parties to the Mandates themselves, to effect an assump
tion of supervisory functions in respect of Mandates by some United
Nations organ, it is apparent from its history that it was not designed
for this purpose at all-at any rate as far as its proposers were con
cerned. For it will be recalled that the resolution was based on a re
commendation of the United Nations Preparatory Commission, which 5
in turn had considered a prior repurt from its Executive Committee •
The relevant portion of the Executive Committee's report, had stated.
inter atia, that-
"Since the questions arising !rom the winding up of the Mandate
system are dealt with in Part III, Chapter IV, no recommendation on
this subject is included here 6."
"Part III, Chapter IV" as there referred to formed part of the history
leading eventually to resolution XI, adopted at the same Session of
2 Vide Chap. II, para. 34.
C.A. Resolution XIV (1), 12 Feb. 1946, in U.N. Doc. A/64, pp. 35-36; vide
Chap. II, para. 34 (c), supra.
3 Part I, para. 3, A and Bof the resolution.
4 U.N. Doc. A/64, p. 35; vide Chap. II, para. 34 (c), supra.
5 Vide Chap. Il, para. 34, supra.
6 Doc. PC/EX/JI3/Rev. I,12 Nov. 1945, p. IIO. COUNTER-MEMORIAL OF SOUTH AFRICA
r3r
the General Assembly, on 9 February 1946. The said "Part III, Chapter
lV" of the Executive Comrnittee's report dealt with the establishment
of the trusteeship system. It will be recalled that a recommendation
was made therein for the establishment of a Temporary Trusteeship
Committee, one of whose functions would be to-
"advise the General Assembly on any matters that might arise with
regard to the transfer to the United Nations of any functions and
1
responsibilities hitherto exercised under the Mandates System ".
The recommendation regarding establishment of the Temporary
Trusteeship Committee was, however, rejected by the Preparatory
Commission 2; and no other proposa! regarding investigation of, or
machinery for, the possible "transfer to" or "assumption by" the
United Nations "of any functions and responsibilities hitherto exercised
under the Mandates System", was substituted for the rejected proposai.
Resolution XI as adopted in effect merely urged expedition in the sub
mission of proposed trusteeship agreements by "the States administer
ing terri tories now held under Mandate 3' '.
28. In adopting resolution XI the Assembly knew beforehand that
such proposed agreements would not be submitted in respect of ail
mandated territories. Express reservations had been made by the South
African representative indicating an intention on the part of his Govern
ment ta refrain from placing South West Africa under United Nations
trustees4ip and ta seek recognition for incorporation thereof in the
Union • From reservations made by the representative of the United
Kingdom, ·the future of the Palestine Mandate was known to be un
certain 5• Furthermore, the Pacifie Islands under Japanese Mandate
were occupied by the United States and no decision had been corne
ta as ta their future.
In addition, the representatives of the United Kingdom and France
had indicated that their Governments' willingness ta place certain
mandated territories under United Nations trusteeship depended upon
their being able to obtain satisfactory terms 5•
That the Assembly was in fact aware that a number of States ad
ministering Mandates had no present intention of submitting trustee
ship agreements, appears indeed !rom the text of resolution XI,
especially the following:
"... wilh respect lo Chapters XII and XIII of the Charter, the General
Assembly:
3. Welcomes the declarations, made by certain States administering
territories now held under mandate, of an intention ta negotiate
trusteeship agreements in respect of some of those territories and, in
respect of Transjordan, to establish its inde_pendence.
· 4. Invites the States administering terr1tories now held under
mandate to undertake practical steps ... for the implementation of
Article 79 of the Charter 6." (ltalics added save for the heading and
the words "\Velcomes" and "Invites".)
1 Doc. PC/EX/113/Rev. I, 12 Nov. 1945, p. 56.
2 Vide Chap. II, para. 35 (c), supra.
3 Ibid., para. 35 (g).
4 Ibid., para. 35 {d} and (e).
5 Ibid., para35 {!).
6 U.N. Doc. Al64, p. 13. Vide also Chap. II, para. 35 (g), supra.132 SOUTH WEST AFIUCA
The references to "certain States" and "some of tltose territories" in
the first part of the resolution may partially have been inspired by
the absence of Japan (which was nota Member of the United Nations,
and not present at the Assembly) and the case of Transjordan, to which
referencc is made later in the resolution. Nevertheless in view of the
express reservations, inter alia, by South Africa, the resolution must
have been intended to refer thereto as well. In addition, the invitation
extended, in the second part of the resolution, to "the States adrninis
tering" mandates, to submit trustecship agreements, suggests that the
Gener_al Assembly realized full well that there was a class of Manda
tories which did not fall under the "certain States" which had made
declarations, but. which the General Assembly nevertheless hoped would
submit agreements 1•
29. In ail the circumstanccs, the silence on the part of the United
Nations in regard to supervision of Mandatory govcrnment is signi
ficant. Its Members were aware that time would elapse before the
coming into effect of the trusteeship system, and that there was no
certainty that ail mandatcd territories would end up as trust territories
(para. 28, supra). Yet no attempt was made to arrive at a general
arrangement either for interim supervision {after dissolution of the
League) regarding mandated territories until they should become trust
territories, or for any supervision at ail in respect of mandated terri
tories which might not become trust territories. The United Nations
made elaborate provision for the "assumption" of certain League
functions and powers, and for transfer to it of League assets, knowing,
however, that its resolution XIV in this regard was not designed for
supervisory functions in respect of Mandates (para. 27, supra). A
specific proposai envisaging investigation and rccommendation con
cerning possible "transfer" of "fonctions ... under the mandates sys
tem"· was rejected and nothing substituted for it (para. 27, supra}.
The inference seems inescapable that the omissions were deliberate.
It is highly unlikely that it would have been possible to achieve a
general arrangement applicable to all mandated territorics, in view of
the widely varying circumstances pertaining to them and the differing
intentions of the Mandatory Powers in regard to their future-with
the result that the matter perforce had to be left to special arrange
ment, if any, to be arrived at in each particular case.
However that might be, the contents and history of resolutions XI
and XIV clearly show that, at the time of their adoption, being shortly
prior to dissolution ofthe League of Nations:
(a) there had been no agreement express or implied between Re
spondent and the United Nations and/or its Members whereby Re
spondent consented to United Nations supervision regarding the
performance of its functions under the Mandate;
(b) the only provision made on the part of the United Nations where
by such agreement could possibly corne about, if at all, was that con
tained in Part I, 3, C of resolution XIV, envisaging a request there
for hy the interested parties and agreement thereto by a United
Nations organ; and
' Vide South West Africa, Preliminary Obiections, Judgment, l.C.]. Reports ,96ll,
pp. 537-538. COUNTER-MEMORIAL OF SOUTH :\FRICA 133
(c} in view of the repeated reservations made by Respondent, the
Members of the United Nations must have realized that the pros
pects of Respondent being a party to such a special request were
remote.
1V. RELEVANT LEAGUE OF NATIONS RESOLUTIONS DURING LAST SESSION
oF lTs AssEMBLY, 8 TO 18 APRIL 1946
30. The texts of the relevant resolutions that were adopted by the
League Assembly on 18 April 1946 are set out above 1•
As will appear from the Preamble of the resolution relating to assump
tion by the United Nations of League functions and powers arising
out of international agreements 2, the Assembly of the League had
"considered" the United Nations General Assembly resolution XIV of
r2 February 1946 on the same subject 3.The League resolution inquestion,
as did the one following upon it and set out above 4,specifically confined
itself to functions, powers and activities of a non-political character,
and contained provisions designed to facilitate assumption of such
fonctions, powers and activities by the United Nations m terms of its
resolution XIV; it remained silent in regard to functions and powers
arising out of international agreements of a political character, as dealt
with in Part I, 3, C of the United Nations resolution XIV. The inference
seems clear that the League Assembly considered that that was a matter
in regard to which it had no role to play, and which was to be left to the
ad hoc treatment envisaged by Part I, 3, C of United Nations resolution
XIV. In other words, the League Assembly clearly knew that the United
~ations wished each case involving political functions to be dealt with
separately, by way of a request by the interestcd parties to the United
Nations and consideration thereof by the United Nations General
Assembly or other appropriate organ; and if it contemplated or intended
transfer of such functions to the United Nations in any other manner,
it could be expected to have said so.
31. This was exactly what had been contemplated in the first draft
5
proposai by China concerning mandates • The second paragraph of
the draft invited the League Assembly to express the view that "the
League's fonction of supervising mandated territories should be trans
ferred to the United Nations in order to avoid a period of interregnum
in the supervision of the Mandatory regime". The third paragraph in
vited it to recommend submission of annual reports by the Mandatories
to the United Nations until the Trusteeship Council should be constituted.
Here, then, was a proposai involving a course of action differing from
that contemplated in Part I, 3, C of the United Nations General Asscmbly
resolution XIV: instead of separate consideration by United Nations
organs of separate requests from parties interested in particular Mandates,
the proposa! envisaged transfer to the United Nations of supervisory func
tions in respect of all M andated territories and submission to the United
Nations of reports by all Mandatories.
1 Vide Chap. II. paras. 3S-4r.
2 Ibid.,para. 39.
3 The League resolution erroneously refers to the date as16Feb. 1<)46.
• Vide Chap. II, para.40.
5 Vide Chap. Il, para.41 (c).134 SOUTH WEST AFRICA
lt seems quite clear that such a proposai could not have obtained
the unanimous support required for a League Assembly resolution.
By reason of the reservation stated by South Africa in regard to South
West Africa-being, in effect, that neither a mandate system nor a
trusteeship system should in future apply to the Territory-the Union
1
could not support the original Chinese proposai . Nor does it seem that
that proposa! could have received the support of the United Kingdom,
which, in tenus of the statement by its representative, reserved its
future intentions in regard to Palestine 2• Furthermore. the reservation
by the representative of Egypt was to the effect that Mandates would,
in bis Government's view, tenninate with the dissolution of the League,
and that Palestine must in any event be considered to have outgrown
3
the need for being governed under mandate or trusteeship : thus it
also seems most unlikely that Egypt could have supported the original
Chinese proposa!.
32. In the light of the above considerations, the significance of the
fact that the original Chinese draft was dropped after informal dis
cussions and replaced by an agreed draft, which was then unanimously
adopted, is self-evident. It will be observed that in paragraph 3 of the
resolution, as adopted4, the Assembly "recognizes" that on dissolution
of the League its functions with respect to mandated territories will
corne to an end, and it "notes" the existence in the Charter of the
United Nations of principles "corresponding to" those of Article 22
of the League Covenant: but it says nothing in regard to transfer to
the United Nations of the League's fonctions with respect to Man
dates, or of assurnption or continuation of such functions by the United
Nations. In paragraph 4 it expresses a contemplation of "other arrange
ments" that may be ''agreed between the United Nations and the
respective mandatory powers"; and as regards the interim period,
pending such agreement upon "other arrangements", it "takes note"
of the "expressed intentions" of those powers to continue-
"... to administer [the territories) for the well-being and develop
ment of the peoples concerned in accordance with the obligations
contained in the respective Mandates ... "5• (Italics added.)
ln ail the circumstances, the only inference that can be drawn is
that the omissions in the adopted resolution, as compared with the
original Chinese draft, were intentional. The author of that draft had
also envisaged an interim period, described by Dr. Liang on 9 April
1946, as follows: ". . . in view of the fact that the trusteeship council
of the United Nations has not yet been appointed and was not likely
6
to be set up for some time" , and described in the last paragraph of the 7
draft itself as "until the Trusteeship Councilshallhave beenconstituted" •
It was specifically in respect of this interim period that the author of
the original draft wished "to avoid a period of interregnum in the super-
1 Vide text of statement at Chap. II, para. 4r (b) (iisupra.
2 Vide Chap. IJ, para. 4r (b) (i)sufmi.
l Ibid., para. 4r(e), supra.
• Vide text at Chap. li.para. 41 (f),supra.
5 L. of N., O.]., Spec. Sup. No. r94. p. 58; Chap. II, para. 41 (c), supYa.
6 Ibid., p. 76; Chap. II, para. 4r (csupra.
7 L. of N'., 21st Assembly, 1st Cornrn., 2nd Meeting, provisional record; Chap.
II, para. 4r (c), supra. COUNTER-MEMORIAL OF SOUTH AFRICA :r35
vision of the Mandatory regime" 1, and consequently invited the Assem
bly (i) to express the view "that the League's functions of supervising
mandated territories should be transferred to the United Nations" 1,
and (ii)to recommend "that the mandatory powers ... shall continue
to submit annual reports to the United Nations" 1•
Instead, as indicated above, the adopted resolution in respect of
such interim period confined itself to stating that the Assembly "takes
note" of "expressed intentions" "to administer the territories" in a certain
manner. (ltalics added.)
33. That the representative of China was himself fully aware of the
significance of the contrast, appears from what he said upon introducing
2
the eventual agreed draft, on 12 April 1946 ,as compared with his earlier
speech on 9 April 1946 3. He emphasized (on 12 April) that the functions
of the League in respect of Mandates "were not transferred auto
matically" to the United Nations and that the Assembly "should
therefore take steps to secure the continued application of the prin
ciples of the mandates system". But instead of moving from this foun
dation to the earlier proposa! "recommending that the mandatory
powers should continue to submit annual reports ... to the United
Nations", he then stated that, as the Australian representative had
pointed out the previous day, the League "would wish to be assured"
as to the future of mandated territories. He referred to statements by
representatives of other Mandatory Powers, and described as "grati
fying" the fact that ail had "announced their intention to administer
the territories under their control in accordance with their obligations
under the mandate system until other arrangements were agreed upon".
His comment on the substance of the matter concluded that "it was to
be hoped" that "the principles of trnsteeship underlying the mandate
system" "would" be applied to the territories "in full" by "the future
arrangements to be made". ·
Clearly then, the conclusion is inescapable that th~re was in the final
result a. deliberate refrainment from attempting to secure a general
transfer to the United Nations of League supervisory functions in
respect of mandates not converted into trusteeship, and even from
attempting to secure a recommendation that reports should in respect
of such mandates be rendered to the United Nations.
34. In sum: The subject of possible United Nations supervision re
garding mandates not converted into trnsteeship had not been treated
as something generally understood so as to "go without saying", but
an express resolution to bring about such supervision had been sought,
by a proposer who later stressed that the League fonctions conceming
mandates "were not transferrcd automatically to the United Nations".
The obvious failure of the proposai to secure the necessary support for
an Assembly resolution thus rules out ail possible basis of inferring
general tacit intent to bring about such United Nations supervision. T~e
known absence of such intent is confirmed by the text of, and omis
sions in, the resolution actually adopted, and by the speech of its pro
poser.
1L. of N., 21st Assembly, rst Comm., 2nd Meeting, provisional record; Chap.
II, para. 4r c) , supra.
z Chap. II,para. 41 (d), supra.
1 Ibid., para.41 (c). SOUTH WEST AFRICA
The intention must have been to Ieave to such "other arrangements",
if any, as may be "agreed" in each case, the possibility of the assump
tion by the United Nations of supervisory powers in respect of mandates
not converted into trusteeship-in other words, to the ad hoc method
which was the only possibihty provided for by the United Nations
General Assembly in Part I,3, C of its resolution XIV of 12 February
1946.
35. The above conclusions are further confirmed by the fact that
none of the "expressed intentions" of Mandatory States referred to in
paragraph 4 of the resolution, included an intention to report under
their mandates to the United Nations pending such "other arrange
ments"; thev were confined to administration of the terri tories in ac
cordance with obligations regarding protection and promotion of the
well-being and development of the inhabitants, and certain of the state
ments clearly suggested that there would be no such reporting pending
the "other arrangements". Thus:
(a) the statement of the South African representative pointedly re
ferred to the "disappearance of those organs of the League con
cerned with the supervision of mandates, primarily the 1\fandates
Commission and the League Council 1, as something which would
"necessarily preclude complete compliance with the letter of the
Mandate" 1; and immediately before, he had stated an intention
of continued administration by the Union in accordance with the
obligations of the Mandate, for the advancement and promotion
of the interests of the inhabitants, "as she has done during the past
six years when meetings of the Mandates Commission could not
be held" 1 (and when reports were in fact not rendered).
(b) The Australian representative also stated, inter alia, that-
"After the dissolution of the League of Nations and the consequent
liquidation of the Permanent Mandates Commission, it will be impos
sibleta continue the mandates system in its entirety 2."(Italics added.)
He further intimated that for the interim, pending trusteeship, he
regarded Chapter XI of the Charter as being applicable, including the
limited obligation the_reunder (i.e.) Art. 73 (e)) to supply to the
United Nations, for information purposes, certain statistical and
other information of a technical nature 2• This necessarily excluded
contemplation of the more onerous obligation of reporting and
accounting as regards compliance with substantive Mandate obli
gations and thus submitting to supervision 3•
(c) The United Kingdom's intention was expressed as being "... to
continue to administer these territories in accordance with the
general principles of the existing mandates" 4. (Italics added.)
An interesting light is cast onthe meaningintended to beconveyed
by the italicized words in the above quotation, by the Report of
the Special Committee on Palestine, extracts from which are quoted
above 5•One passage reads as follows:
1 L. ofN., O.]., Spec. Sup. No. r94, p. 33; Chap. H, para. 41 (h) (ii)supra.
2 Ibid., p47; Chap. II, para. 41 (b) (ii)supra,
3 Vide para. 37 (b), infra.
• L. ofN., O.]., 5-pec.Sup.No. 194, p.28; Chap. II, para. 41 (b), supra.
5 Vide Chap. II, para. 59 (c),supra. COUNTER-MEMORIAL OF SOUTH AFRICA r37
"Following the Second World War, the establishment of the
United Nations in r945 and the dissolution of the League of
Nations the following year opened a new phase in the history of
the mandatory regime. The mandatory Power, in the absence of
the League and its Permanent Mandates Commission, had no
international authority to which itmight submit reports and generally
account for the exercise of its responsibilities in accordance with
the terms of the Mandate. Having this in mind, at the final session
of the League Assembly, the United Kingdom representativedeclared
that Palestine would be administered 'in accordance with the
generalprinciples' 1f the existing Mandate until 'fresh arrangements
had been reached' ." {ltalics added.)
This was a report by an II-nation committee, not by the United
Kingdom itself, but it seems most unlikely that this explanation could
have been given for the United Kingdom's statement had it not been
obtained at the statement's very source.
36. In view of the above, the conclusion is clear that the relevant
resolutions of the Assembly of the League of Nations at its last session
did not embody any agreement, either express or implied, between Re
spondent and the League and/or its Members, whereby Respondent
was rendered obliged to report or account to, or to submit to the super
vision of, any organ of the United Nations relative to performance
of its fonctions under the Mandate. On the contrary, the indications
point to a mutual undèrstanding that, pending "other arrangements"
which may be "agreed" upon between the United Nations and Re
spondent, there would be no such reporting or accounting or super
visory authority. Such "other arrangements" could potentially, as far
as the League resolution was concerned, cover a variety of possibili
ties, such as,
(a) recognition of a new status for the Territory, e.g., as was being
proposed by Respondent, or independence, or partition as in the
case of Palestine; or
(b) a Trusteeship agreement; or
(c) the "assumption" by the United Nations, in terms of Part I, 3,
C of its Assembly's resolution XIV of 12 February 1946, of super
vision regarding continued Mandatory administration of the Terri
tory in pursuance of a request to that end.
V. NEGOTIATIONS SUBSEQUENT TO DISSOLUTION OF THE LEAGUE
37. The evidence shows that subsequent events never led to any
agreement whereby Respondent was rendered obliged to submit to the
supervision of any United Nations organ.
(a) "Other arrangements", as contemplated by the resolution of the
last League Assembly, were never "agreed" upon between the
United Nations and Respondent. The United Nations was not
prepared to agree to an arrangement whereby recognition would
be given to incorporation of South West Africain the Union,.nor to
2
other proposais subsequently made •On the other hand, Respondent,
1 G.A., O.R., Second Sess., Sup. No. rr, Vol. I (A/364), pp. 26-27.
2 Vide Chap. II, paras. 43-46, 61 ff.138 SOUTH WEST AFRICA
for the reasons explained above, was not prepared to agree to trustee
ship for the Territory 1.And there never was, in terms of Part I,
3, C of the United Nations General Assembly's resolution XIV of
12 February 1946, any "request from the parties", or agreement
thereto by any United Nations organ, as to "assumption" by the
United Nations of supervisory fonctions regarding continued Man
datory administration of the Territory.
(b) Chapter II above 2, deals with the history of Respondent's under
taking, later withdrawn, to submit statistical and other information
such as mentioned in Article 73, paragraph (e), of the Charter.
Article 73 (e), where it applies as a matter of law, does not involve
an obligation to submit to "supervision". The whole of Article 73
comprises a counterpart in amplified form of Article 23 (b) of the
League Covenant, in respect of which, as indicated above, no
obligation concerning supervision applied 3•The same situation was
intended to apply in Article 73 of the Charter; and itis to this end
that paragraph (e) thereof emphasizes that the transmission is to
be "for information purposes" \
In the present case, there was a purely volimtary undertaking to
fumish information "in accordance with" or "on the basis of" Article 73
(e) ~ coupled with an express denial of liability to submit to United
Nations supervision, and with an understanding that the information
was not to be dealt with as if a trusteeship agreement had, in fact, been
6
concluded • Inasmuch as the United Nations neither accepted nor
observed th~ conditions attached to the undertaking, in which circum
stances the undertaking was withdrawn, there was never any consensus
ad idem or agreement, express or implied, even as regards the furnish
ing of information in accordance with Article 73 (e), much less as re
gards Respondent being obligcd to submit to supervision on the part
of the United Nations.
VI. PRACT!CE OF STATES
38. During the years immediately after establislunent of the United
Nations and the dissolution of the League, the practice of States showed
a general understanding that the League supervisocy powers in respect
of Mandates had not been transferred to, or assumed by, the United
Nations.
As appears above 7, Respondent expressed its attitude vecy clearly
both before the Fourth Committee and before the General Assembly
during the period September to November 1947, to the effect that Re
spondent was not obliged to conclude a trusteeship agreement for
South West Africa, and was not prepared to do so, and that in the
absence of a trusteeship agreement, the United Nations had no "right
1
2 Vide Chap. II, paras. 43-53.
3 Para.7,psupra.44-54.
• Vide Hall,op. cit.pp. 285-286, 288-289.
' Vide Chap. II, paras. 44, 48-49, 51, supYa.
7 Ibid., paras. 48-49, 51.
Vide Chap. II, paras. 48-49. Vide also para. 50. COUNTER-MEMORIAL OF SOUTH AFRICA
139
of control or supervision" 1or "supervisory jurisdiction" 2 in respect of
South West Africa. At that time the United Nations consisted of 57
Members, of which 51 had been original Members. Of the 51, 31 had
been Members of the League at the time of its dissolution and 34 had
been original Members of the League. Had these States or any of them
disagreed with Respondent's contention that the supervisory functions
of the League had not been transferred to the United Nations, one would
have expected them to have contested it, particularly if they had been
parties to an agreement, express or implied, concluded the previous
year and providing for such a transfer.
39. In fact, representatives of 41 States addressed the various organs
of the United Nations on the question of South West Africa during
1947, bi,tat no stage did any of them aver the existence of any such agree
ment or suggest that the supervisory functions of the League had passed
to the United Nations on any other basis 3• On the contrary, at least
14 of the 41 States who took part in the debates, acknowledged 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 South West Africa. These were Australia, China, Colombia,
Cuba, France, India, Iraq, the Netherlands, New Zealand, Pakistan,
the Philippine Republic, the Soviet Union, the United States of America
and Uruguay\
During 1948 and 1949, four additional States associated themselves
with this view, viz., Canada, Costa Rica, Greece and the United King
dom 5.
Up to 1949 18 States therefore expressed the view that in the absence
of a trusteeship agreement, the United Nations would have no super~
visory powers with regard to South West Africa. If South Africa is
added, the number is increased to 19.
Whereas there had been no contradiction in 1947, five States adopted
a contrary attitude in 1948 and 1949 • They were Belgium, Brazil,
Cuba, India and Uruguay. Cuba, lndia and Uruguay had previously
taken up a different attitude as indicated above; and India did so again,
in its written statement to this Court in the 1950 proceedings relating
to the status of South West Africa 7•
As will be seen from the extracts quoted above 8,none of these States
relied on any agreement (other than Art. 80 (1) of the Charter) hav
ing been concluded during the transitional period of 1945-1946.
40. Also in respect of other mandated territories, the practice ot
States up to 1948 shows a clear understanding that the United Nations
would have no supervisory powers over the administration of a man
dated territory not placed under trusteeship. This understanding appears
from the following:
1 Vide Chap. II, para. 48.
2 Ibid., para. 49.
3 Ibid., para. 57 (a), (b) and (c).
• Ibid., para. 57 (d).
' Vide Chap. Ir, para. 58.
6 Ibid.,para. 60.
7 Vide InternationalStatus of South-West Africa, Pleadings, O,al Arguments,
Documents, p. r48. Vide also Chap. II, para. 6o, supra.
a Chap. II, para. 6o, supra. SOUTH WEST AFRICA
(a) The trusteeship agreement for the mandated territory of Nauru
was entered into as late as November 1947, i.e., more than hvo
1
years after the Charter had come into force ; and the United
Kingdom withdrew from the administration of Palestine only as
from 15 May 1948 2• Nevertheless no reports were in the interim
period submitted to the United Nations in respect of either Terri
tory. As far as the United Nations records show, and as far as
Respondent is aware, no State ever suggested that such reports
should be submitted----either in respect of these Territories or in
respect of any other mandated territories during the period after
dissolution of the League and prior to "new arrangements" being
"agreed" upon in regard to them.
(b) (i) The case of Palestine is of particular significance inasmuch
as it was investigated and reported upon by a United Nations
Special Committee, consisting of representatives of II Members of
the United Nations. Relevant extracts from the report, dated 3
September 1947, are set out above 3• It is important to note that
this committee unanimously expressed the clear understanding that
the United Nations did not take over the supervisory fonctions of
the League of Nations with respect to Mandates which were not
converted into trusteeship territories. Five of these II Members
(Australia, Canada, India, the Netherlands and Uruguay) at various
times during the relevant period expressed the same view regarding
the Mandate for South West Africa, as has been noted above. The
further six were Czechoslovakia, Guatemala, Iran, Peru, Sweden
and Yugoslavia.
(ii) Also in debates on the Palestine question the same view was
expressed. On r9 March 1948, before the Security Council, the re
presentative of the United States of America stated: "the record
seems tous entirely clear that the United Nations did not take over
the League of Nations Mandate system 4."
(c) On 22 November 1946 the representative of New Zealancl clearly
expressed a similar understanding in relation to the Mandate for
the Territory of Western Samoa 5•
(d) On 2 April r947 a sirnilar understanding emerged from state
ments made by the representative of the Union of Soviet Socialist
6
Republics in relation to the former Japanese Mandated Islands •
41. In the result therefore:
(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 over the
Mandate for South West Africa, although 41 took part in debates
1 Vide G.A .. O.R., SecrJnd Sess., Sup. No. 10 (A/402/Rev.1).
2 The Mandate terminated on 15 May 1948. The last British troops left from
Haifa on 30 June 1948. Vide Keesing's Contemporary Archives, Vol. VII (1948-1950),
p. 9354.
3 Vide Chap. Il, para. 59 {c), supra.
4 S.C., 0.R.,Third Year, Nos. 36-51, 271st Meeting, 19 l\lar. 19'18, p. 164. Vide
Chap. II, para. 59 (d}, supra.
' Vide Cha p. II,para. 59 (a). supra.
6 Ibid., para. 59 (b). COUNTER-MEMORIAL OF SOUTH AFRICA
on South West Africain that year and New Zealand had adopted
a similar view in relation to \:Vestern Samoa.
(b) Over the years 1947 to 1949, at least 24 States Members of the
United Nations (oth~r than Respondent) in participating in debates
in the organs of the United Nations, or in exprcssing 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 acknowledged that,
in the absence of a trusteeship agreement, the United Nations would
have no supervisory powers over a mandated·territory. These States
were: Australia, Canada, China, Colombia, Costa Rica, Cuba,
Czechoslovakia, France, Greece, Guatemala, India, Iran, Iraq, the
Netherlands, New Zealand, Pakistan, Peru, the Philippine Repub
lic, the Soviet Union, Swcden, the United King1om, the United
States of America, Uruguay, Yugoslavia •
(c) Up to 1949 only live States voiced any contradiction to the pro
position aforestated. These States were Belgium, Brazil, Cuba, India
and Uruguay. In the case of the lastmentioned three States, the
attitude adopted by them in 1948 and 1949 was in conflict with
thcir carlier contentions, and in the case of lndia also with its
contentions before this Court in 1950. And in no case was the con
tradiction based on a suggested agreement or understanding (other
than Art. 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 any
one of the two Applicant States, Liberia or Ethiopia.
42. The understanding which emerges from the above circumstances,
and in particular the written and oral statements made on behalf of a
large number of States, Members of the United Nations, in a variety of
circumstances and situations, and within a relatively short time after
the establishment of the United Nations and the dissolution of the
League, when the events were still reasonably fresh in memory, in
Respondent's submission effectively refutes any suggestion of agreement,
express or implied, as between Members of the United Nations or other
interested parties to the effect that l\fandatories would be subject to
United Nations supervisioll in respect of Mandates not converted into
trusteeship 2.
VII. THE ADVISORY ÜPINION OF 1950
43. The majority of the members of the Court in 1950 came to the
conclusion-
"... that the General Assembly of the United Nations is legally
qualified to exercise the supervisory functions previously exercised
1 Vide paras. 39 and 40, supra. In the years 1947, 1948 and 1949, the Mcmbers of
the United .Nations totalledrespectively,57, 58 and 59.
2 Similarly, in Respondent·s submission, thesc discu,;;sions clearrefute any
suggestion that such an obligationarose out of a term to be implied in the Mandate
instrument (para. 17, supra).In this regard ît must be·noted that 18 of the 24
States who expresscd the view during 1947 to 1949 that the United Nations did not
succeed to the supervisoryfonctions of the League in respect of 1Iandatehad been
founder Members of the League of Nations, and 17 had been Members at the time
of its dissolution.142 SOUTH WEST AFRICA
by the League of Nations with regard to the administration of the
Territory, and that the Union of South Africa is under an obligation
to submit to supervision and control of the General Assembly and
1
to render annual reports to it ".
At the next page of the Opinion followed a consequential conclusion
regarding petltions, viz.:
"In view of the result at which the Court has arrived with respect
to the exercise of the supervisory fonctions by the United Nations
and the obligation of the Union Government to submit to such
supervision, and having regard to the fact that the dispatch and
examination of petitions form a part of that supervision, the Court
is of the opinion that retitions are to be transmitted by that Govern
ment to the Genera Assembly of the United Nations, which is
legally qualified to deal with them ."
The Court's reasoning in support of its above main conclusion, is
set out at pages 136 to 137 of the report. It commences with a recog
nition of-
"... the fact that the supervisory fonctions of the League with
regard to mandated territories not placed under the new Trustee
ship System were neither expressly transferred to the United Nations
nor expressly assumed by that organization 3".
Then follow what in the Court's words "nevertheless, ... seem to be
decisive reasons" for its conclusion. These can briefly be summarized
as follows:
(i) The obligation to accept "international supervision" and to sub
mit reports isan important part of the mandate system---considered
by the authors of the Covenant to be required for effective performance
of the sacred trust, and similarly regarded by the authors of the
Charter relative to the international trusteeship system. The
"necessity for supervi"sion" cannot be admitted to have disa;weared
"merely because the supervisory organ has ceased to exist ', when
the United Nations has another international organ performing
similar, though not identical, supervisory fonctions.
(ii)"These general considerations" are confirmed by Article So (1)
of the Charter, which cannot "effectively safeguard" the rights of
the peoples of mandated territories without international super
vision or a duty to render reports to a supervisory organ.
(iii)In its resolution of 18 April 1946, concerning mandates, the As
sembly of the League of Nations gave expression to a "correspond
ing view". In the Court's view "this resolutian presupposes that the
wpervt'sory functions exercised by the League would be taken over by
the United Nations" 1. (Italics added.)
(iv) The General Assembly of the United Nations is rendered compe
tent to exercise .such supervision and to receive and examine such
reports by Article IO of the Charter.
1 International Status of South-West Ajrica, Advisory Opinio,i, I.C.J. Reports I950,
p. 137. ·
i Ibid., p. 138.
3 Ibid., p136. COUNTER-MEMORIAL OF SOUTH AFRICA I43
It seems evident that the Court could not have meant that each of
the above four "reasons", or stages in the reasoning, was to be regarded
as in itself affording full justification for the conclusion arrived at.
So, for instance, stage (iv) is concerned merely with the determina
tion within the United Nations of an organ which would be competent
to undertake the supervision; but this would have no relevance in the
enquiry unless there should be an obligation to submit to United
Nations supervision. Stage (iv) clearly proceeds on the basis that such
an obligation has been affirmatively established by the first three stages.
44. The first stage in the reasoning is described in the Opinion itself
as embodying "general considerations". As noted above, they relate
to "effective performance" of the "sacred trust of civilization". At
the outset the learned judges state in effect that the authors of the
Covenant considered that international supervision of Mandatory ad
ministration was necessary for such effective performance; that the
authors of the Charter had in mind the same necessity relative to the
trusteeship system; and that such necessity continues to exist despite
disappearance of the supervisory organ under the mandate system.
These statements are clear, and were apparently meant to supply a
basis for possible application of the principle of effectiveness, in the
sense that there can be said to be a presumption or general likelihood
that the interested parties would have intended to keep alive, after
dissolution of the League, an obligation on the part of Mandatories to
submit to international supervision regarding Mandatory administra
tion. In other words, the consideration of effectiveness was invoked as
a factor in reasoning towards a possible implication of tacit agreement 1.
The next general consideration is the existence within the United
Nations of an organ performing supervisory fonctions-for which
reason it cannot be "admitted" that the obligation to submit to super
vision has disappeared merelv because the League supervisory organs
have ceased to exist. The suggestion seems to be that, in the light of the
consideration of effectiveness already stated, the interested parties might
well (or would probably) have intended that supervision of mandates
should be continued by this new organ. Again this is reasoning by in
ference relative to tacit intent.
45. Clearly the "general considerations" were not considered conclu
sive. If they should be read as purporting to be full justification, by
themselves, for the Court's conclusion in question, they would have to
be interpreted as meaning in effect that because international super
vision is desirable, therefore the Court holds that it must exist; and,
that because the United Nations has an organ performing supervisory
fonctions under a trusteeship system, which are similar to, though not
identical with the supervision previously exercised by the League organs
in respect' of mandates, therefore the Court holds that a Mandatory
previously obliged to submit to League supervision must now be obl~ged
to submit, in .respect of its Mandate, to supervision· of the Umted
Nations organ (despite the fact th,at the Mandatory is not obliged and
may not be willing to submit to the trustèeship system). If this we~e
what the Court intended to signify, it would mean that the Court m
effect forsook its function of deciding in accordance with law and
1
Vide Chap. III, paras. 27-3supra.r44 SOUTH WEST AFRICA
assumed the role of a legislator. Clearly such an interpretation of the
Court's reasoning cannot be justified. The Court could hardly have
ignored the universal principle of law and logic that a party which
consents to an obligation of a certain. content, cannot, merely for that
reason, and without fresh consent or agreement on its part, be held
1
liable to an obligation of a substantially different content .
Nor does it seem that the Court could have intended to apply the
principle that an obligation is not extinguished by impossibility of per
formance when the impossibility affects only one of two or more equiv
alent methods of compliance therewith. That principle clearly cannot
find application in the present case, for the very reason that the obligation
was not one to submit to "international supervision" but to the specific
supervision of particular League organs. Submission to United Nations
supervision would thus be a different obligation in substance as well
as in form, and not a mere equivalent method of complying with the
same obligation. That there were certain inherent and unavoidable
differences, appears to have been acknowledged by the majority of the
Court in the 1955Advisory Opinion, particularly in the following passage:
"The voting system is rclated to the composition and functions
of the organ. lt forms one of the characteristics of the constitution
of the organ. Taking decisions by a two-thirds majority vote or
by a simple majority vote is one of the distinguishing features of the
General Assembly, while the unanimity rule was one of the dis
tinguishing features of the Council of the League of Nations. These
two systems are characteristic of different organs, and one system
cannot be substituted for the other without constitutional amend
ment. To transplant upon the General Assembly the unanimity
rule of the Council of the League would not be simply the introduc
tion of a procedure, but would amount to a disregard of one of the
characteristics of the General Assembly. Consequently the question
of conformity of the voting system of the General Assembly with
that of the Council of the League of Nations presents insurmount
able difficulties of a juridical nature 2."
In the result it seems evident that the first stage in the reasoning
should be interpreted as not having been intended to be conclusive
in itself but merely as affording indications of probability which,
together with othér relevant factors, could justify an inference of tacit
·agreement rendering Mandatories obliged to submit to United Nations
supervision.
46. The second stage in the reasoning refers to Article 80 (r) of the
Charter, and holds that the general considerations are "confirmed" by
this clause "as ... interpreted above". These last words relate to an
earlier passage which distinguishes the actual content of the clause from
something "presupposed" by it, namely that the rights of States and
peoples regarding mandates would not lapse automatically on dissolu-
1 Vide para. 21, supra, as to the material difference in form and substance
between an obligation to submit to League supervision in respect of Mandatesand
one to submit to United Nations supervision.
2 Voting Procedure on Questions relaling to Reports and Petitions concerning the
Territoryof South West Africa, Advisory Opinion, l.C.j. Reports r95p. 75· COUNTER-MEMORIAL OF SOUTH AFRICA I45
tion of the League 1; the earlier passage proceeds that "it obviously was
the intention to safeguard the rights of States and peoples under all
circumstances and in all respects, until each territory should be placed
under the trusteeship system 2". (ftalics added.) The reasoning re
3
garding supervision then proceeds by stating that the "purpose must
have been to provide a real protection for those rights; but no such
rights of the peoples could be etfectively sa/eguarded without inter
national supervision and a duty to render reports to a supervisory
organ" 4. (1talics added.) Again, therefore, the presupposition, the
obvious intent and the purpose referred to unexpressed, i.e., tacit intent,
and the ef/ectt've sa/eguardi'ng was employed as a factor of probability
in reasoning towards an implication regarding such intent.
Applicants contended in their argument on the Preliminary Objec
tions, that the Court's reasoning in the 1950 Opinion should be read as
holding that Article 80 (1) by itself resulted in a transfer of the League's
supervisory fonctions to the United Nations 5•Tt is clear, however, that
5
Article 80 (r) cannot be interpreted to aclùeve such a result • Conse
quently, Applicants' contentions in this respect did violence both to the
language of Article 80 (r) and to the reasoning of the Court in the 1950
Opinion.
47. The third stage in the reasoning concerns the last League Assem
bly resolution regarding Mandates 6• After giving the contents of its
thlrd and fourth paragraphs, the Opinion states the conclusion: "Thls
resolution presupposes that the supervisory fonctions exercised by the
League would be taken over by the United Nations 7." (ltalics added.)
Once more the reference is clearly to an inferred, tacit intent: the word
"presupposes" renders tlùs clear, as also the fact that the resolution
itselfmade no mention of any transfer or taking over of supervisory
fonctions.
48. To sum up, the Court was arguing from what it considered to be
probabilities inherent in objective features referred to by it in the first
two stages of its reasoning, and seeking to draw from thcse probabili
ties an inference of tacit agreement between the parties to the Charter
of the United Nations to the effect that Mandatories would be obliged
to submit to the United Nations supervision, pending trusteeship or
other agreement with the United Nations. And, in the third stage of its
reasoning, it sought to draw a similar inference of a corresponding tacit
agreement on the part of the Members of the League of Nations at the
time of its dissolution. Respondent contends that neither of these in
ferences could have been justified or would have been drawn, had the
Court been fully informed of ail the relevant facts.
In his judgment in the case of Rex v. Blom, Judge Watermeyer, a
1 International Status of South-West A/rira, Advisory Opinion, I.C.J. Reports I950,
PP· r33-i34.
2 Ibid.,p. 134.
l Ibid.,p. 136.
• Ibid., pp. r36-137.
' Vide para. 24, supra. :
6 For itstcxt,vide Chap. II. para. 41 (/), supra.
7 International Status of South-West Africa, Advisory Opinion, I.C.J. Repo•ls r950,
p. r37. SOUTH WEST AFRICA
South African Judge of Appeal and later Chief Justice of the Union,
stated as follows:
"In reasoning by inference there are two cardinal rules of logic
which cannot be ignored:
(1) The inference sought to be drawn must be consistent with all 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 1."
These rules of logic are clearly of general application. In particular
they are applied by Courts of civilized States to the question whether a
tacit agreement, or a tacit term in an express agreement, can justifiably
be inferred or implied in a given case.
As pointed out above, a term may be inferred or implied only where
it arises necessarily or inevitably from the relevant facts, in the sense
that all other reasonable inferences are excluded 2• From this it follows
that the tenn sought to be implied must be capable of formulation in
substantially one way only 3•If the content of the term sought to be
implied is doubtful, then one cannot conclude that the parties tacitly
agreed on anything at ail.
When regard is had to these principles and logical considerations, it
is self-evident that in the absence of knowledge of certain relevant facts.
a conclusion arrived at in reasoning by inference may be vitally d.ifferent
from what it would be if ail the facts were known and considered. Three
sets of facts which were not before the Court in 1950 and are of parti
cular importance in this regard, are dealt with in the next succeeding
paragraphs.
49. The majority conclusion as to the presupposition involved in the
last League resolution on Mandates 4, was an integral part, if not the
crux, of its reasoning in concluding that the League's supervisory
fonctions had by tacit agreement been transferred to or assumed by
the United Nations. But the introduction of the facts concerni·ngthe
original Chinese proposal5, which were not before the Court in 1950,
puts a completely different complexion on the tacit intentions of the
League Members at the last Session. It shows that what the Court
considered to be a presupposition or tacit understanding, had been
sought to be achieved by express resolution, but that the proposal to
that end could not be proceeded with because it became plain that
6
certain of the parties would not agree thereto •
' Rex v. Blom, 1939 A.D. r8S, at pp. 202-203.
2 Vide Chap. III, para. 24, supra.
3 Ibid., para. 25 (a).
• Vide para. 47, supra.
5 Vide Chap. II, para. 41 (c) and para. 31, supra.
6 It is instructiveto note the close similaritybetween the wording of the presup
position or tacit understanding found by the Court, and the express terms of the
first Chinese draft proposai.The 1950 majority opinion stated that the resolution
presupposed that:
" ...the superuisory /une/ions exercised by the League would be taken ove, by the COUNTER-MEMORIAL OF SOUTH .-\FRICA
r47
This not only dcstroys all possibility of fmding in favour of such
presupposition: it also throws such light on other aspects of the final
League proceedings 1 as to rcnder clear a contrary understanding on
the part of the Leaguc Members, viz., that there would be no reporting,
accounting or supervision pending "agreement" upon "other arrange
ments" as between each Mandatory and the United Nations. In turn,
this contrary understanding in itself effectively rebuts the presumptions
or probabilities regarding effectiveness, as rclied on in the majority's
reasoning concerning the "general considerations" and the "purpose"
2
of Article 80 (1) of the Charter . For the majority of the Leaguc Mem
bers, including ail Mandatorics except Japan, had been involved in the
,~stablishment of the United Nations and the agreement upon its Charter.
Consequently their understanding at that time could hardly have been
the opposite from what it was shortly afterwards at the dissolution
of the League. .
50. The last-mentioned factor, bearing on the tacit intent of the found
ers of the United Nations, is enhanced by the second set of facts not
known to the Court in 1950, i.e., that there was an express proposal that
the suggested Temporary Trusteeship Committee was to be empowered
to "advise the General Assembly on any matters that might arise with
regard ta the trans/er ta the Unüed Nations of any functions and respon
3
sibilities hitherto exercised under the mandates system " (italics addcd)
which proposai lapsed upon the rejection of the suggestion of a Tcmpo
rary Trusteeship Committee, without the substitution of anything
regarding possible transfer to, or assumption by, the United Nations
4
of any "fonctions under the mandate system" •
5r. Finally, as regards the tacit intent of the United Nations founders
as well as of League Members at its dissolution, regard must be had to
the third set of facts not before the Court in r950, i.e., the practice of
States during the years I946 to I949 and reflected, inter alia, in \vritten
and oral statements made on behalf of a large number of States in a
variety of circumstances and situations, and within a relatively short
timc after the establishment of the United Nations and the dissolution
United Natious''. (Italics added.) (International Status of South-West Africa,
Advisory Opinion, J.C.J. Reports I950, p. 137.)
The Chinese draft proposai had considered:
" ...that the League's funclion of supervisingmandated lerril01'ies should be trans
jerred to the United Nations ... " (Italicsadded.) (Vide Chap. II, para. 41 (c),
supra.)
1 As dealt with in Chap. II. para. 41, supra, and in this Chapter, paras. 30-36,
supra.
2 Vide para. 46, supra.
3 Doc. PC/EX/113/Rev. 1,p. 56.
• Vide Chap. 11, para. 35 (a), (b) and (c), supra, and parn. 27, supra. The text
of the powers regarding Mandates proposed to be exercised by the Temporary
Trusteeship Committee. was not before the Court in 19.50, nor was any reference to
these proposed powers made in the written or oral proceedings. That there was a
suggestion to have a Temporary Trusteeship Committee. which was later abandoned,
does appear from the statement made by Dr. Ivan S. Kerno, the legal office, of the
United Nations, which appears in JnlernationalStatus of South-West Africa. Plead
ings, Oral Arguments, Doctmients, at p. 161, but, as already stated, without any
reference to the powers regarding Mandates proposcd to be exercised by such
Committee. 148 SOUTH WEST AFRICA
of the League of Nations, when the events were still reasonably fresh
in memory 1•These statemcnts show unmistakably ageneral understand
ing amongst Members of the United Nations that no supervisory func
tions regarding mandates (not converted into trusteeships) had been
taken over, and thus refute any suggestion of a general tacit intention
to the contrary.
Had the above facts been known to the Court in 1950, it seems in
conceivable that it could have arrived at its conclusion regarding an
obligation on Respondent's part to submit to United Nations supervision.
VIII. DISSENT FRü:i.1 THE 1950 ÛPINION CONCERN'ING SUPERVISION
52. Minority Opinions.
Even on the basis of the facts before the Court in 1950, two of its
·members, Sir Arnold McNair and Judge Read, were not prepared
to subscribe to the finding that Respondent is obliged to submit to a
supervisory power on the part of the United Nations, and they gave
full reasons for their dissent 2• As far as Respondent is aware, these
reasons and the conclusions drawn from them have invited no adverse
criticism from writers on international law. On the contrary, they
find considerable support in the critical comments of such writers-as
will appear from paragraph 53 below. Furthermore, the additional
factual information now brought into consideration 3 confirms the correct
ness of the result arrived at in these minority opinions.
53. Opinions of Writers.
(a) Even before the 1950 Advisory Opinion, Hall, in dealing with
the effect of the dissolution of the League upon Mandates, stated,
inter alia:
". . . the supervisory fonctions of the League had corne to an end
before the supervisory fonctions of the United Nations could
begin to operate, especially since the plan for a temporary trustee
ship committee had becn rejected in the Preparatory Commission
of the United Nations 4".
In referring to the original draft resolution raised by the Chinese
delegate at the last session of the League Assembly, which was not
proceeded with, he quoted the Chinese delegate as saying that the
Charter "made no provision for assumption by the United Nations
of the League's fonctions" under the mandate system 5•
And he commented finally in regard to the League Assembly
resolution of 18 April 1946:
"The significance of this resolution of the League Assembly
becomes clearer when it is realized that for many months the most
elaborate discussions had been taking place between the govern
ments as to the exact procedure to be adopted in making the
transition between the League and the United Nations. It was the
1 Vide paras. 38-42,supra.
2 International Status of South-West A frica, Advisory Opinion, I.C.J. Reports I950,
pp. 159-162, 166-173.
3 Vide paras. 49-5r,supra, and ear!ier paragraphsthere referredto.
4 Hall,op. cit., p272.
5 Ibid.pp. 272-273. COUNTER-MEMORIAL OF SOUTH AFRICA
149
function of the Preparatory Commission and the committees suc
ceeding it to make recommendations on the transfer of functions,
activities, and assets of the League. Ali the assets of the League
had been carefully tabulated. Ali its rights and obligations that
could be bequeathed to the United Nations and whieh the latter
desired to take over were provided for in the agreements that were
made. But in the case of mandates, the League <lied without a
testament 1."
(b) In January 1951, very shortly alter the 1950 Advisory Opinion,
Manley O. Hudson wrote as follows:
"To support its additional conclusion that the Union of South
Africa is obliged to submit to the supervision of, and to render an
nuai reports to, the United Nations, the Court relied upon a resolu
tion adopted by the final Assembly of the League of Nations on
April 18, 1946, which was said to presuppose that the 'supervisory
functions exercised by the League would be taken over by the
United Nations'. This is hardly borne out by the text of the resolu
tion, however. Nor is the succession of the General Assembly a
necessary consequence of its competence under Article 10 of the
Charter to which the Court refers ~"
and,
"The Court seems to have placed emphasis on the competence
of the Gencral Assembly to exercise supervision and to receive
and examine reports. Such competence can hardlv be doubted.
Yet it does not follow !rom the conclusion that the General Assem
bly 'is legally qualified to exercise the supervisory functions pre
viously exercised by the League of Nations', that the Union of
South Africa is under an obligation to submit to supervision and
control by the General Assembly, or that it is obligated to render
annual reports to the General Assenibly '·"
Regarding the applicability and effect of Article 80 (1) of the
Charter he remarked:
"Article Bo (r) of the Charter seems to be the principal basis of
the Court's conclusion that the Union of South Africa must report
to the General Assembly. This article provided that, until the con
clusion of Trusteeship Agreements, nothing in Chapter XII of
the Chartershould 'be construed in or of itself to alter in any manner
the rights whatsoever of any states or any peoples or the terms of
existing international instruments' (italics supplied). The text clear
ly shows an intention that Chapter XII should not effect any alter
ation of rights or terms. This intention was 'entirely negative in
character'. The provision served an obvions purpose when Chapter
XII of the Charter was drawn up: the Mandate was still in force
at that lime: as the League of Nations had not then been dissolved,
any alteration of the existing situation was a matter for its con
sideration. Article 80 (r) was a precautionary provision designed
to negative the accomplishment of any change in the existing
1 Hall,op. cit.p.273.
2 Hudson, M. O., "The Twenty-nintb Year of the World Court", A .J.I.L., Vol. 45
(Jan. 1051).pp. 1·36,atp. 13.
' Ibid., p14.I50 SOUTH WEST AFRICA
situation by reason of Chapter XII 'in or of itself'. It is not sur
prising that Judge McNair found it 'difficult to see the relevance
of this article'.
Yet the Court gave an affirmative effect to Article 80 (1), turning
it into a positive 'safeguard' for maintaining the rights of states
and the rights of peoples of the mandated territory. This is the
more notable because at a later stage the Court stressed the 'en
tirely negative' character of Article 80 (z), declining to say that
the latter imposed a positive obligation on the Mandatory even to
negotiate with a view to the conclusion ofa Trusteeship Agreement.
No attention was paid by the Court to the fact that certain
States, which as Members of the former League of Nations may have
'rights' under Article 22 of the Covenant and under the Mandate
itself,had no responsibility for the Charter and have never become
Members of the United Nations. For example, Finland, Ireland
and Portugal, which were represented at the final session of the
Assembly of the League of Nations in 1946, are in this category. If
their rights are 'maintained' by Article 80 {r) of the Charter, they
have no voice in the supervision to be exercised by the General
Assembly 1."
(c) In August 1951, followed an article by Joseph Nisot 2• The learned
author stated, inter alia:
"Now, what, in actuality, were the rights derived by peoples from
the Mandate and from Article 22 of the Covenant? They were not
rights to the benefit of abstract supervision and control. They con
sisted of the right to have the administration supervised and con
trolled by the Council of the League of Nations, and, in particular,
the right to ensure that annual reports were rendered by the
mandatory Power to the Council of the League of Nations, as it
was, and the right to send petitions to the Secretariat of the League
of Nations. \Vhat has become of these rights? They have neces
sarily disappeared as a result of the disappearance of the organs
of the League (Council, Permanent Mandates Commission, Secre
tariat).
The Court could not correctly conclude that such rights had been
maintaincd by Article 80, except by contending at the same time
that for the purposes of the Mandate for South \Vest Africa, the
said organs had survived the dissolution of the League .
. . . Being unable, and for good reasons, so to contend, the Court
creates new rights. To the Court, the right of peoples 'maintained'
by Article 80 is Jinked to the United Nations Organisation ...
According to its thesis, it is because Article 80 'maintains' the
rights of peoples that these, though linked to the League, must now
be deemed linked to the United Nations! To infer this from a
text worded as is Article 80 amounts to assuming that, with respect
to the mandates system, the United Nations stands as the legal
successor of the League, an assumption inconsistent with the dis-
1 Hudson, op. cil., pp. r4-r5.
2 Xisot, ]., "The Advisory Opinion of the International Court of Justice on the
International Status of South \Vest Africa",S.A .LJ., Vol. 68, Part 3 (Aug.
r95r), pp. 274-285. COUNTER-MEMORIAL OF SOUTH AFRICA
eussions of San Francisco and with the very fact that the Charter
provides for the conclusion of trusteeship agreements 1."
Regarding the resolution of r8 April 1946, of the League Assembly,
he continued:
"... one fails to see how this statement can provide any support
for a suggestion that it was the Assembly's opinion that a mandatory
Power, though not bound by a trusteeship agreement, was under an
obligation to submit to supervision and control by the United
Nations.
This was no more the opinion of the Assembly of the League
of Nations than that of the General Assembly of the United Nations,
which, by its resolution of 9th February, 1946, urged the conclusion
of trusteeship agreements, implying that no implementation of the
principles of the trusteeship system-therefore, no supervision or
control-was possible in the absence of such agreements 2."
In the final portion of this part of the article, Nisot referred to the
failure of the authors of the Charter:
"to provide for international supervision with respect to the obliga
tions incumbent on a mandatory State, should it elect not to con
clude such an agreement." (i.e., Trusteeship Agreement.)
He concluded:
"This Jack of foresight has resulted in the present situation,
which the Court attempts itself to redress, stepping out of its role
as interpreter of the law to assume that of legislator 3."
(d) Georg Schwarzenberger commented, inter alia, as follows:
"... the World Court was faced with the issue of whether the
United Nations had become responsible for the discharge of the
supervisory fonction which the League had formerly exercised in
refation to the only still surviving mandate. In support of a positive
answer, the Court could neither rely on any general principle of
succession between international persons nor any relevant trans
action between the two collective systems .... The still missing
link with the United Nations wa.s provided by the Court's inter
pretation of Article 80 of the Charter of the United Nations. ft wa.s
admitted in the majority Opinion that 'this provision only says
that nothing in Chapter XII shall be construed to alter the_rights
of States or peoples or the terms of existing international mstru
ments'. Still, with the assistance of a somewhat debatable presup
position and 'obvious' intentions, the last gap wa.s bridged. It is
not surprising that Judge McNair should have found it 'difficult
to see the relevance of this Article'.
Having filled the legal void which separated the supervisory
functions of the League of Nations from those of the United
Nations, the Court proceeded with its self-imposed task of 'judicial
legislation'4."
1Ni.~ot,op. cil., p. z79.
2 Ibid., p. z8o.
3 Ibid., p281.
• Schwarzenberge1, G., InternationalLaw (3rd ed.), Vol. I. pp. IOI-102. SOUTH WEST AFRICA
Again the criticism of the majority opinion was possibly in a
large rneasure derived from the fact that certain material facts
may well have been known to some of these writers whereas the
Court was unaware thereof in 1950.
IX. ADVISORY OPINIONS OF 1955 AND 1956
54. On 7 June 1955 and 1 June 1956 this Court gave Advisory
Opinions interpreting the 1950 Opinion. The 1955 Opinion concerned
voting procedures on questions relating to reports and petitions re
garding the territory of South West Africa 1• The 1956 Opinion related
to the admissibility of hearings of petitioners by the Committee on
South West Africa 2.
In both cases this Court was asked only for an interpretation of
the 1950 Opinion, and consequently its correctness was not considered.
The later Opinions are, however, significant in one respect. The diffi
culty experienced by the Court, particularly in 1956, in determining
exactly what had been decided in 1950 regarding supervision and what
the ratio of such decision was, indicates, in Respondent's respectful
submission, that the Court in 1950 was not able, on the information
before it, to formulate with precision the implied agreement considered
to have been entered into during the years 1945-1946. In the result,
doubt must attach to the correctness of the implication even on the
information then before the Court 3• The further information now
presented, however, in Respondent's submission, establishes clearly
that no such implication is warranted.
X. }UDGMENT AND ÛPINIONS ON THE PRELIMINARY ÛBJECTIONS
55. Although the question whether Respondent's obligation to re
port and account to the Council of the League survived the Lcague's
dissolution, v.:as notper se an issue to be determined for the purpose
of the Preliminary Objections, it was extensively argued by both
Parties. This was done primarily because of the nature of the main
argument advanccd by Applicants on the issue whether there were
still in existence any States competcnt to invoke the compromissory
clause. That argument was to the effect that on dissolution of the
League a succession was effected of the fonctions and rights of the
League and its Members in favour of the United Nations and its Mern
bers, and that the right to invoke the cornpromissory clause was thus
kept alive in favour of Members of the United Nations 4•
However, although eight Members of the Court held that the right
of Members of the League to invoke the compromissory clause was
not terminated by the dissolution of the League, it is signifi.cant that
not one of thern was prepared to accept Applicants' argument relating
to a succession by the United Nations and its 1\1embers.
1
Voting Procedure on Questions relating /o Reports and Petitions concerning the
Territory of South West Ajrica, Advisory Opinion. 1.C.J. Reports I95567..
2 Admissibilityof Hearings ofPetitionerby the Committee on South WestAfrica,
Aavisory Opinion, I.C.j. Reports I956, p. 23.
3 Vide Chap. III, para. 25(a), supra.
• Vide Oral Proceedings, 2-3 Oct. 1962. COUNTER-MEMORIAL OF SOUTH AFRJCA 153
The reasoning of the Judgment and various opinions will be dis
cussed below. As will appear from this discussion, a number of Mem
bers 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, Fitzmauricc and van Wyk) expressed a
clear view that Article 6 had lapsed on dissolution of the League. The
other II judges did not deal expressly with this point; but the findings
or reasoning of seven of them are to a greater or lesser extent incon
sistent with any survival of the Mandatory's procedural obligations.
They are Judges Alfaro, Badawi, Moreno Quintana, Wellington Koo,
Koretsky, Jessup and Mbanefo. ln respect of the remaining four Judges
(i.e., President Winiarski and Judges Basdevant, Spiropoulos and
Morelli) no indications are in this regard afforded by their opinions.
For convenience, the Judgment and opinions will be dealt with in
more or less the order indicated abovc.
56. Separate Opinion of ]udge Bustamante.
Although Judge Bustamantc held that the compromissory clause
had survived the dissolution of the League, he made it quite clear that
he did not thereby intend to convey that in his view any succession
to the United Nations had taken place. In fact he explicitly stated:
"The above findings do not in any way. imply an intention to
establish or to regard as established the principle of automatic
or ex o!ficio succession of the United Nations to the League of
~ations. It has been sufficiently clearly shown. in the course of
the writtcn and oral proceedings in this case, that the theory of
automatic succession is inconsistent with the historical background
of the discussions and resolutions of the two great bodies during
the transitional period in 1945-1946 1."
Dealing spccifically with the Mandatory's procedural obligations, he
stated that "the tutelary organization's right of supervision over the
exercise of the Mandate is an institutional rule in the mandates system",
which is not just an adjectival or procedural formality, but an "essen
tial elemcnt" 2• The survival of this essential element was in his vicw
provided for in the Charter, which imposed on the Mandatory the
obligation to put into force a trusteeship agreement 3•
One of the grounds on which he based this conclusion was the very
fact that in the absence of a trusteeship agreement there would be no
international supervision in respect of mandates. This appears very
clearly from the following passage:
"In my opinion, this wording of paragraph 2, [i.e., Article 80
(2}]which is connected with that of Articles 77 (para. r (a)) and 81
clearly defincs the obligation-the urgent obligation it might be
said-of Mandatory States without delay to put into force a new
Mandate agreement. This interpretation is fully warranted by a
logical reasoning since the intention of the authors of the Charter
cannot have been to leave the mandated territories indefi.nitely to the
unfettered discretion of the Mandatory a/one. To have done so would
have been to distort the character of this legal system as well as
1 South West A/rica, Preliminary Objectiojudgment, I.C.J. ReportsI96z,p. 364.
2 Ibid.,p.358.
3 Ibid.p. 365.154 SOUTH WEST AFRICA
the intentions of its founders. It would have amounted to what
has been called the 'freezing' of the Mandate, which would practi
cally be equivalent to annexation 1." (Italics added.)
Respondent does not propose dealing with Judge Bustamante's con
clusion regarding an obligation to conclude a trusteeship agreement.
This conclusion is contrary to the finding of the Court in the 1950
Advisory Opinion, and Applicants do not rely on any such obligation,
nor have they contended that the Court was wrong in this regard.
Respondent does, however, wish to emphasize that Judge Busta
mante's reasoning is based, inter alia, on the absence of supervision
if no trusteeship agreement is concluded.
57. Dissenting Opinion of Judges Spender and Fitzmaurice.
In their joint dissenting opinion, Sir Percy Spender and Sir Gerald
Fitzmaurice clearly reveal that in their view the 1950 Opinion was
wrong in finding that the League's supervisory functions in respect of
mandates were, on the dissolution of the League, transferred to the
United Nations. This first appears very explicitly from two footnotes.
In the first of these they state:
"... we think that the view expressed by the Court in its 1950
Opinion, to the effect that the supervisory functions of the former
League Council passed to the Assembly of the United Nations
2
which was entitled to exercise them, was definitely wrong ."
The second footnote, referring to the original Chinese draft resolution
raised at the finai session of the League of Nations and later not pro
ceeded with ', reads as follows:
"The contrast between the original Chinese draft and the one
eventually adopted constitutes an additional reason why we find
it impossible to accept the view taken by the Court in 1950, that
the functions of the League Council in respect of Mandates had
passed to the United Nations; for this was the very thing which the4
original Chinese draft proposed but which was not adopted ."
This vicw is again expressed in the following words after a thorough
survey of events concerning the foundation of, and early proceedings
in, the United Nations and the dissolution of the League:
"They [i.e., both the United Nations and the League Assemblies]
refrained equally from any attempt to adapt the Mandates to the
situation arising from the termination of the League and of League
membership.
They not only 'refrained', but at least twice (proposai of _the
Executive Committee of the Preparatory Commission of the Umted
Nations ... and original Chinese resolution at Geneva) they refected
proposals for a transfer of League functions respecting Mandates to
the United Nations. Acceptance of either of these proposais would
naturally not, of itself, have got over the difficulty about cessat10n
1 South West Africa, Preliminary Objections, Judgment, I.C.J. Reports I96a,
p.2365.
3 Ibid., p. 532, footnote 2.
Vide paras.31-33 and 49, supra.
+ South West A/rira, Preliminary Objertions, Judgment, J.C.J. Reports I962,
p. 535,footnote 1. COUNTER-MEMORIAL OF SOUTH AFRICA 155
of League membership. It would probably have brought that
question into the open, but this is not the point. Qur concern here
is simply to show that the two Assemblies were (except for Article
73 of the Charter) unwilling to provide in any specific way for the
consequences of the termination of the League and its membership,
or for a possible eventual failure to bring a mandated territory
into trustceship. In this lies the key to the whole matter.
It is the key to the whole matter because it is strikingly evident
that the two Assemblies (and the Applicant States were Members
of both) relied, and pre/erred to rely, on the hope or expectation
that the mandated territories would eventually be brought into
trusteeship. Whether this was a reasonable assumption in the case
of South West Africa, considering the declarations that were made
on behalf of the Union Government, is anothcr matter. The fact
remains that it was relied upon, in the full knowledge of facts
from which it was manifest that the expcctation might not be
realized, and of the fact that the Mandatory was under no legal
obligation in the matter.
It seems tous fairly clear as a matter of reasonable inference, that
an important part of the reason for this attitude was the desire
to avoid even the suggestion that any mandated territory might
not be brought into trusteeship; or, by providing for the situation
that might arise if that was not done (and if the League had in the
meantime been dissolved) to appear to be countenancing such a
situation by providing for it,or to be giving grounds on the basis
of which any Manda.tory could contend that, express provision
having becn made for continuing the Mandates as Mandates, no
further action was required.
In short, given the view that they took of the whole matter,
those concerned thought it unnecessary to provide for this situation
and better policy not to. This course having been chosen, and the
possible conscquences it entailed accepted, thcre is no legal principle
which would enable a Court of law to put the dock back and, by
judicial action, make provision for a case which those concerned
elected not to deal with for reasons which appeared to them good
and sufficient at the time 1."
Apart from the value of this finding as support for Rcspondent's
submission, the manner in which it is reached is also of significance.
In the passage quoted above. after a thorough and comprehensive re
view of the facts. the learned judges again emphasize two facts pre
viously considered by them. These facts are:
(a) the content of the proposa! of the Executive Committee of the
Preparatory Commission of the United Nations, which proposal
was rejected; and,
(b) the inability of the Chinese representative to secure acceptance
of his original draft resolution.
These two facts are thus singled out for special emphasis in reaching
a conclusion which is at variance with that reached bv the Court in
1950. It is significant therefore that these are both faéts which were
1 South West Africa, Preliminary Objections,Judgment, I.C.J.Reports r962,
pp. 539-540. SOUTH WEST AFRICA
not before the Court in r950 1• Their importance further appears from
the treatment given to them in other parts of the opinion. Thus the
history of the proposal of the Executive Committee of the Preparatory
Commission is dealt with at page 536. The Chinese draft resolution is
dealt with at page 535, where the second footnote quoted above
appears. Thereafter it is again considered at page 538 in the following
terms:
"The contrast between the original draft Chinese resolution, pre
sented by the representative of China but not proceeded with, and
the eventual resolution of the League Assembly is so glaring and
revealing, that we set out both resolutions verbatim in a footnote."
58. Dissenti"ngOpinion of Judge van Wyk.
After a full and systematic treatment of the question whether Article
6 survived the dissolution of the League, Judge van Wyk reached the
following conclusion:
"The above considerations compel me to conclude that those
provisions of the Mandates which depended for their fulfilrnent on
the existence of the League of Nations were not impliedly amended
in any respect, and accordingly ceased to apply on the demise of
the League ."
He thereafter proceeded to deal with the r950 Advisory Opinion and
discussed fully the respects in which he disagreed with the findings of
the majority regarding the succession of the United Nations to the
supervisory functions of the League ·3.
59. The ]udgment of the Court.
The Judgment of the Court does not deal expressly with the question
whether the IJeague's supervisory functions regarding mandates passed
to the United Nations on the dissolution of the League. A detailed
analysis of its reasoning also does not provide any clcar conclusion as
to the probable view of its authors in this regard. A consideration of
the Court's findings and reasoning in regard to the survival of Article
7 of the Mandate indeed appears to provide strong support for a con
clusion that the Court must have considered that Article 6 had lapsed
on dissolution of the League; but doubt is again cast thereon by the
actual treatment of Article 6. These two aspects will be dealt with in
turn below.
60. The Cozirt's Findings regarding the Survival of Article 7.
As has been pointed out above 4, Applicants relied in their Observa
tions on the Preliminary Objections on a so-called "doctrine of succes
sion". This suggested "doctrine" entailed that all rights and functions
in respect of mandates would have passed from the League and its
Members to the United Nations and its Members, which would have
meant, inter alia, that the supervisory fonctions of the League would
have been transferred to the United Nations, and that the competence
to invoke the compromissory clause would have passed from :Members
of the League of Nations to Members of the United Nations.
1 Vide paras.49and 50, supra.
2South West Africa, Preliminary Objections,judgmenl, l.C.J. Reports z96640..
3Ibid., pp.640-653.
• Vide para, 14, sup,a. COUNTER-MEMORIAL OF SOUTH AFRICA 157
The Court did not accept this argument in its application to the
compromissory clause but, on the contrary, held that on dissolution
of the League the competence to invoke the compromissory clause re
mained vested in those States that were Membcrs of the League at its
dissolution. Thus the Court not only declined to accept the "succes
sion" argument raised by the Applicants, but its conclusion seems en
tirely inconsistent with any transfer of League supervisory functions
to the United Nations. As stated above 1,the supervisory functions
could conceivably have passed to the United Nations as a result of
implied agreement concluded in 1920; or by agreement (express or
implied) in 1945-1946 or thereafter; or by some mie of objective law.
It seems inconceivable that any agreement, whether express or implied,
and whether concluded in 1920 or in 1945-1946 or thereafter, would
have separated the obligations to report to the Council of the League
from the obligations owed to Members of the League-in the sense that
the former would relate to a new international organization and the
latter to ex-Members of a different and defunct organization. If the
interested parties intended to replace the Council of the League by the
General Assembly of the United Nations for purposes of administrative
supervision, the logical course would have been to replace the Members
of the League by Members of the United Nations for compulsory
jurisdiction purposes. Otherwise anomalous complications may arise
!rom the diflerence in composition between the two groups of States,
i.e., those entitled to participate in the "administrative supervision"
and those entitled to invoke the compromissory clause. Thus, for in
stance, if, as the Court found, the provisions of the compromissory
clause were inserted in the Mandate largely to enable the will of the
authority exercising administrative authority to be imposed on the
2
Mandatory , it would be anomalous to provide that only some members
of the body exercising administrative supervision (and indeed, on the
present Membership of the United Nations Organization, only a rela
tively small proportion of its Members) would be able to invoke the
Court's jurisdiction. And, it would be equally or even more anomalous
to confer the competence to implement the "judicial supervision" on
States that necd not be members of the organization exercising ad
ministrative supervision, and which may even have been expelled
from such organization. Such anomalies could never have been intended
at any stage.
Similarly, if the concept of devolution through an objective rule of
international law should be applicable at ail to the circumstances of this
case (which Respondent disputes), one cannot conceive of the existence
of a rule which would have the effect of separating in the sense afore
stated the devolution of these two obligations, particularly on the
Court's finding that thev were designed towards achievement of one and
the same purpose, viz.,~enforcement of the Mandatory's "sacred trust"
obligations. ·
61. The Court's Reasoning regarding the Survival of Article 7.
Not only is the Court's finding in regard to Article 7 inconsistent
with a substitution of supervisory organs, as demonstrated above, but
1 Vide Chap. III, para.19,supra.
2 Vide South West A/rica, Preliminary Objections, Judgment, I.C.J. Reports I962,
pp. 336 ff.r58 SOUTH WEST AFRICA
its reasoning in reaching tlùs finding equally tends to negative the pos
sibility of such a succession.
Thus the Court relies largely, if not solely, on an agreement among
Members of the Leaguc of Nations in April r946. This portion of the
Judgment points out that the Members of the League had full knowledge
in April 1946 of the contents of the Charter of the United Nations, as
also of the fact that the United Nations had already begun to operate.
The purpose of the agreement that was concluded was, therefore, in
the words of the Court:
"... to provide for the continuation of the Mandates and the Man
date System 'until other arrangements have been agreed between
the United Nations and the respective Mandatory Powers' 1".
When defining the ambit of the agreement held to have been entered
into inApril 1946 for the purpose set out above, the Court, in Respondent's
submission, renders it clcar that such agreement did not comprehend
any obligation to report and account to the United Nations. Thus the
following language is used:
"... obviously an agreement was reached among all the l\fembcrs of
the League at the Assembly session in April 1946 to continue the
different Mandates as jar as it was practically /easible or operable
with reference to the obligations of the Mandatory Powers and
therefore to maintain the rights of the Members of the League not
withstanding the dissolution of the League itselfl". (ltalics added.)
The Judgment proceeds to state that discussions were held "to find
ways and means of meeting the difficulties and making up for the im
perfections as far as was practicable 2". (Italics added.) Later the agree
ment is said "to maintain the status quo as far as possible in regard to
the Mandates 3". (ltalics added, save in regard to the words status quo.)
At page 341, the agreement is stated to be as follows:
"It is clear from the foregoing account that there was a unanimous
agreement among all the Member States present at the Assembly
meeting that the Mandates should be continued to be exercised in
accordance with the obligations therein defined although the dissolu
tion of the League, in thewords of the representative of South Africa at
the meeting, 'wilt necessarily preclude complete compliance with the
le/ter of the Mandate', i.e., notwithstanding the fact that some organs
of the League like the Council and the Permanent Mandates Commis
sion would be missing. ln other words the common understanding
of the Member States in the Assembly-including the ~fandatory
Powers-in passing the said resolution, was to continue the Man
dates, however imperfect the whole system would be after the League's
dissolution, and as muchas it would be operable, until other arrange
ments were agreed upon by the Mandatory Powers with the United
Nations concerning their respective Mandates." (Italics added.)
From the above discussion of the contents of the agreement, two points
emerge clearly:
(a) The interim arrangement comprised in the agreement would en-
1 South We~t Africa, Preliminary Objections, judgment, I.C.J. Reports p. 338.
2 Ibid., p. 339.
' Ibid., p. 342. COUNTER-MEMORIAL OF SOUTH AFRICA 159
able the Mandate to operate only in an "imperfect" manner, meaning
thereby, inter alia, incomplete ("as muchas it would be operable").
In the last-quoted passage such imperfection is related directly to
the disappearance of the organs exercising administrative supervi
sion. If this supervision had been transferred to the United Nations,
the imperfection would naturally have been cured. Itis, therefore,
difficult to imagine that the Court could have considered that there
had been such a transfer to the United Nations-either by the agree
ment under discussion or by any other agreement between Members
of the League of Nations at its final Session in April 1946, or any
agreement at the previously hcld conference resulting in the
foundation of the United Nations. Indeed, even disregarding the
specific reference to the League's supervisory organs, it would,
in view of the Court's finding that the compromissory clause sur
vived the dissolution of the League, be difficult to imagine in what
respect the operation of the Mandate could at ail be said to be
"imperfect" in the above sense unless the administrative super
vision fell away.
(b) The purpose of the agreement was, in the Court's view, not to
create new rights, but mercly to "main tain the status quo" or "main
tain the rights of Members of the League". Whereas an agreement
with this content could conceivably serve to perpetuate in favour of
States, in their individual capacities, the competence to invoke the
compromissory clause which had previously vested in them in their
capacities as Members of the Lcague, it obviously could not have the
effect of providing a new body to exercise administrative supervision.
By analogy, the highest effect it could possibly have had, wouid have
been to continue in favour of the States which constituted the Coun
cil at the dissolution of the League the rights of supervision which
had previously vested in the CounciL But obviously individual
Members could never exercise the functions of a body which had
bcen dissolved, quite apart from the practical difficultics created
by the disappearance of the Permanent Mandates Commission and
the Secretariat.
62. To sum up, both the conclusion and the reasoning of the Court
regarding the survival of Article 7, provide strong indication that Arti
cle 6 must, in the Court's view, have lapsed.
63. The Court's Actual Treatment of Article 6.
There is, to the contrary, a passage in the Judgment which may
possibly be read as signifying that in the Court's view the obligation
to report and account, as imposed on Respondent by Article 6, has in
1
some form or another survived the dissolution of the League . The
meaning of the passage is, however, far from clear, and Respondent
must respectfully confess to being wholly uncertain as to what the
Court intended to convey thereby regarding possible survival or other
wise of Article 6. The uncertainty arises not only from the fact that
the expressions "international supervision" and "the obligations con
nected with the Mandate", as used by the Court 2 are for the purposes
1
South West Africa, Preliminary Objections, Judgment, l.C.J. Reports z962, pp.
332-Ibid., p. 334.160 SOUTH WEST AFRICA
under consideration imprecise and somewhat obscure, but also and
particularly from the context and manner of treatment of the subject
in the Judgment. Thus:
(a) It is striking that the Court at no stage deals specifically with
the problems arising from the disappearance of the League's super
visory organs, and that no reference is made at any stage to the sug
gestion that supervisory functions were, after April 1946, to be
exercised by the United Nations. In fact, the impression is created
that any such reference is intentionally avoided. This appears
particularly from the passage quoted from the 1950 Opinion at
pages 333 and 334 of the Judgment, where every reference to the
United Nations has been deleted 1.
(b) The passage under discussion concludes with the following words:
"That the League of Nations in ending its own existence did not
terminate the Mandates but that it definitely intended to continue
them by its resolution of 18 April 1946 will be seen later when the
Court states its views as to the true effect of the League's final
act of dissolution on the Mandates 2."
In the later discussion referred to in this quotation, the Court holds
that the intention of the Members of the League at its final Session
was merely to continue the mandates in so far as they would be
operable after the dissolution of the League. In view of the Court's
finding that the compromissory clause survived the dissolution of
the League, the only respect in which there could in its view have
been inoperability after such dissolution, was, as has been demon
strated above 3, in that the provisions relating to administrative
supervision fell away. The reference in the above quotation to the
intention of the League of Nations in April 1946 would therefore
appear to indicate that the Court did not in the passage under
discussion • mean to express the view that the provisions relating
to administrative supervision somehow survivcd the dissolution of
the League.
64. In the result, in view of the above-mentioned uncertainties, no
1 The complete text of the passage is given below. The parts deleted in the quota
tion are italicized:
"The obligation incumbent upon a mandatory State to accept international
supervision and to submit reports is an important part of the Mand:Ltes System.
\Vhen the authors of the Covenant created this system, the}' considered that the
effective performance of the sacred trust of civilization by the mandatoryPowers
required that the administration of mandated territorieshould be subiect to
internationalsupervision. The authors of theCharte.rhad in mind th~ same necessity
wllen theyorga11izedan lntcrnationat Trustecship System. The necessily for super,
t•isinn continues to e1tisl despite the disappearance of the supervisory organ under
IM Mandates System. It cannot be admitted that the obligation to submit to
supervision has disappeared merely because the supl;'rvisory organ has ceased to
exi~t. whm the United Nations has another illternational organ performillg similar,
though not identical, supcrvisory /unctions."Unternationul Status of South-West
Africa. Ad,,i~ory Opinion, J.C.J. Reports x950, p. 136.)
2 South West Africa, Prelimina,y Obieclions, judgment, I.C.J. Reports x96z,
p. 334,
3 Vide para. 6r, supra.
4 South West A/rica, Preliminary Objections, judgement, I.C.J. Reports x962,
pp. 333-334. COUNTER-MEMORIAL OF SOUTH AFRICA 161
clear inference can be drawn as to the Court's view on the question
whether the League's supervisory functions regarding mandates have
been taken over by the United Nations-although Respondent submits,
for the reasons advanced, that on balance the reasoning is inconsistent
with such succession.
65. Separate Opinion of Judge Jessup.
Judge Jessup does not deal expressly with the survival or otherwise
of Article 6. He finds in regard to Article 7 that the competence con
ferred upon Members of the League remained available to ex-Members
of the dissolved League. Respondent's argument set out above 1, re
lating to the logical inconsistency between such a finding, and a finding
that the United Nations Organization has succeeded to the supervisory
functions of the League, would therefore also apply to this Opinion.
The reasoning whereby the learned Judge reached his conclusion re
garding Article 7 {irrespective of its soundness, with which Respondent
is not at the present stage concerned) is either inapplicable to the ques
tion whether Article 6 likewise survived the dissolution of the League,
or tends positively to contradict any possibility of a succession by the
United Nations to the supervisory functions previously performed by
the Council of the League. The survival of Article 7 is firstly based by
Judge Jessup on an interpretation of Article 7, and in particular, of the
expression "another Member of the League of Nations". In effect he
follows Sir Arnold McNair (in his dissenting opinion in 1950) in holding
that these words did not impose a condition, but were merely descriptive
of individual States, which acquired rights in their individual capacities.
It will be observed that this reasoning seeks to fi.nd, by a process of
interpretation of the expression "another Member of the League of
Nations", an entity capable of surviving the dissolution of the League.
Such entity (or entities) existed during the lifetime of the League in the
individual States concerned in their individual capacities. By no process
of interpretation, however, can the expression "Council of the League
of Nations" in Article 6 be interpreted in a sense which could have refer
red during the existence of the League, to any other entity than the
Council itself; and thus the learned Judge's line of reasoning with
regard to Article 7 cannot be applied to Article 6.
66. Secondly, Judge Jessup relies on a statement made on behalf of
Respondent on 9 April 1946, relative to the continuation of its obliga
tions under the Mandate. This statement contained the following sen
tence:
"The disappearance of those organs of the League concerned
with the supervision of mandates, primarily the Mandates Commis
sion and the League Council, will necessarily preclude complete
compliance with the letter of the Mandate 2."
Judge Jessup holds that this reservation did not affect Article 7, in
that:
(a) The Permanent Court had by express agreement been replaced by
the new Court prior to this reservation, and therefore its dis
appearance did not preclude complete compliance with Article 7;
2 Vide para. 60,supra.
L. ofN., O.J.,Spec. Sup.No. 194, p. 33; Chap. Il, para. 41 ((ii), supra.162 SOUTH WEST AFRICA
(b) the reference to "another Member of the League" in Article 7
was not affected by this reservation, because the Members of the
League were not "organs of the League" 1•
For present purposes it suffices to say in-this regard:
As to (a) above-
That the Council of the League had not, by agreement or otherwise,
been replaced, prior to the reservation, by any other body; and
As to (b) abovl}---
Tha t the· Council was one of the "Organs of the League" and was
expressly mentioned as such in the reservation contained in Respond
ent's statement of 9 April 1946.
It follows, therefore, that the statement could not have played any
role in effecting a substitution of the supervisory organs mentioned in
Article 6. On the contrary, it showed a clear contemplation of the
absence of such a substitution.
In certain portions of his opinion the learned Judge seems to accept
that there is a distinction between the frustration caused by the dis
solution of the League in regard to, on the one hand, Article 7 (where
the new Court was already in existence) as against Article 6 2where
·there had been no substitution of supervisory orgaris) •
67. Separate Opinion of Sir Louis Mbanefo.
· Sir Louis Mbanefo equally does not deal with the effect of the dis
solution of the League on the procedural obligations of the Mandatory.
As in the case of the other majority judges, his conclusion that ex
Members of the League would continue to be entitled to invoke the
compromisSory clause is, as.pointed out above, inherently inconsistent
with the concept of succession by the United Nations to the fonctions
of the Le3.gue. And his reasoning seems to emphasize the inconsistency.
Thus _hesays:
"Although the League was dissolved, the Mandate still continùes
and the rights and obligations embodied in it became, as it were,
maintained at the level at which they were on the dissolution of the
League. It is on this ground that the Respondent can justify its
right to continue to administer the territory and those States who
were Members of the League at the time of its dissolution the right
to con"tinue to invoke the compromissory clause of Article 7. The
right ·to invokè Article 7 remained vested in those States who
were Members of the League at the time of Ïts dissolution, and
contin3es notwithstanding the termination of the League's func-
tions ." - , . • •• •
Irrespective of the cogency of this argument nobody would be able to
say that the rights and obligations regarding supervision "becan:ie, as
it were, maintained at the level at which they were on the dissolution
of ,the League". As a result of the dissolution of the League the said
obligations could not be "maintained": there could be further supervision
only pursuant to a new obligation, relating to a new supervisory organ.
-In p~rticular, any suggestion that in respect of such obligations the
1 South Wesl A/rica, Preliminary Objecüons, Judgment, I.C.J. Reports I962,
pp. 418-419. '
2 lbid.,e~pecially pp. 413-414.
3 'lbid,,,p.-1445 COUNTER-MEMORIAL OF SOUTH AFRICA
organs of the United Nations replaced those of the Leagué would in
volve, not maintenance of existing obligations, but creation of new
obligations-and in fact different obligations in view of the difference
in composition, procedure and approach as between the organs of the
1
League and those of the United Nations •
68. Dissenting Opinions of President Winiarski, Judges Basdeva,;_t and
More/li and Declaration o/ Judge Spiropoulos.
None of the above-mentioned Judges dealt specifically with the ques
tion relating to the survival of Article 6, and no inference can be drawn
from their opinions as to their views in that regard.
69. Taking the Judgment and opinions on the Preliminary Objec
tions as a whole, therefore, it is submitted that they tend to support
Respondent's contention that there was no succession by any organ of
the United Nations to the functions formerly exercised by the Perma
nent Mandates Commission and the Council of the League of Nations
in regard to mandates not converted into trusteeships.
XI. CONCLUSIO:'.', REGARDING AGREEMENT IN 1945-1946 OR THEREAFTER
70. For the aforegoing reasons, it is submitted that there is no war
rant for finding that any agreement, express or implied, was entered
into at any stage, and particularly during the years 1945-1946, whereby
the supervisory funct1ons of the League of Nations with regard to
mandates not converted into trusteeships were transferred to the United
Nations Organization. This leaves, as a final topic in this Chapter, the
question whether an objective rule of law could have brought about
such a transfer.
E. Succession by Virtue of Sorne Objective Principle of International Law
71. Neither in the 1950 Advisory Opinion, nor in the Judgment and
opinions on the Preliminary Objections, has any Member of the Court
suggested the existence of any principle of succession which, operating
independently of the intention of the parties, could automatically effect
a substitution of the United Nations, its organs and/or Membership,
for the League of Nations, its organs and/or Membership. The only real
discussion of this topic is found in the dissenting opinion of Judge van
Wyk on the Preliminary Objections 2,where he finds that no such prin
ciple exists, citing, i"nteralt'a, Judge Levi Carneiro in the Ambatielos
case, as follows:
"Even when the organ which was formerly competent has been
abolished, its powers cannot be regarded as automatically trans
ferred to the new organ which replaces it 3."
And Judge Bustamante, in a passage of his opinion already quoted
above \ also in passing rejects ail possibility of either "automatic" or
"ex-officia" succession of the United Nations to the League of Nations.
1
2 Vide para. 21,supra.
South West A/rica, Preliminary Objections, judgment, I.C.j. _RP.por/s r960
pp. 603•604. .
' Ambatielos, Preliminary Objec!ion, judgmenl, I.C.J. Reports I952, p54.
• Vide para. 56,supNi. SOUTH WEST AFRICA
72. It will be recalled 1 that Applicants relied in their Observations
on the Preliminary Objections, on a "doctrine of succession", without
indicating the exact legal origin of such "doctrine". During the oral
proceedings regarding the Preliminary Objections, Respondent's Counsel
submitted that Applicants probably had in mind some term to be Îm·
plied in the Mandate itself. But he proceeded to deal also with the alter
native possibility that they meant to rely on some principle of inter
national law operating independently of the parties' intentions, and he
argued fully that no such principle existed 2• Thereafter, Applicants
did not again revert to any such suggestion in the Oral Proceedings.
73. In view, therefore, of the largely academic nature of the sug·
gestion of automatic succession, Respondent will confine itself to sub.
mitting that no such principle exists, either in customary international
law or in the general principles of law recognized by civilized nations.
F. Conclusions regarding the Procedural Obligations
74. Respondent contends that the Court will in this case, for the
reasons advanced above, conclude that Respondent's 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 and have
not heen replaced by obligations to submit to the supervision of any
organ of the United Nations or any other organization or body.
The acceptance of this contention would by itself provide a cornplete
answer to the Applicants' Submissions 7 and 8 3 and that part of Sub·
mission 2 4 relating to the supervisory fonction alleged to be exercisable
by the United Nations.
In addition, however, the lapse of the League's supervisory fonctions
raises the further question whether the Mandate was capable of further
existence to any extent whatever once such fonctions became impossible
of performance. Tlùs question is dealt with in the next Chapter, in
which it is submitted that the Mandate as a whole lapsed on the falling
away of League supervision.
1 Vide para. q, supra.
2 Vide Oral Proceedings, 5 Oct. 1962, morning.
3 Vid~ I, p. 198.
4
Ibid.,pp. 95, 197. CHAPTER V
THE LAPSE OF THE MANDATE AS A WHOLE
Part A
r. Whether the Mandate was capable of further existence to any
extent after the falling away of the provisions regarding administrative
supervision by organs of the League of Nations, is a question depend
ing in the ultimate analysis on the intentions of the authors of the
Mandate.
2. Itseerns to be a generally accepted proposition that there is nothing
notionally impossible in the idea of severability (or separability) of
treaties or institutions. In this regard Judge Jessup said in his separate
opinion on the Preliminary Objections in this rnatter:
"The princiyle of separability is now accepted in the law of
treaties,especially with reference to multipartite treaties, although
the older classical writers tended to reject it. It is a doctrine which
exists in municipal contract law (sornetimes under the label of
'divisibility') and in the law governing the construction of
statutes 1."
Judges Spender and Fitzmaurice, in their joint dissenting opinion,
stated the following:
"... there is in fact no principle of international law which requires
that because an instrument or institution survives or continues in
existence, it must necessarily do so with respect to all its parts on a
completely non-severable basis. The position is quite the contrary:
international law postulates no incompatibility between the survival,
or continued existence of an international agreement, organ or
institution, and a termination or cessation, on one ground or
another, of some particular part of it, or of particular functions,
rights or obligations provided for by it. This situation is indeed
rather a common one, and it quite often occurs that, for instance,
an instrument remains in force, but that some particular provision
of it ceases or has ceased any longer to be operative, because its
terms have becorne inapplicable, or because it is now impossible
of performance, or for some other reason.
If an inspection of a particular clause shows that, although an in
strument or institution survives as such, the clause concerned is no
longer possible of performance, or can no longer be applied accord
ing toits terms (as is the case with Articles 6 and 7 of the Mandate)
then the prima /acie conclusion must be that although the instru
ment or institution otherwise remains intact, that particular clause
is at an end.
The only circumstances in which it might be possible to maintain
the contrary, would be where the provision concerned was of so
1South West Africa, Preliminary ObiectioJudgment, I.C.]. Reports 1?62p.408.166 SOUTH WEST AFRICA
fondamental and essential a character that the instrument or
institution could not fonction without it 1."
Although the learned judges used the objective term "could not
fonction", it is submitted that they dearly did not intend to lay down
a purely mechanical test. An institution may, after dismemberrnent
of some of its parts, still be capable of perforrning some of its erstwhile
fonctions, although such performance may be entirely ineffective to
advance the purposes for which the institution was created. In such
a case, it cannot be said that the institution, as an institution-i.e.,
as intended by its founders-was still capable of functioning.
In order to determine whether any particular provision is of so
fondamental and essential a character that the instrument or institution
could not fonction without it, one must consequently have regard to
the type of institution which its authors intended to creatc. As it was
put by Viscount Haldane in Attorney-General for Manitoba v. Attor
ney-General for Canada and Others, referring to legislation which had
becn held partially ultra vires:
"Their Lordships agree with Duff J. in his view that if the Act is
inoperative as regards brokers, agents, and others, it is not possible
for any Court to presume that the Legislature intended to pass it
in what may prove to be a highly truncated form 2." (ltalics added.)
3. The question then is whether this Court can hold that the Man
date as a mandate can, having regard to the purposes intended for it
by its founders, still function in the "highly truncated form" which
resulted from the disappearance of the l\Iandatory's procedural obli
gations to report and account to supervisory organs of the League.
In the Preliminary Objections proceedings Respondent did not pur
sue this question, and indeed made no submissions in regard thereto,
inasmuch as the success of the Objections as presented did not depend
thereon. For purposes of its argument on the Objections, Respondent
was thus prepared to assume, without conceding, that the 1950 Advi
sory Opinion was correct in holding that the Mandate, as an institu
tion, survived the dissolution of the League 3. lnasmuch, however, as
Respondent also submitted then, as now, that there had been a com
plete lapse of the procedural provisions for administrative supervision,
the assumption of continued existence of the Mandate necessarily
carricd with it a further assumption, viz., that of complete severability
between the Mandatory's duty of report and accountability on the m~e
hand and other aspects of the mandate institution on the other 4• This
further assumption also accorded with Respondent's interpretation of
5
the 1950 Advisory Opinion • In the written Preliminary Objections
Respondent had stressed what might be termed the physical or mechani
cal severability of the procedural obligations from the substantive
1 South Wesl Africa, Preliminary Objections,Judgment, l.C.J. Reports I96z,
pp2 517-518.
3 1925 A.C. 561 (P.C.), at p. 568.
Vide I, pp. 299, 359; Oral Proceedings,2, 3 and 19 Oct. 1962Ifthe Judgment
on the Preliminary Objections is to be understood as suggcsting (at p. 332) that
Respondent contended positivelythat some aspects of the Mandate still exist, such
suggestion would be erroneous.
• Oral Proceedings, 3 and 19 Oct. 1962.
5Oral Proceedings, 3 Oct. 1962. COUNTER-MEMORIAL OF SOUTH AFRICA
1)bligations involved in the "sacred trust'' and "tutelage" 1 ;and in the
Oral Proceedings Respondent rendered clear that the question of ulti
mate severability, as related to the intentions of the founders of the
mandate system and institution, was left open, and that each of the
alternative answers to that question would equally suit Respondent's
case in support of the Preliminary Objections 2•The question now,
however, arises pe_rtinently for decision.
4. The administrative supervisory aspect of the mandate system
has always been considered of great importance. In this regard refer
ence has been made above 3 to commentators who emphasized that
the provision for League supervision was the factor d.ifferentiating
mandates from certain colonial regimes and from certain earlier inter
national conventions concerning the well-being and development of
under-developed peoples. As it was put by Wright:
"The distinctive feature of the system is undoubtedly the League's
supervision. The principles of trusteeship and tutelage have often
been avowed before and sometimes practised but only as self
limitations i_"
And in the 1950 Advisory Opinion the Court expressed itself as
follows:
"The obligation incumbent upon a mandatory State to accept
international supervision and to submit reports is an important
part of the Mandates System. When the authors of the Covenant
created this system, they considered that the effective perfonnance
of the sacred trust of civilization by the Mandatory Powers required
that the administration of mandated territories should be subject
to international supervision 5."
5. Expressions of opinion by various States further show the im
portance that has in practice been attached to these provisions. Thus,
e.g., the following statement was made by the delegate of the Nether
lands before the General Assembly of the United Nations on I November
:c947:"The mandate system now does not operate. As there is no longer a
supervisory authority, there is no longer a mandate system 6."
Of special significance also is the report of the United Nations Special
Committee on Palestine, referred to above 7,which contains the following
passages:
"It may be seriously questioned whether, in any event, the
Mandate would now be possible of execution. The essential feature
of the mandates system was that it gave an international status to
the mandated territories. This involved a positive element of
international responsibility for the mandated territories and an
international accountability to the Council of the League of Nations
on the part of each mandatory for the well-being and development
1 Vide I, p. 3r7.
i 0ml Proceedings, r9 Oct. 1962.
) Vide Chap. IV, paras. 3·5·
• Wright, op. cilp. 64.
' lnternational Status of South West A/rie a, Advisory Opinion, l.C.J. Reports r950, ·
p.6136.
G.A., 0.R., Second Sess.,Vol. I, 105th PlenaryMeeting, 1Nov. r947, p. 605.
1 Vide Chap. II, para. 59 (c).I68 SOUTH WEST AFRICA
of the peoples of those territories. The Pennanent Mandates Com
mission was created for the specific purpose of assisting the Council
of the League in this fonction. But the League of Nations and the
Mandates Commission have been dissolved, and there is now no
means of discharging fully the i·nternational obligation with regard
to a mandated territory other than by placing the territory imder the
International Tr-usteeship System of the United Nations 1." (Italics
added.)
and-
"The most the mandatory could now do, therefore, in the event
of the continuation of the Mandate, would be to carry out its adminis
tration, in the spirit of the Mandate, without being able to discharge
its international obligations in accordance with the intent of the
mandates system 1." (Italics added.)
It will be recalled that II States concurred in this report-Australia,
Canada, Czechoslovakia, Guatemala, lndia, Iran, the Netherlands, Peru,
Sweden, Uruguay and Yugoslavia. They had all been original Members
of the League, and would presumably have known what importance was
attached to the supervisory aspect by the founders of the mandate
system.
6. Various references were made to this matter in the Judgmcnt and
Opinions on the Preliminary Objections. Thus the authors of the Judg
2
ment, apparently referring to the provisions ofArticle 6 of the Mandate ,
said:
"The findings of the Court [i.e., in the 1950 Advisol'y Opinion] on
the obligation of the Union Government ta submit to international
supervision are thus crystal clear. Indeed, ta exclude the obliga
tions connected with the Mandate would be to exclude the very
essence of the Mandate 3."
And Judge Bustamante said:
"The tutelary organisation's right of supervision over the exercise
of the Mandate is an institutional rule in the Mandates System,
expressly provided for by Article 22 of the Covenant (paragraphs 7,
8 and 9). This right is not just an adjectival or procedural formality,
but an essential element on which adherence to the purposes of the
system and the etficiency of its application depend. Tt should not be
forgotten that in the Mandate agreements one of the parties, the
beneficiary under tutelage, has no possibility of entering into dis·
cussion with the other party, the Mandatory, on an equal footing,
having regard ta its lack of legal capacity. Thus, the only way of
safeguarding the rights of the people under Mandate is ta entrust
the supervision of the Mandatory's acts to the Mandator or tutelary
organisation which, on the one band, represents the ward and, on
the other, personifies the interest of the States of the world assembled
in an association. Absence of a supervisory organ would be tant
amount to unilateral and arbitrary exercise of the Mandate and
would inevitably lead to annexation. A Mandate so mutilated would
1 G.A ., O.R., Second Sess., Sup. No. rr, Vol. I (A/36p.,43.
2 Vide Chap. IV, para. 63, supra.
3 South West Africa, PreliminaryObjections, Judgmenl, I.C.J. Reports r96p. 334. COUNTER-1ŒMORIAL OF SOUTH AFRICA 169
be of an essentially ditferent nature /rom that provided for in Article
22 of the Covenant 1." (Italics added.)
7. Analysis of the history and wording of Article 22 of the Covenant
fully bears out, in Respondent's submission, that the feature of report
and accountability to the League was intended to be an integral portion
of the madate system, as will appear from the succeeding paragraphs.
8. As regards history, it seems clear that the various proposais 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 internationalization of the government
or administration of the colonies and territories in question. When
proposals came to be made for the establishment of a League of Nations,
the League was seen as the medium through which such internation
alization could be carried into effect, the various proposers differing,
however, as to the exact nature and degree of the authority to be
accorded to the League in this respect. The proposais in the various
drafts apparently ranged from, on the one hand, virtually complete
and direct powcrs of control for the League, to, on the other hand, a
supervisory function of a relatively indirect nature 2•
In the ultimate event, the supporters of the latter idea won the day 3;
but nevertheless the supervisory function remained an integral portion
of the whole scheme, as is evident also from the wording of Article 22
itself.
9. (a) The first paragraph of Article 22 sets out two things:
(i) the basic principle. to which effect was to be given in the system
devised for the colonies and territories in question, viz.. that the
well-being and development of their peoples form a sacred trust
of dvilization; and
(ii)that securities for the performance of this trust should be em-
bodied in the Covenant.
The paragraph can therefore be said to be an introductory state
ment of a basic principle or objective, together with an intimation
that the ensuing provisions would be directed towards the attain
ment thereof.
(b) The second paragraph sets out "the best method of giving practical
e{!ectto this principle". Here, then, we find the authors announcing,
in broad outline, their conception of the basic practical elements of
the system they wished to create. These were twofold, viz.:
(i) that the "tutelage" of the peoples concerned should be en
trusted to certain advanced nations, and
(ii) "that this tutelage should be exercised by them as Mandatories
on behalf of the League".
The notion of "Mandatories on behalf of the League" was therefore
integrally combined with the notion of "tutelage", as part and
parcel of the "best method" of giving practical effect to the basic
1 South West Africa, Preliminary Objections, Judgment, l.C.J. Reports I9p. 358.
2 ln regard to these aspects of the varions proposaisvideChap. II, paras.5 and
6, supra,and the authorities therc referred to.
3 Vide, e.g., the comment by l\!r. LloydGeorge in the Council of Ten on 28
Jan. I9l9, and by M. Hymans in his report of5 Aug. x920, in both instances as
cited in Chap. IV, paras. 9 and10,supra. 170 S01.rîH WEST AFRICA
principle of the sacred trust. The conclusion seems inescapable
that both notions were seen by the authors as essential elements of
the system they were devising.
(c) In the further provisions of Article 22, and in the mandate in
struments themselves, the "tutelage" notion was put into effect by
vesting in the Mandatories title and powers of administration,
subject to conditions obliging them to utilize the powers in the
interest and for the advancement of the underdeveloped peoples,
1
as noted above •
The only provisions whereby practical effect was sought to be
given to the notion of "1\Iandatories on behalf of the League", were
those requiring report and accountability to, and thus submission to
supervision by, the Council of the League, acting with the advice
and assistance of the Permanent Mandates Commission 2•
(d) In the result, the dissolution of the League brought about not
only a cessation of the notion of "Mandatories on behalf of the
League", but also of ail provisions whereby practical effect was
sought to be given to that notion, thus destroying completely
an element which the authors had intended to be an essential part
of the mandate system they were devising.
m. For the above reasons Respondent submits that the lapse of the
Mandatory's obligations to report and account to, and be supervised
by, organs of the League, has resulted in a situation which renders it
impossible for a Court to presume that the authors of the Mandate
would have intended it to continue in existence in such a "highly
truncated form".
II. In the 1950 Advisory Proceedings Sir Arnold McNair and Judge
Read, in their separate opinions, both found that the Mandatory's
obligations to report and account to organs of the League had lapsed,
without replacement relative to administrative supervision3by organs of
the United Nations or any other organization or body •Nevertheless
they both concluded that the Mandate remained in existence in other
respects 4•
The last-mentioned conclusion of the Ieamed judges appears, how
ever, to have been influenced, at least to some extent, by views taken
by them regarding the ambit and continued existence of the com
promissory clause in Article 7 of the Mandate. Thus Sir Arnold McNair
stated as follows:
"Although there is no longer any League to supervise the exer
cise of the Mandate, it would be an error to think that there is no
control over the l\!andatory. Every State which was a Member of
the League at the time of its dissolution still has a legal interest
in the proper exercise of the Mandate. The Mandate provides two
kinds of machinery for its supervision-judicial, by means of the
right of any Member of the League under Article 7 to bring the
Mandatory compulsorily before the Permanent Court, and admin-
1
2 VideChap. III,paras. 13-16.
Paras. 7 and 9 of Article 22,Article 6 ofthe Mandate for South West Africa
an3 corresponding articles in other mandates.
International Status of South West A frica, A dvisory Opinion, I.C.j. Reports r950,
pp. 159-162 (Judge McNair), pp. 169-173 (Judge Read) .
._Ibid.,pp. 146, 158,164-166, 169. COUNTER-MEMORIAL OF SOUTH AFRICA I7I
istrative, by means of annual reports and their examination by the
Permanent Mandates Commission of the League.
The J udicial supervision has been expressly preserved by means
of Article 37 of the Statute ofthe International Court of Justice ....1"
And Judge Read stated:
"With regard to the other factors which may have affected the
continuance of the international obligations of the Union, there is one
which cannot be overlooked. A territory, held under Mandate .by a
Member of the United Nations. is not left to the uncontrolled
administration of the Mandatory Power. In the present instance,
the Unîon, in the case of disputes relating to the interpretation
or the application of the provisions of the Mandate, is subject to
the compulsory jurisdiction of this Court-under the provisions of
Article 7 of the Mandate Agreement and Article 37 of the Statute,
reinforced by Article 94 of the Charter. The importance of these
provisions cannot be measured by the frequency of their exercise.
The very existence of a judicial tribunal, clothed with compulsory
jurisdiction, is enough to ensure respect for legal obligations 2."
12. In Respondent's respectful submission, however, the compromis
sory clause cannot be relied upon in support of a contention or view
that the Mandate remained in existence despite lapse of the administra
tive supervision. Before any finding could be made that the com
promissory clause filled the void caused by the lapse of Article 6, and
thus kept the Mandate alive, each of the following questions would
first have to be answered in the affirmative, viz.:
(a) Whether the clause was intended to provide for any supervisory
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 member
ship in the League, mentioned in the clause as a requisite for
invoking it.
Upon any one of these questions being answered in the negative, the
compromissory clause could have had no effect in preventing the lapse
of the Mandate. In Respondent's submission not only one, but ail the
questions are to be answered in the negative.
13. Since the majority members of the Court in the Preliminary
Objections proceedings held that the compromissory clause did provide
for some form of judicial supervision, it will be convenient first to con
sider question (b) above with reference to the type of supervision found
by the majority to have vested in the Court by virtue of Article 7 of
the Mandate. If Respondent's submission in this regard is accepted,
i.e., that such supervision was not of suffi.dent efficacy to prevent the
1 InternationalStatus of South West Africa, Advisory Opinion, I.C.J. Reports
z950,p. 158.
2 Ibid., p169. SOUTH WEST AFRICA
172
lapse of the Mandate on the falling away of administrative supervision,
it will be unnecessary to consider questions (a) and (c), both of which
involve a re-appraisal of issues that have been dealt with in the Judg
ment and opinions on the Preliminary Objections. These questions are,
however, for convenience and in so far as reconsideration may be
necessary, dealt with in alternative submissions contained in Part B of
this Chapter.
14. It is clear, in Respondent's submission, that in the view of the
majority members regarding the scope and purpose of the compromis
sory clause, it could not have been a satisfactory substitute for the pro
visions of Article 6 of the Mandate. Thus, although the Court in its
Judgment emphasized 1 that the purpose of administrative supervision
in terms of Article 6 and judicial protection in terms of Article 7 was
the same, i.e., to protect the inhabitants of mandated territories against
possible abuse or breaches of the Mandate 2, it is clear that it regarded
the two provisions as providing distinct and complementary machinery
for achieving this purpose. For the raison d'êtreof the compromissory
clause was, in the Court's view, not to serve as a siibstitute for the pro
visions regarding administrative supervision, but, on the contrary, to
provide a method of imposing on the Mandatory the view of the organs
exercising such supervision.
The Court's reasoning in this regard was to the effect that the Council
of the League-which was, in terms of Article 6 of the Mandate, vested
with the powers of exercising administrative supervision-required
unanimity for the passing of resolutions, and could therefore, by reason
of the Mandatory's right in terms of Article 4, paragraph 5, of the
Covenant to attend and vote at its meetings, not corne to a decision
adverse to the Mandatory without its consent 3• The main purpose of
the compromissory clause was, therefore, in the Court's view, to provide
machinery to overcome this defect in the provisions relating to ad
ministrative supervision, by enabling contentious proceedings to be
instituted against the Mandatory.
On this line of reasoning, it follows that the compromissory clause
was not intended to provide for the functioning of any independent
supervisory organ, but merely to supplement the provisions rcgarding
administrative supervision. Its function in this regard would necessarily
have fallen away on the dissolution of the League (which entailed the
disappearance of the League Council with ail its incidents) and it could
therefore not have served to act as a substitute for administrative
supervision.
15. However, on the Court's finding, Members of the League would
have been able to invoke the compromissory clause for the protection
of the rights of the inhabitants even in cases where no impasse existed
between the Council and the Mandatory. It seems evident that any
jurisdiction to determine such an issue would not render the Court an
effective substitute for the organs which had previously exercised ad
ministrative supervision. The obstacles in the way of regarding the
1 Sotttli West Africa, Preliminary Objections, }ttdgment, I.C.J. Reporp.344.2.
2 Ibid.,PP· 336, 343.
3 Ibid.,pp. 336-337. COUNTER-MEMORIAL OF SOUTH AFRICA 173
Court in this light are, it is respectfully submitted, clearly demonstrated
by Judge Bustamante in the following passage:
"... it cannot be said that the Court is a supervisory organ with
regard to the exercise of the Mandates, because its function is
strictly legal and not administrative or political, and because a
Court cannot on its own initiative institute supervisory measures,
its functions being èxercised only at the request of the parties,
which virtually negatives the effectiveness of the supervision 1."
A legal decision on a concrete dispute which cornes before the Court
only when a particular State wishes to institute action, can never be a
substitute for a continuous system of reporting and of supervisory pro
ceedings in administrative bodies. This applies a fortiori when it is
appreciated that the Court can, by virtue of its judicial functions, only
decide whether there has been a violation of the Mandate or not. It
can never even· approximately perform the role played by the Council
of the League and the Permanent Mandates Commission-organiza
tions with expert members, meeting regularly and capable of giving
advice and assistance on all aspects of Mandatory administration,
independently of any dispute or suggestion of violation of duty on the
part of the rviandatory. Thus the Commission itself considered that its
attitude towards the Mandatories should be that of "collaborators who
are resolved to devote their experience and their energies to a joint
endeavour". •
The Court, on the other hand, is-
"... unable to give any practical advice upon the various courses
which might be followed once it had defined the legal relations be
tween the parties with regard to the matter referred to it, since by
doing so it would dcpart from its judicial fonction 3".
r6. In Respondent's submission it is therefore clcar that the possi
bility of proceedings under the compromissory clause, even on the
widest suggested interpretation of the Court's powers thereunder, could
not have provided a substitute for reporti"ng and accountability and
administrative supervision, as contemplated by the authors of the
mandate system in providing that the tutelage should be exercised by
the advanced nations "as Manda tories on behalf of the League".
17. Conclusion.
(a) For the aforegoing reasons Respondent submits that the Mandate
as a whole must be held to have lapsed consequent upon the lapse
of the Mandatory's obligations of report and accountability to the
Council of the League.
(b) A contention that the Mandate as a whole has lapsed has, on
occasions in the past, resulted in the raising of the further questions
whether, in such event, Respondent would have to rely on a basis
other than the Mandate as such for a right or title to administer
the Territory of South West Africa' and if so, what that basis
would be.
1
South West Africa, Preliminary Objections, Judgment, I.C.]. Reports I962,
p. 361.
3 Vide Chap. Il, para. 20,supra.
Rosenne, S.,The International Court of Justic(1957}, pp. 63-64.
i Vide the statement of the Court in the 1950 Opinion that "To retain the rights
derived from the Mandate and to deny the obligations thereundcr could not be174 SOUTH WEST AFRICA
Such questions do not, however, fall to be considered for the pur
poses of the present case. Respondent only wishes to point out that,
given the premise that the procedural obligations were an essential
part of the Mandate, the mere fact of continued administration of
the territory by Respondent does not mean that the Mandate must
still be in existence, or, a fortiori, that the procedural obligations
must still exist despite inoperability in aécordance with their terms
and the absence of any adaptation to some new rnanner of operation.
On the contrary, the inoperability must, on the said premise of
essentiality, lead to the conclusion that the Mandate as a whole
has lapsed. And the de factu continued administration of the Terri
tory by Respondent must in law be an irrelevant consideration
as far as this conclusion is concemed, particularly where Respondent
does not daim, but on the contrary expressly disclairns, that its right
of administration is based on continued existence of the Mandate.
(c) Finally, whatever the situation might be as regards Respondent's
right or otherwise to administer the territory, a conclusion that the
Mandate as a whole has lapsed must in itself result in the dismissal
of the whole of the Applicant's case in the present proceedings,
inasmuch as that case is in law based entirely on averments that
the Mandate still exists and that provisions thereof have been
violated by Respondent.
18. In the event of the Court considering that the supervisOI}' fonc
tions held by the majority members on the Preliminary Objections to
have been exercisable by the Court, were of sufficient efficacy to have
been capable of prcventing the lapse of the Mandate on the falling away
of the provisions regarding administrative supervision, Respondent sub
mits that the compromissory clause was, contrary to the view of the
majority, not intended to provide for any supervisory fonctions over
mandates, and has, in any event, itself lapsed 1.
These submissions involve a reconsidcration of issues dealt with in
the Preliminary Objections proceedings, and Respondent's argument
in this regard is contained in Part Bof this Chapter.
justificd".(lnternationar Status of South West Africa, Advisory Opinion, l.C.J.
Reports r950, p.133.)
1 Vide para.12,sùpra. · Part B
A. INTRODUCTORY
r. For the reasons of possible relevancy indicated in the concluding
paragraph of Part A of this Chapter 1, Respondent in this Part sets out
its subnùssions with reference to the following matters:
(a) The scope and purpose of the compromissory clause.
(b) The effect of the dissolution of the Permanent Court of International
Justice on the com,Promissory clause. ·
(c) The effect of the dissolution of the League of Nations on the com
promissory clause. ·
B. THE ScOPE AND PURPOSE OF THE CüMPROMISSORY CLAUSE
2. The purpose of the present enquiry is to ascertain whether the
compromissory clause was intended to introduce any form of "judicial
supervision" at all. As pointed out above, the supervision held by the
majority of the Court in the Preliminary Objections proceedings to
have been exercisable in terms of the compromissory clause, was of a
very limited and imperfect nature • Whether the Court was vested with
even such a restricted type of supervisory fonction, would depend on
the nature of the conflicts or disputes which States were entitled to submit
toit for adjudication.
3. As a matter of logic, conflicts between parties are generally justi
ciable only when their rights or Iegal interests are involved. Courts of
law are not concerned with conflicts, differences of opinion or opposite
views unconnected with the rights or Iegal interests of the litigants. It
is submitted that the position is the same in international law. Interna
tional Courts exist for the adjudication and settlement of daims arising
from legal rights or legal interests, and are not there for judicial ex
pression on differences of opinion or on conflicts of views between States,
unrelated to their legal rights or interests. ·
The Court, of course, has a discretion to respond to a request for
an advisory opinion on any Iegal question, even though the question
may not involve legal rights of the organization or body which asks
for the opinion; but that is so by virtue of specific provisions in the
Charter of the United Nations 3 and the Statute of the Court~. Advisory
opinions are an exceptional form of process and the right to request
such an opinion is Iimited to the General Assembly, the Secùrity Council
·and other organs of the United Nations, and specialized agencies which
may be authorized by the General Assembly to make such a request.
States have no such right. In this respect, the position with regard to
advisory opinions was the same in the Permanent Court of International
1
2 No. 18.
3 Vide Part A, para. 15,supra.
Art. 96. .
4 Art. 65.176 SOUTH WEST AFRICA
Justice, also by virtue of express provision in the Covenan t of the League
of Nations 1 and the relevant Rules of Court 2.
4. There is no indication in Article 7 of the mandate instrument, or
in·any other part thereof, that the word "dispute" in the context of
the compromissory clause was intended to convey a notion other than
the generally accepted legal meaning, namely a disagreement or con
flict between the Mandatory and another Member of the League con
cerning the legal rights or legal interests of the latter in the provisions
of the Mandate 3•
The words "any" and "whatever" flanking the word "dispute" in the
Article, cannot give to the latter word a meaning wider than its ordinary
connotation in law.
5. Applicants rely heavily on the formulation of the meaning of the
4
word "dispute" in the Mavrommatis case • lt is submitted, however,
that the decision in that case supports Respondent's contention in thls
regard.
In the Mavrommatis case the Permanent Court of International
Justice, in dealing with Article 26 of the Mandate for Palestine (which
clause was identical to Article 7 of the Mandate for South West Africa),
defined the word "dispute" as "a disagreement on a point of law or fact,
a conflict of legal views or of interests between two persons" 5•
The Court was, however, careful in demonstratmg that the Applicant
had itself a right or legal interest in the_subject-matter of the dispute
then before the Court. Thus the majority of the Court said:
"It is an elementary principle of international law that a State is
entitled to protect its subjects, when infured by acts contrary to
international law committed by another State, from whom they
have been unable to obtain satisfaction through theordinarychannels.
By taking up the case of one of its subjects and by resorting to
diplomatie action or international judicial proceedings on his
behalf, a State is in reality asserting i'tsown rights-its right to ensure
in the person of its subjects, respect for the rules of international
law 6." (Italics added.)
In each of the five dissenting opinions in the said case, although
there is no direct statement to that effect, the reasoning of the individual
judges indicates a contemplation of a legal right or interest as a require
ment for locus standi of the Applicant, and consequently for jurisdiction
7
of the Court •
6. The question for determination therefore is what rights or legal
1 Art. 14.
2 Rosenne, op. cit.pp. 441-443.
3 Vide in this regardSouth West A.frica, Preliminary Objections, Judgment, I.C.J.
Reports 1962, pp. 455-456 (President Winiarski); p. 567 (Judge Morclli); pp. 550-551
(Judges Spender and Fitzmaurice); p. 659 (Judge van Wyk).
3 Vide 1, p. 89.
1\-lavrommatis Palestine Concessions, judgment No. 2, 1924, P.C.l.j .. Series A,
No. 2, p. II.
6 Ibid., p.12.
7 Ibid., pp. 42-43 (Lord Finlay); p. 61 (Judge Moore); pp. 77-81 (Judge de
Bustamante); p. 86 (Judge Oda); p. 88 (Judge Pessôa). These various passages are
quoted at I, pp. 378-379. COUNTER-MEMORIAL OF SOUTH AFRICA 177
interests vested in the Members of the League individually so as to have
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. This question must be answered primarily on a
construction of Article 22 of the Covenant and the mandate instruments.
Reference to these instruments discloses one obvious class of such
rights or legal interests. Each of the mandate instruments contained
provisions apparently intended specifically for the benefit of member
States and their nationals 1.These were, for example, the open door
provisions in all the A and B Mandates, and provisions in the C Mandates
relative to the frecdom of entry, movement and residence of missionaries
who were nationals of League Members. Then there were also contained
in the mandate instruments other provisions, primarily intendcd for the
benefit of the inhabitants, the non-observance of which could, howevcr,
affect alsothe material interests of individual League Members. Examples
would be the provisions with regard to the slave trade, and provisions
with regard to traffic in liquor which, if violatcd by a Mandatory, could
possibly affect neighbouring or cven other States which, bcing Membcrs
of the League, would then have a legal right to object. In respect of
these provisions, individual League l\Iembers would have been vested
with rights or legal interests eithcr bccausc the instruments clcarly
indicated an intention that such rights should vest in Members individu
ally, or because the impact of a violation of the terms of the Mandate on
the material interests of individual 1Hemberssuggests that it was intcnded
that such Mcmbers would be entitled as of right to resist such a vio
lation.
7. It has, however, been submitted by Applicants that Members of
the League possessed "a legal interest in seemg to it through judicial
proccss that the sacrcd trust of civilization created by the Mandate is
not violated" 2•The majority of the Court in the Preliminary Objections
3
proceedings adopted a similar view •
This submission, if accepted, would involve that the Permanent
Court possessed, subject to the limitations pointed out above 4. some
form of supervisory functions, and its correctness or otherwisc is accord
ingly of vital importance for present purposes. A consideration of its
validity requires an analysis of the nature and extent of the rights,
interests and fonctions of Members of the League in relation to those
provisions of the Mandates which concerned the benefit of the in
habitants of the mandated territories, in·circumstances where observ
ance or non-observance did not affect the material interests of individual
League Members, either directly or through their nationals. This again
depends on the correct construction of Article 22 of the Covenant and
the mandate instruments.
8. The basic scheme of the mandate system was that the Mandatory
would be answerable for its administration of the mandated territory
1Although in addition in the interestsof the inhabitants of the mandated
te2ri tories. •
3 I,pp. 91-92.
Vide South West Africa, Preliminary Obiections, judgment, 1.C.J. Reports I962,
PP, 336-337, 343-344; pp. 360-362, 374, 379-381 (Judge Bustaroante)p. 432 (Judge
Jessup): pp. 447-448 (Sir Louis Mbanefo).
• Vide Part A, para. 15,supra.178 SOUTH WEST AFRICA
to the League, i.e., either to a body having legal personality apart
from its Members, or to an association of States acti_ngcollectively in
accordance with a constitution (the Covenant) whlch regulated not only
the rights and obligations of Members inter se but also the procedures
whereby the organization could express its collective views or perform
its collective acts. Although the League Members would thus be entitled,
by virtue of their membership, to participate in the League's super
vision of the observance by a Mandatory of its obligations regarding
the administration of the mandated territory, such participation would
merely constitute the method whereby the League (whether as a separate
persona, or as an unincm:porated association) performed its functions.
If this incident of membership could be considered a right or legal
interest vesting in the Member, the content of this right or legal interest
would not enable a Member to exercise it independently from other
Members of the League, or otherwise than by taking part in the League's
activities in accordance with the Covenant.
9. Applicants' submission, however, involves an assertion that League
Members possessed additional rights or legal interests entitling each
of them, individually, if it considered that the Mandatory was not
observing its obligations towards the inhabitants, not only to raise the
matter in the League for its consideratiOn and attention, but also to
take it up directly with the Mandatory, and, failing satisfaction, to
institute contentious proceedings against the Mandatory with regard
thereto--even in cases which did not affect the material interests of
such Member at ail, either directly or through its nationals.
In Respondent's submission, the contents of Article 22 of theCovenant
and the mandate instrument seem to exclude the possibility that such
additional rights were intended to vest severally in each Member of the
League. The following indications appear particularly cogent, namely:
(a) The Mandate was to be exercised on behalf of the League only, and
not on behalf of the League and its Members .
(b) The consent of the Council of the League was required for modifi
cation of the terms of the Mandate, and not also the consent of the
Members of the League 2•
(c) Article 22 (1)of the Covenant provided that the securities for the
performanceofthesacred trust of civilization were to be embodied in
the Covenant itself. The only securities mentioned in the Covenant
relating to accounting bythe ~Iandatory,orto supervision ofits activi
ties, were those prescribed'in paragraphs 7 and 9 of Article 22, which
read as follows:
"7. In every case of mandate, the Mandatory shall render to the
Council an annual report in reference to the territory commit
ted to its charge."
"9. A permanent Commission shall be constituted to receive and
examine the annual reports of the Mandatories and to advise
the Council on ail matters relating to the observance of the
mandates.''
The Covenant did not ,Provide, or contemplate, any accounting by a
Mandatory for its admimstration of the Mandate to individual League
Members, the only provisions being paragraphs 7 and 9 providing for
1 Art. 22 (2) of the Covenant and Pri:-ambleto the Mandate.
2 Art. 7 of the Mandate. COUNTER-MEMORIAL OF SOUTH AFRICA 179
accounting to the League itself. Moreover, the Mandatory's annual
report had to be to the satisfaction of the Council. Individual League
Members had no say with regard to the nature and scope of the contents
of such a report.
Similarly there was no mention in any part of the Covenant of any
form of judicial protection of any right of supervision over Mandates
vesting m the Members of the League individually and enforceable
by thcm directly against the Mandatory. In the absence of any pro
vision to that effect in the Covenant, it is unlikely that Article 7 of the
Mandate was intended to establish a form of "judicial supervision",
or a form of judicial protection of such individual rights of supervision.
If it were so intended, one would have cxpected such intention to be
expressed in very dear terms.
The Court hcld in the Judgment on the Preliminary Objections, that-
"... Article 7, paragraph 2,is clearly in the nature of implementing
one of the 'securities for t1e performance of this trust', mentioned in
Article 22, paragraph I ".
The Court did not, however, meet the difficulty that Article 22 (1) pro
vided that such securities "should be embodicd in this Covenant".
Judge Bustamante, also did not meet this difficulty when he stated:
"The texts of the 'Declarations' or 'Mandate agreements' which
were issued immediately after the establishment of the League of
Nations contain a clause which does not appear in the text of
Article 22 ofthe Covenant, although it must in the spirit of the Covenant
be regarded as a necessary security /or the system. This is the 'com-
promissory clause' ... " (Ttalics added.) ·
If the authors of the mandate system regarded "judicial supervision"
as a necessary security for the system, it is difficult to understand why
they left it to the "spirit of the Covenant" instead of inserting it in the
let ter thcrcof as they did in regard to the other securities.
In the light of the factors set out in subparagraphs (a) to (c) above,
it would indeed be strange if, in the mandate instruments, it was inten
ded to confer on individual League Members a legal interest in the ob
servance by the Mandatory of its obligations, enforceable in the last
instance by recourse to the Court, in so far as such obligations affected
only the inhabitants of mandated territories. If that were the intention,
one would have expected it to have been stated in explicit terms.
ro. The conclusion reached in the preceding paragraphs upon analysis
of the actual provisions of the Covenant and the mandate instrument,
is also supported by the probabilities.
Supervisory fonctions with regard to the Mandates were, in express
terms, reserved not for the Assembly of the League but for the Council
-a particular organ of the League with limited membership-acting
with the assistance of another particular body, the Permanent Mandates
Commission. It could hardly have been the intention that in addition
to the supervisory fonctions of the Council each and every Member of
the League would, by virtue of an individual legal interest, stand in the
position of a custodian of the rights of the inhabitants of the Mandated
terri tories.
1 South West Ajl'ica, PYeliminary Objections, Judgmel.C.J.Reports r962, p. 344.
2 Ibid., p. 360.rSo SOUTH WEST AFRICA
One cannot conceive of the League intending, and the respective
Mandatories agreeing, that despite the express reservation of super
visory fonctions to the Council, individual League Members would be
entitled to assert legal rights with regard to the Mandatories' legislative
acts and administrative measures concerning the inhabitants of mandated
territories and,if necessary, to enforce such rights by judicial process.
The position of a Mandatory would have been extremely invidious
under such, circumstances. In accounting for its administration to the
Council of the League, it may have satisfied that body on all matters
affecting the inhabitants, but still an individual League Member, dis
agreeing with the Mandatory and with the unanimous view of the
Members of the Council, and perhaps even with all other Members of
the League, could, by virtue of its legal rights, seek to impose on the
Mandatory its own particular views as to the proper administration of
the ~fandate.
The Council's position in such circumstances would have been equally
invidious. The very conferment on individual League Members of powers
equal to, and concurrent with, those of the Council relative to mandate
administration would have tended to undermine the Council's authority
in that field.
II. A League of Nations publication makes it clear that the right
to take decisions in regard to Mandate questions belonged solely to
the Council of the League. It states as follows:
"During the discussion upon the Secretary-General's ann~al
report on the work of the League, it is permissible for any delegat10n
to draw the attention of the Assembly to some point in the chapter
concerning mandates and even to move that this chapter be referred
to one of the Assembly Committees where an exhaustive discussion
may ensue. . . . The discussrnn in the Assembly usually leads
to the adoption of a resolution laying stress on some particular
aspect of the discharge of the mandates, fonnulating some wish
addressed to the Council, the Mandates Commission or the manda
tory Powers, etc.
Thus, the rôle of the Assembly consists in the exercise of a certain
moral and very general influence in this domain. Its function may
be said to be to maintain touch between public opinion and the
Council.
The right to take decisions in regard to mandate questions belongs,
however, to the Council. It exercises its supervision with the aid of
the Permanent Mandates Commission, instituted by the Covenant
itself.
The Covenant provides that this Commission is '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'. It
is therefore essentially an advisory body~a body whose duty it is to
examine and report--designed to assist the Council in carrying out
its task. Its work is preliminary in character. Constitutionally, ithas
no power to take decisions binding on the mandatory Powers or to
address direct recommendations to them. Its conclu1ions are not final
until they have been approved by the Council ." (Italics added.)
1 The Mandates System-Origin-Principles-Application (1945),p. 35. COUNTER-MEMORIAL OF SOUTH AFRICA rSr
It is clear !rom this passage that the Permanent Mandates Com
mission, a body of experts provided for in the Covenant as an important
cog in the system of mandate supervision, was not entitled to address a
recommendation to a Mandatory, and even the Assembly composed of
ail the member States, could take no decisions in regard to mandate
questions. It could surely then not have been intended that an individual
League Member would have the right to decide for itself what measures
should or should not be adopted by a Mandatory, and then to assert a
right against the Mandatory in that regard-or, evcn more, to attempt
to dictate to a Mandatory the adoption of a particular policy. Applicants'
contention involves the possibility of such action by a League Member,
including ultimate judicial recourse, even where the measures or policy
advocated by such Member may have been considered unwise by the
Mandates Commission, outvoted by the Assembly and even rejected by
the Council of the League.
Furthermore, the Mandatory could stand in the midst of conflicting
demands upon it by diffcrent Members who do not see eye to eye with
the Mandatory and with each other as to policies to be applied in mandate
administration. One Mcmber could favour a particular policy, and
another Member an entirely different policy, and each of them would,
on Applicants' contention, be entitled to invoke the Court'sjurisdiction.
12. The anomalous position that could arise if a Mandatory were
subject to supervision both by the Council of the League and by
individual League Membcrs exercising individual rights enforceable
by legal process, was dealt with as follows by Judges Spender
and Fitzmaurice in their joint dissenting opinion on the Preliminary
Objections:
"We find it impossible to reconcile the view that Article 7relates to
disputes about the general conduct of the Mandate, with the super
visory functions given to the Council of the League under Article
6 of the Mandate. The conjunction would mean that although the
League Council might have been perfectly satisfied with the Manda
tory's conduct of the 1V1andateo,r might even have made suggestions
to the Mandatory about that, which the latter was complying with
and carrying out, any Member of the League not satisfied with
the Manclatory'sconduct, or not agreeing with the Council'sviews,
could have brought proceedingsbefore the Permanent Court under
Article 7.
There would have been an even more extraordinary possibility. A
Member of the League might, on some point relative to the conduct
of theI\.Iandate,have obtained from the Permanent Courta decision
which was not in fact in the best interests of the peoples of the man
dated territory--<lue,say, to lack of sufficient technical data before
the Court. Yet under Article 59 of the Statu te, the Mandatory would
have been bound by the decision, and obliged to apply it vis-a-vis the
inhabitants, although the Council of the League might have been
wholly opposed toit and itself not bound by it.
\Ve cannot believe it was ever intended that it should be possible
for such situations to arise, and in estimating this, one must, for
reasons we have given earlier in this Opinion, place oneself at the
point in time when these provisions, Articles 6 and 7, were being
drafted as designed portions of a coherent and integrated whole, 182 SOUTH WEST AFRICA
which the Mandate certainly would not have been if Article 7had had
1
the meaning attributed toit by the Court ."
13. A counter-argument advanced by the Court in its Judgment on
the Preliminary Objections, was that the purpose of Article 7 was to
make provision for a failure of the Coundl's supervision and thus to
add to the effectiveness of the Mandate. The argument was that in the
political activities of the Council, under Article 6 of the Mandate,
unanimity was required, and the Mandatory was entitled to partici
pate in the proceedings. The Mandatory could therefore block any action
by the Council. The Council could, however, not bring contentious
proceedings, and was limited to advisory opinions which did not bind
the Mandatory. Therefore, it was held, the right to bring contentious
proceedings was granted to individual Members of the League to enable
2
the will of the Council to be imposed on the Mandatory •
This argument was characterized by Judges Spender and Fitzmaurice
in their joint dissenting opinion as the one having "the least substance"
of "al! the arguments advanced in this case", i.e., the Preliminary Ob
jections proceedings 3• It is, in Respondent's respectful submission,
unsound for the reasons advanced in the succeeding paragraphs.
14. Firstly it is by no means settled law (as the authors of the Judgment
appear tosuggest) that the Mandatory's votecould prevent any resolution
of the Council. Respondent draws attention to the difference in the views
expressed in this regard by Judge Klaestad and Judge Lauterpacht in
their separate opinions in the Voting Procedure Advisory Opinion 4•
If a Mandatory could not block a Council resolution in the manner
suggested, the basis for the argument falls away. But the same result
fo!lows also on the opposite assumption. For if a Mandatory could block
a Council resolution, that would indicate that the whole purpose of the
authors of the Mandate was that the Council should not be able to impose
its will on the Mandatory. As expressed by Judges Spender and Fitz
maurice in their joint dissenting opinion:
"The very fact of the unanimity rule couplcd with the further fact
that under paragraph 5 of Article 4 of the League Covenant, the
Mandatory had to participate in the vote, shows that the system was
one which was intended to be worked by a process of discussion,
negotiation, and common understanding 3 ."
15. Moreover, if it had been the intention that the Council's will
should be able to be imposed on the Mandatory, one can hardly imagine
a more inept way of making provision therefor. If that had been the
intention, it would have been much easier and more direct to provide
explicitly that a Council resolution would be effective even if the Man
datory voted against it. This would then have the desired effect, i.e., to
enable the Council to pass a resolution without the consent of the Man
datory.
1 South West Africa, PreliminaryObjections, .fudgmenl, f.C ..f. Reports r96p. 553.
2 Ibid., pp. 336-337. Vide also the separate opinion of Judge Bustarnante at
p. 374.
l Ibid., p.520.
• Voting Procedure on Questions relating to Reports and Petitions concerning the
Territory of South West Africa, Advisory Opinion, !.C.J. Heports r955, pp. 85-36,
9S-ro6. COUNTER-MElllORIAL OF SOUTH AFRICA
The compromissory clause, on the other hand, is not suited at ail to
a purpose of enforcing the Council's will. The Council is not empowered
to invoke it, but on the contrary the suggested imposition of the Council's
wilt, is left to the chance possibility of action by an individual Member
of the League. If judicial process had been contemplated at all as a
method whereby the Council could impose its will on the Mandatory,
the obvious course would have been to grant powers to the Council
(excluding the Mandatory} enabling it to obtain a judgment binding on
the Mandatory 1.
Altematively, one would at least have expected some provision .
designed to effect co-ordination between the action of an individual
Member and the will of the Council, for example, express provision
that individual Members would have the right to obtain a judgment
enforcing a Council resolution, or a resolution which would have been
passed but for the Mandatory's dissentient vote. In fact, however, the
right of a Member of the League is defined without reference to any
thing occurring before the Council at all. It seems illogical to enable
Members to approach the Court without the Council ever having con
sidered a matter, if the purpose of the procedure was to enforce the
Council's will.
16. Another consideration tending to refute Applicants' submission
regarding the scope of the compromissory clause, is that, in exercising
any "judicial supervision", the Court could be called upon to give a
judgment on technical, political and administrative matters without the
assistance of the Permanent Mandates Commission and the other tech
nical assistants available for consultation by the Council or individual
Members thereof. In its decision, the Court could be called upon to
apply, inter alia, the wide and general provisions of Article 2 requiring
the Mandatory to "promote to the utmost the material and moral well
being, and social progress of the inhabitants of the territory". As put
in their joint dissenting opinion on the Preliminary Objections by Judges
Spender and Fitzmaurice:
"There is hardly a word in this sentence which has not now
become loaded with a variety of overtones and associations. There
is hardly a term which would not require prior objective definition,
or redefinition, before it could justifiably be applied to the deter
mination of a concrete legal issue. There is hardly a term which
could not be applied in widely different ways to the same situation
or set of facts, according to different subjective views as to what
it meant, or ought to mean in the context; and it is a foregone
conclusion that, in the absence of objective criteria, a large element
of subjectivity must enter into any attempt to apply these terms
to the facts of a given case. They involve questions of appreciation
rather than of objective determination. As at·present advised we
have serious misgivings as to the legal basis on which the necessary
objective criteria can be founded.
The proper forum for the appreciation and application of a
provision of this kind is unquestionably a technical or political
one, such as (formerly) the Permanent Mandates Commission,
or the Council of the League of Nations-or to-day (as regards
1 South West Africa, Preliminary Objections, Judgment, I.C.]. Reports520.z, p. SOUTH WEST AFRICA
Trusteeships), the Trusteeship Council and the Assembly of the
United Nations. But the fact that, in present circumstances, such
technical or political control cannot in practice be exercised in
respect of the Mandate for South West Africa, is not a ground for
asking a Court of law to discharge a task which, in the final analysis,
hardly appears to be a judicial one 1."
The functions of courts of law do not normally extend to the realm .
of politics; and where a legislature or an administrative body·acts with
in the scope of powers conferred upon it, it is not the function of courts
of law to enquire into the policy or soundness of its acts.
This general principle was recognized in the case of J erusalem-Jaffa
District Governor and another v. Murra and others, as being applicable
also in regard to the administration of the Mandated Territory of
Palestine under that Mandate. In regard to certain measures of ex
propriation applied by the Mandatory, the Privy Council stated:
"Their Lordships agree that in such a case, and in the absence
of exceptional circumstances, justice requires that fair provision
shall be made for compensation. But this depends not upon any
civil right, but (as the Chief Justice said) upon principles of sound
legislation; and it cannot be the duty of the Court to examine (at
the instance of any litigant) the legislative and administrative
acts of the Administration, and to consider in every case whether
they are in accordance with the view held by the Court as to the
requirements of natural justice 2."
\Vith regard to the functions of international courts, Rosenne states,
with reference to decisions both of the Permanent Court of International
Justice and of the present Court:
"In the first place, it cannot tao often b~ emphasized that the
Court is a court of justice and not of ethics or morals or of political
expediency. Its fonction is to 'declare the law'. Its pronouncements
are solelv concerned \vith the law as it is, and 'it is not for the Court
to pronounce on the political or moral duties' which its conclusions
on the law may involve ."
Respondent is mindful of the fact that legal questions are often en
compassed or intertwined with political issues, and that the jurisdiction
of the Court, if otherwise established, would not for that rcason be
ousted. It is, however, foreign to the essential nature and purpose of the
Court to entertain matters of a purely political character, and it is
unlikely that the authors of the Mandate intended that the Court should
perform such a fonction in the mandate system-ifthey intended that
the Court should, one would have expected very explicit language to
that effect ~.
17. In his separate opinion on the Preliminary Objections Judge
J essup refers to certain cases decided in the Supreme Court of the
1 South West Ajrica, Preliminary Objections, judgment, l.C.J. Reports :r962,
pp. 466-467.
2 ]erusalem-Jafja District Governor v. Suleiman }durra and others, 1926 A.C.
321, at p. 328.
3 Rosenne, op.cit.pp. 62-63.
• Compare the wording of the compromissory clauses in the MinoritieTreaties,
para. 21,infra. COUNTER-MEMORIAL OF SOUTH AFRICA
United States of America as support for the propositition that courts are
sometimes called upon to detcrmine whether particular laws or actions
comply with general broad criteria such as "due process", "equal pro
tection" and "religious freedom" .
Admittedly courts are sometimes called upon to apply vague for
mulae. It must, however, always be a matter of construction to deter
mine whether the formula concerned was intended to be applied by a
court or some other body. Where formulations are not only broad in
the extreme, but their application would require technical knowledge,
then formidable difficulties must always exist in coming to a conclusion
that a court was intended to have jurisdiction as an alternative to, or
concurrently with, an existing technical body specifically designed for
and charged with the application or administration of the provision in
question.
18. A further important factor in ascertaining the scope of rights of
League Members for the protection of which the compromissory clause
was designed, arises from the phrase "if it [the dispute] cannot be
settled by negotiation" 2• This is a clear indication that the type of
rights which were meant to be protected by Article 7, were such as would
be capable of settlement by negotiation between the Mandatory and the
other Member of the League concemed. In the words of Judges Spender
and Fitzmaurice:
"... a requirement that a dispute must be such as 'cannot' be settled
by negotiation, necessarily implies that it be of a type capable of
being so settled, and of being so settled by negotiation between
parties competent for that purpose. If a dispute coiûd not be settled
(i.e.,is inherently incapable of settlcment) by any kind of negotiation
at all between the parties before the Court, then clearly a require
ment that the dispute be one that 'cannot' be settled by negotiation
would be meaningless.
By 'settlement', we understand final settlement, and a final
settlement to us means a settlement negotiated between parties
having competence to settle the particular dispute in a final manner.
The question therefore arises, could the Applicant and Respondent
States, by negotiation inter se, settle in any way whatever a dispute
not relating to theîr own State or national rights or interests, but
belonging to the 'conduct of the Mandate' type-the sacred trust
could any settlement negotiated between single States, such as the
Applicant States and the Mandatory, settle any question relatîng
to the general conduct of the Mandate itself? Could any such settle
ment, arrived at between the Applicants and the Respondent alone,
bind any other State conceiving itself to have an interest in the
conduct of the Mandate-or bind the United Nations Assembly?
Obviously not-such a settlement might be wholly inacceptable to
these other entities ."
Settlement w.ith one or some States would not prevent others from
raising complaints relative to the matter settled.
1 South West Africa, Preliminary Obiections, jud~ment, l.C.J. Reports r96428..
2 Art. 7 of the Mandate.
, Scmth West Africa, Preliminary Obiections, Judgment, I.C.J. Reports r96551..
Vide also the dissenting _opinion of PresideWiniarski at p. 457.r86 SOUTH WEST AFRlCA
19. Similarly, if proceedings were brought and the Mandato.ry were
to be successful, such judgmcnt would be res judicata only for the
Applicant States 1•It would not bind any other States, who would be
able immediately to institute fresh proceedings on exactly the same
grounds. From the Mandato.ry's point of view there would thus be no
finality. On the other hand, a decision against the Mandatory would be
final and conclusive-at any rate, as far as the Mandatory itself was
concerned.
Such an anomaly could never have been intended by the authors of
the Mandate, and it suggests very strongly that the only disputes cog
nizable by the Court under Article 7 were disputes relating to a State's
maferial interests, which it could freely settle by negotiation-as against,
on the other hand, disputes pertaining to "the obligations of the Man
datory in relation to the 'sacred trust'" which were, in Respondent's
respectful submission, correctly held by Judges Spender and Fitzmaurice
to have been "of their nature not negotiable as between the Mandatory
2
and another State Member of the League" •
It is significant that the typical compromissory clause in the Minori
ties Trcaties 3 contains no provision regarding previous attempts at
settlement by negotiatîon 4.
The argument that disputes regarding the "sacred trust" provisions
were of their nature not capable of settlement by negotiatîon, was not
dealt with in the Judgment or opinions of the majority of the Court in
the Preliminary Objections proceedings.
20. When dealing with the ambit of the rights granted by the Cove
nant and the mandate instrument to Members of the League individually,
Judge Jessup stated as follows:
"International law has long recognized that States may have
legalinterestsin matters which do not affect their financial, economic,
or other 'matcrial', or, say, 'physical' or 'tangible' interests 5."
And:
"The question is not, therefore, whether one can conceive of a
treaty being concluded in such a spirit and with such results but
whether the Mandate was of this character 6."
Though Respondent is in respectful agreement with these statements, it
must be pointed out that in the treaties of the kind referrcd to by the
lcarned Judge, and in particular those concluded more or less contem
poraneously with the Mandate, very clear language was used to achieve
the unusual result of conferring legal rights or interests of the kind in
question on individual States.
As examples of such treaties, more or less contemporaneous with the
Mandate and containing compromissory clauses, Judge Jessup referred
particularly to the Minorities Treaties concluded after the First World
1 Art. 59 of the Statute.
2 South West Africa, Preliininary Objections, judgmenl,I.C.J. Reports I962,p. 552.
3 Ibid., pp. 425-426 (quoted by Judge Jessup).
• Vide para. 21,infra.
5 South West Africa, Preliminary Obfectians, judgmenl, l.C.J. Reports r962, p. 425,
6 Ibid.,p. 426. COUNTER-MEMORIAL OF SOUTH AFRICA
War, and to the Constitution of the International Labour Organisa
1
tion •
21. Dealing first with the Minorities Treaties, Article II of the
Treaty of Saint-Germain-en-Laye of ro September r9r9 (quoted at pp.
425-426 of Judge Jessup's separate opinion and which is typical of
Minorities provisions), read as follows:
"... any difference of opinion as ta questions of law or fact arising
out of these Articles between the Serb-Croat-Slovene State and
any one of the Principal Allied and Associated Powers or any ·other
Power, a member of the Council of the League of Nations, shall be
held to be a dispute of an international character under Article 14
of the Covenant of the League of Nations. The Serb-Croat-Slovene
State hereby consents that any such dispute shall, if the other
party thereto demands, be referred to the Permanent Court of
International Justice 2." (Italics added.)
It is significant that the States to whom legal interests were granted,
together with the concomitant right of invoking the Court's jurisdiction,
were limitcd to the Principal Allied and Associated Powers, and to
other Members of the Council of the League. Thcrc was no general grant
to all Members of the League of Nations, as, it is argued, the position
was with respect to Mandates. This limitation in the grant of legal
interests is all the more marked when one realizes that the Minorities
Treaties were imposed on the conquered nations and new States by the
conquerors, whereas the Mandates were substantially conferred upon
3
the conqucrors by themselves •
Is it then likely that the Great Powers would in these circumstances
voluntarily have granted in respect of Mandates, legal interests and
competence to invoke jurisdiction to a wider number of States than in
respect of the Minorities Treaties?
Moreover, the Minorities Treaties differ from the Mandates also in
another significant respect. The language employed in the Minorities
Treaties in order to make provision for the exercise of legal interests
bv other States is entirely clear and unambiguous. It is diffi.cult to ima
gfoe that the authors of the Mandates would have used much less cxpli
cit language to achieve a more far-reaching result. It is also important
to note that the compromissory clause in the Minorities Treaties did
not contain a provision regarding previous attempts to settle the dispute
by negotiation between the parties.
22. In another context Judge Jessup made further use o_fprovisions
of certain Minorities Treaties as follows:
"It has been urged that those who concluded the Mandate agree
ments could not have intended the meaning of Article 7 (2) which
has just been stated, because they would have wished to avoid the
1
South West Africa, Preliminary ObfecJions, Judgment, l.C.J. Reports I962,
pp2 425-43 2; particularlypp. 429-430.
Vide also Hudson, M.O., International Legislation (193r), Vol. I, p. 319.
3 Vide South West A/rica, Preliminary Objections, Judgment, J.C.j.Reports r962,
pp. 452-453 (dissenting opinion of President \Viniarski);and also Jessup, P.C., A
Modern Law o.f·Nations (1959), p. 89, where the leamed author states as follows:
"But the minorities treaties were obnoxious largely because they carried
the stigma of imposition upon small states by the great powers, who were
unwilling to accept like obligationsin their own territories."188 SOUTH WEST AFRICA
confusion and conflict which it might have entailed between the
respective roles of the Council of the League and the Permanent
Mandates Commission on the one hand, and the Permanent Court
of International Justice on the other hand. The Permanent Court
disposed of a comparable objection in connection with the Minorities
treaties which contained provisions both for invoking action by the
Council and for submitting a case to the adjudication of the Court.
(Settlers of German Origin, Series B, No. 6 (1923), pp. 21-23; Upper
Silesia (Minority Schools), Series A, No. 15 (1928), pp. 19-25.) And
to the same general effect, although with certain differences of
treaty terms, Statute of the Memel Territory, Series A/B, No. 47
(1932), pp. 248-249 1."
The Selliers of German Origin case does not in Respondent's respectful
submission, appear relevant. In that case the Court was dealing with
the possible conflict between the right of the Council to refer the matter
to the Court for an advisory opinion, and the right of certain Powers
to institute contentious proceedings. In other words the Court was
dealing with two different ways of bringing the same question before
the same tribunal, and not ,vith different ways of bringing the same
question before two different tribunals.
The two other cases referred to by Judge Jessup arc comparable,
but the dissimilarities between the Minoritics Treaties dcalt with in
them and the Mandate are so striking that they tend rather to support
Respondent than otherwise. Like the Treaty of Saint-Germain-en-Laye,
referred to above, the language of these treaties was entirely clear, and
their interpretation could hardly have been affected by any anomalies
that might have arisen on their application. And in fact there was
hardly any scope for the type of conflict between the fonctions of the
Council of the League and the Permanent Court as would arise in the
case of mandates if Applicants' interpretation of Article 7 were to be
correct. Contentious proceedings could in terms of both these Treaties 2
also be instituted only by Members of the Council of the League •
In view of the fact that Council decisions could be arrived at onlv
by a unanimous vote, the possibility of conflict between the will of thve
Council and that of the State instituting judicial proceedings was thus
virtuaUy excluded.
23. The second example, referred to by the learned judge, of a treaty
granting to States legal rights enforceable by judicial process in matters
in which their material interests were not concerned, derives from the
constitutioh and operation of the International Labour Organisation.
From his discussion of this topic, he concluded:
"... that a State may have a legal interest in the observance, in the
territories of another State, of general welfare treaty provisions
and that it may assert such interest without alleging any impact upon
its own nationals or its direct so-called tangible or material interests.
The operation of the International Labour Organisation further
1 South West Africa, Preliminary Objections, Judgment, I.C.J. Reports r96432..
2 Vide Art. 72 (3) of the German-Polish Convention of 15 May 1922, quoted
in Rights of Minorities in Upper Silesia (Minority Schools), Judgment No. I2, r928,
P.C.I.J.,Series A, No. IS, p. 80, and Art. 17 of the Convention of 8 May 1924,
quoted in Interpretation of the Statute of the Memel Territory, Preliminary Objection,
jttdgment, r932, P.C.!.].Series A/B, No. 47, p. 247. COUNTER-MEMORIAL OF SOUTH AFRICA 189
indicates that disagreements over the observance of general welfare
provisions may be the subject of judicial investigation and of ulti
rnate resort to this Court 1.''
Respondent is, however, not prepared to concede that the Interna
tional Labour Organisation, and the conventions which it has brought
into effect, were motivated solely by a humanitarian "interest which ail
States have in 'humane conditions of labour' in ail other States" 2•
Thus States have always considered international regulation of labour
condüions a necessary prerequisite to an improvement at the national
level, since unilateral raising of standards by any State would raise
costs of production and consequently put such a State at a disadvantage
in international competition 3• That this attitude played a vital role
in the formation of the International Labour Organisation, can be seen
from statements made more or Jess contemporaneously with its founda
tion by leaders from various countries. Thus, for example, a memo
randum prepared in January 1919 by members of the British delega
tion to the Paris Peace Conference contained the following passage:
"One of the fondamental abjects of conventions as to labour
conditions is to eliminate unfair competition based on oppressive
conditions or working. Any State, therefore, which does not carry
out a convention designed to prevent oppressive conditions, is
guilty of manufacturing under conditions which crea4e a state of
unfair competition in the international market ."
This same cconomic consideration was expressed in the preamble to
the Constitution of the International Labour Organisation, which con
tains the following paragraph:
"Whereas also the failure of any nation to adopt humane condi
tions of labour is an obstacle in the way of other nations which
5
desire to improve the conditions in their own countries ."
It is therefore not surprising that the Constitution provided means
whereby a State could enfo:fce compliance with conventions to which
both it and an allegedly non-complying Member were parties 6• Such
non-compliance would clearly benefit the non-complying State in its
competition with complying States-a situation affecting the material
interests of the States concerned and/or their nationals. In this regard
there is no comparison with the position said to exist under the man
dates, where it is contended that a right of compulsory jurisdiction was
granted to States also in respect of matters in which neither their own
interests nor those of their nationals were involved at ail.
24. For the reasons aforestated, it is submitted that a comparison
between the provisions of the Mandate and those of the Minorities
Treaties and the Constitution of the International Labour Organisation
1 South West Africa, Preliminary Objections, judgment, I.C.J. Reports r962,p.428.
z Ibid.,p. 429.
3 Vide Shotwell, J. T. (ed.), The Origins of the InternationalLabor Organization
(1934). Vol. 1, p. 4; The International Labour Organisation: The First Decade
(1931), pp. 29 31.
i Vide Shotwell, op. cit., Vol. Il, p. 125; vide also Vol. I, p. 118. Similar statements
may be found in various other parts of this work, such as, e.g., Vol. I, p. 86, as well
as in Périgord, P., The InternationalLabor Organization (1926).
5 The International Labour Organisation: The First Decade, p. 367.
6 Vide Art. 4II (of the Treaty of Versailles), later renumbered26. SOUTH WEST AFRICA
strengthens the conclusion that the Mandate was never intended to
grant rights or legal interests in respect of the "sacred trust" obligations
to individual Members of the League, save in so far as their material
interests could be affected by a breach of these provisions by the Man
datory.
25. The conclusion reachcd above with reference to the provisions
of the Covenant and the mandate instruments as well as the probabilities,
is further supported by the history relating to the framing of the
mandates.
It will be recalled that the compromissory clause originated in a
draft for the B Mandates submitted to the drafting Mandates Commis
sion by the representative of the United States of America, which draft
made elaborate and detailed provision for commercial and other rights
to be conferred on, and for the benefit of, State l\lembers of the League
of Nations and their nationals. fn its original form it rendered not only
the l\landatory but ail State Members of the League subject to the
jurisdiction of the Court in disputes concerning the interpretation or
application of the Mandate provisions. This feature persisted throughout
the later drafts of the Commission, and indeed also in the draft submitted
1
by the Principal Powers to the Council of the League .
The only reason for the amendment thereupon brought about by the
Council of the League whereby the l\iandatory, and only the l\fandatory,
would be obliged to accept the jurisdiction of the Court, was the con
sideration that other League l\Iembers could not, without their consent,
be subject to the jur:isdiction of the Court 2•If the purpose of the com
promissory clause was to effect some form of judicial supervision, there
does not seem to be any reason why it should tnitially have been drafted
in a form which permitted the M andatory to institute proceedings
against other Members of the League, and which pcrmitted one Member
of the League to institute proceedings against another Member, even
where neither was the Mandatory in respeçt of the particular mandate
concerned.
Furthermore, if the Powers represented on the Council were so
scrupulous of the right of member States not to be bound without
their express consent, it is difficult to believe that they would, on their
own and without an explicit statement to that effect, have changed what
was intended to be an ordinary compromissory clause into a clause
providing for a form of judicial supervision over mandate administra
tion 3_
The historical survey also shows that discussion in the Mandates
Commission of the draft provisions of the adjudication clause ,vas con
fined to the operation thereof relative to the rights which were to be
conferred on, and for the benefit of, member States and their nationals 4.
Originally it was intended that the rights granted to nationals of mem
ber States would be justiciable also at the instance of individuals. This
was changed to render these rights justiciable only at the instance of
States-this change being given effect to by having (except in the case
1 Vide Chap. Ir, paras.12 and 15, supra.
2 Ibid., para. 16, supra.
3 Vide South West Africa, Preliminary Obfections, Judgme,zt, I.C.j. Reports r962,
p. 453 (President Winiarski).
• Vide Chap. II, para.12, supra. COUNTER-MEMORIAL OF SOUTH AFRIC.-\ 191
of Tanganyika) a clause consisting of only one paragraph as finally
drafted and approved of by the Council of the League 1• Throughout the
discussions, there was a significant absence of any mention or even
suggestion that the clause was intended to constitute a form of judicial
supervision for the benefit of the inhabitants of mandated territories.
26. The anomalous so-called Tanganyika-clause has been used in
argument, inter alios, by Judge Jessup against the contentions advanced
2
by Respondent •
The Tanganyika-clause alone contains, in addition to a first para
graph identical to the whole compromissory clause in Article 7 of the
South West Africa Mandate (and in ail other Mandates), the following
paragraph:
"States Members of the League of Nations may likewise bring
any daims on behalf of their nationals for infractions of their rights
under this mandate before the said Court for decision."
It is not argued by Judge Jessup that the explicit provision for daims
on behalf of nationals in the Tanganyika-clause, indicates that the com
promissory clauses in other Mandates do not cover such daims. Indeed
this point is left open by him. ln the Mavrommatis case it was clearly
held that the compromissory clauses in othcr Mandates did cover such
daims 3•
Judge Jessup's point is, however, that the compromissory clauses in
other Mandates:
"... must include something other than or in addition to the daims
of nationals or else the East African Mandate would have omitted
paragraph I because paragraph z would have covered the field 4".
This conclusion does not, in Respondent's respectful submission, take
the matter any further. It has never been suggested that the compromis
sory clause in Article 7 of the Mandate applied qnly to daims by States
acting on behalf of their nationals. ln addition it clearly covered daims
involving the rights of States themselves.
Judge Jessup continues, however, as follows:
"The language of paragraph 2 of Article 7 of the South West
Africa Mandate is very broad indeed and there is no evidence that it
is limited to matters in which otherStates might havea 'public'concern,
as for example the interest of a neighbouring State in the control
of the traffic in slaves, arms, or liquors 5." (Italics added.)
This logic is, with respect, difficult to follow. Judge Jessup himself
bas not positively disputed that paragraph 2 of Article 7 may include
daims on behalf of nationals. Nobody has therefore suggested that il
should be limited to matters of public concern-the question is whether,
in addition to daims on behalf of nationals, it would cover matters of
public concern only, or whether it would have a still wider import. If
1
Vide Chap. II, para. 12, supra. 'Vide also generally the dissenting opinion of
Judges Spender and Fitzmaurice in South West Africa, Preliminary Objections,
Judgment, I.C.J. Reports r962, pp. 554-559.
zSouth West Africa, PreliminaryObjections, Judgment, I.C.J. Reports r962, p. 431.
3 Mavrommatis Palestine Concessions, Judgment No. 2, r924, P.C.!.]., Series A,
No. 2.
4South West Africa, Preliminary Objections, Judgment, I.C.J. Reports r962, p.431.
5Ibid., pp. 431-432.192 SOUTH WEST AFRICA
the learned Judge intended to suggest that the language is so broad that
it must extend beyond both "daims on behaU of nationals" and "mat
ters of public concern", the relevance of the Tanganyika-clause is not
readily apparent 1•
27. A further significant fact in favour of the construction of Article
7 advanced by Respondent, is that prior to the present Applications no
State has ever attempted to bring any application to the Court on be
half of the inhabitants of any mandated tcrritory, and this so despite
the fact that in the League of Nations period 14 mandates were in
force for ovcr 25 years. The only case arising from the mandates, i.e.,
the Mavrommatis case~. dealt with the situation where a Member
of the League espoused the cause of one of its nationals.
In Lcague circles generally there never seems to have becn any con
templation of any judicial supervision. ln the words of President
\Viniarski :
"The Applicants rely on the views of certain jurists in favour
of a general supervision to which any Member of the League could
subject any Mandatory by bringing it bcfore the Permanent Court of
International Justice.
And yet l\fr.van Rees, one of the most active members, and
Vice-Chairman of the Permanent Mandates Commission, says
nothing in his book Les Mandats internationaux, Vol. I, Le contr6le
international de l'administration mandataire (Paris, 1927), about this
judicial supervision by the Permanent Court of International
Justice claimed to be able to be brought into operation by any
l\Iember of the League. Even more significant, the official publica
tion The Mandates System-Origin-Principles-Application which
the League put out in 1945 with a preface by the Acting Secretary
General. l\fr.Sean Lester, is also silent on the subject of this alleged
role of the Court, àlthough it contains a passing reference to the
jurisdictional clause; yet such a role, if providcd for, could not
have escaped the attention of the authors. Jf in League quarters
such as the Council, Secretariat and Permanent Mandates Commis
sion judicial supervision was contemplated even only as a possi
bility provided for in extreme cases by the international agreements,
the fact that we find no mention of it in these two books is inexpli
cable. If in the time of the League, when the framers of the Cove
nant and the Mandates, and their associates, were still alive,
judicial supervision such as the Applicants put forward found no
authoritative proponent, it may be taken as evidencc that matters
were not seen in this light 3."
28. The authorities, scholarly and judicial, relied upon by Applicants
were dealt with by Respondent in its Preliminary Objections\ and in
1 Vide, in regard to the Tanganyika-clause,also the dissentingopinion of Pre
sident Winiarski(at pp. 453-454). and the joint dissenting opinion of Judges Spender
and Fitzmaurice (at pp. 559-560).
2 1kfa11rommatisPalestine Concessions, Judgment No. z, I9z4, P.C.I.].Series A,
No. z.
3 South West Africa, Pretiminary Objections, Judgment, I.C.J. Reports I96z,
pp. 451-452.
4 Vide I, pp. 389-394. COUNTER-MEMORIAL OF SOUTH AFRICA 193
the Oral Proceedings 1, and it is not necessary to repeat the discussion
here. None of these authorities were of particular cogency. The most
pertinent and weighty scholarly authority on the subject which has up
to the present been quoted in these proceedings is, in Respondent's sub
mission, the opinion expressed by Professor Feinberg at The Hague
Academy of International Law in 1937, as follows:
"Like most of the writers who have, in their works, expressed a
view on the question, I consider that the judicial settlement clause
does not confer on Members of the League of Nations the right
unilaterally to bring a Mandatory Power before the Court except
in cases where they can allege the violation of some right of their
own or some injury to the interests of their nationals. This inter
pretation would seem tome to be entirely correct and in conformity
with the general scheme of the Mandates System. It is indeed
difficult to imagine that, by the inclusion of the judicial settlement
clause in the text of the Mandates, itwas intended to give each
Member of the League of Nations a power so extensive that it would
enable itto set itself upas a censor of the Mandatory's administra
tion. The aim pursued was certainly a more limited one; it was
desired to secure compulsory reference to the Court of all conflicts
which might arise as a result of the non-performance of obligations
assumed by the Mandatory, under the Mandate, in relation to
other Members of the League of Nations 2."
29. For the reasons aforestated, it is submitted t~at the Permanent
Court did not possess any fonction of judicial supervision in respect of
Mandates, since its competence was limited to deciding disputes relating
to the rights or legal interests of Members of the League in the Mandate,
and Members did not individually possess any right or legal interest in the
observance by the Mandatory of the conditions imposed in the Mandate
for the benefit of the inhabitants of the territory except in cases where
the breach of thcse obligations affccted the material interests of individual
League Members, either directly or through their nationals.
· For this reason alone, therefore, it follows that the compromissory
clause could not have played any role in preventing, or assisting to
prevent, the lapse of the Mandate on the falling away of the supervisory
functions of the League Council.
C. THE EFFECT OF THE DISSOLUTION OF THE PERMANENT COURT OF
INTERNATIONAL JUSTICE ON THE COMPROMISSORY CLAUSE
I. I ntroductory
30. If Respondent's submissions in section B of this Chapter as to
the scope of the compromissory clause are not accepted, the further
contention is advanced that in any event the compromissory clause has
itself lapsed, and for that reason also cannot serve to keep, or assist in
keeping, the Mandate in existence. Two reasons. will be advanced ,vhy
the compromissory clause has lapsed, viz., firstlythat on the dissolu-'
1 Oral Proceedings,10 Oct.1962.
2 Quotcd by President\Viniarskiin South West Africa, Preliminary Objutions,
Judgment, I.C.J. Reports r96z, p. 455. 194 SOUTH WEST AFRICA
tion of the Permanent Court there was no judicial body vested with
jurisdiction to hear disputes arising from the provisions of the Mandate,
and, second/y, that on the dissolution of the League of Nations no
States possessed the qualification (i.e., membership of the League) re
quired for invocation of the Court's jurisdiction in tenns of Article 7.
The former basis will be dealt with in this section, and the latter in the
next succeeding section.
31. Article 7 of the Mandate made éxpress provision for submission
of disputes to "the Permanent Court of International Justice provided
for by Article 14 of the Covenant of the League of Nations". No sug•
gestion has ever been made that any process of interpretation of the
Mandate, or the implication of terms in it, could have produced a
result whereby any other organ was or could be substituted for the
Permanent Court. Reference has been made to the dissolution of the
Permanent Court • The effect of this dissolution would clearly be to
render the provisions of Article 7 inoperable, unless some new provision
was made for the substitution of another judicial organ for the defunct
Permanent Court.
Applicants rely on Article 37 of the Statute of this Court as making
such new provision 2•
Article 37 reads as follows:
. "Whenever a treaty or convention in forceprovides for reference of
a matter to a tribunal to have been instituted by the League of
Nations, or to the Permanent Court of International Justice, the
matter shall, as between the parties to the present Statute, be
referred to the International Court of Justice." (Italics added.)
Article 37 therefore provides for a substitution of Courts only for
the purposes of compromissory clauses contained in treaties or conven
tions in force. Other instruments are not affected by the terms of this
Article.
Respondent's submission in this section will be tha.t Article 37 is
inapplicable to the circumstances of this case in that the Mandate
never was, or at any rate, on dissolution of the League ceased to be,
a "treaty or convention in force".
II. Definition of Treaty or Convention
32. In his separate opinion on the Prelimina.ry Objections,Judge
Jessup states the following:
"The notion that there is a clea.r and ordinary meaning of the
word 'treaty' is a mirage. The fundamental question is whether a
State has given a pronùse or undertaking from which flow inter
national legal rights and duties 3_"
For the purposes of this argument Respondent is prepared to assume
the correctness of this proposition (despite strong authority in favour
of a more limited meaning) • provided one point is kept in nùnd, namely
1 Vide Chap. II, para42, supra.
2 Vide I, p. 88.
s South West Africa, PrcliminaryObjections, Judgment, I.C.J. Reports r96402..
• Ibid., pp. 475-476 (dissenting opinion of Judges Spender and Fitzmaurice). COUNTER-MEMORIAL OF SOUTH AFRICA 195
that the concept of a promise or undertaking involves at least two
parties, i.e., a promisor and a promisee. Thus the promise or under
taking will not give rise to an international treaty relationship unless
accepted (or deemed to be accepted) by the promisee. Consensus between
the parties is always required. It is submitted that this proposition
appears clearly or implicitly !rom the authorities quoted by the learned
.Judge.
Thus the learned Judge discusses the formalities required for treaties,
and concludes that oral agreements would suffice.
He proceeds to state:
"It is also generally recognized that there may be unilateral
agreements, mcaning agreements arising out of unilateral acts in
which only one party is promisor and may well be the only party
1
bound ."
The expression "unilateral act" may give rise to some confusion.
An agreement can, in the strict sense, never be constituted by a uni
lateral act alone. Although only one party may be the promisor, the
acceptance express or implied of the 2romisee is required. Thus, for
instance, in the Free Zones case the "unilateral manifesto" issued
by a domestic Sardinian organ was treated as follows by the Court:
"This Manifesta, moreover, which was issued in pursuance of
royal orders, following upon the favourable reception by H.M. the
King of Sardinia of the request of the Canton of Valais based on
Article 3 of the said Treaty of Turin, terminated an international
dispute and settled, with binding effect as regards the Kingdom
of Sardinia, what was henceforward to be the law between the
Parties. The concord of wills thtts represented bythe Manifesta confers
on the delimitation of the Zone of Saint-Gingolph the character
of a treaty stipulation which France must respect as Sardinia's 3
succcssor in the sovereignty over the territory in question ."
(Italics added.)
It appears clearly therefore that this "unilateral manifesto" was
treated as having the character of a treaty stipulation because it repre
sented the concord of wills of the parties.
Respondent does not propose discussing the various authorities in
detail, because it is prepared to accept for the purposes of its argument
the following conclusion reached by Judge Jessup:
"If the fac! of agreement is established, the identification of a
document or instrument embodying the agreement is not required
by any rule of international law. International law contains no
rule comparable to a Statute of Frauds in some municipal legal
systems. The well-known Ihlen Declaration dealt with by the Per
manent Court in the case of Eastern Green/and became an engage
ment when it was uttered; the minute in which it was subsequently
recorded was an instrument which proved the fact and the content
of the engagement but these might have been proved by other
1
p. 402.th West Africa, Preliminary Objections, Judgment, I.C.].Reports I96z.
2
3 Free Zones of Upper Savoy and the District of Gex, Judgment. I93z, P.C.!.].,
Series A /B, No. 4p. 145.196 SOUTH WEST AFRICA
evidence. As Judge Anzilotti said in his Dissenting Opinion (Series
A/B, No. 53, p. 91):
'There does not seem to be any rule of international law re
quiring that agreements of this kind must necessarily be in writing,
in ordcr to be valid.'
Nothing in the form-or formlessness-or novelty of the Mandate,
militates against its being considered a 'treaty' 1." {Italics added.)
The last proposition in the quotation from Judge Jessup's opinion
is probably somewhat too wide-the form or formlessness of the .Man
date may well be a pointer toits true nature, although not necessarily
a conclusive one.
III. Did the Rights and Obligations Jncorporated in the Mandate Derive
their Force /rom International Agreement?
33. It must be emphasized at this stage that the question is not
whether the mandate instrument was preceded by certain agreements,
or evcn whether as a fact the Mandate would have been promulgated
in the absence of such antecedent agreements. The question is whether
the legal act which gave it its legal effect, was an international agree
ment or not. ln this respect, one might quote legislation in municipal
law as an example. Wherc a law is passed unanimously because ail
interested parties had previously agreed on its terms, it nevertheless
derives its effect from the will of the legislature, and not from the con
sent of the individuals, although such consent may have been de fiue
or de /acta a necessary prcrequisite to the passing of the lcgislation 2•
In the present case, the mandate instrument did not take the form of
an agreement, but of a council resolution. Naturally the form is not
necessarily conclusive as to the nature of the act, and it will be necessary
to consider carefully the history and surrounding circumstances in order
to detenninc whethcr, despite its form, the Mandate can be considered
an international agreement. On the other hand, as pointed out above,
the mere fact that it followed on certain agreements would not per se
result in its force being contractual. BasicaUy the question must resolve
itself into an examination of the intention of the parties responsible
for bringing the Mandate into existence.
34. The history relating to the framing of the Mandate has bcen
dealt with above 3•Respondcnt wishes to refer to certain aspects thereof
in the next succeeding paragraphs.
35. The draft Mandates were first put into the form of treaties. At
somc stage the drafts werc changed to take the form of League resolu
4
tions • This is a strong indication that the parties did not' consider
the final documents as recording international agreements at ail, other
wise there would have been no necessity for effecting any change 5•
1 South West Africa, Preliminary Objections, judgment, I.C.J. Reports I96;1p. 405.
Yide also pp. 474-475 (Judges Spender and Fitzmaurice).
2 Ibid., pp. 460-461 (Judge Basdevant); p. 491 (Judges Spender and Fitzmaudce).
. 3 Vide Chap. II, paras. 10-16, supra.
• Ibid., para.u.
j Vide joint disscnting opinion of Judges Spender and Fitzmaurice inSouth West
Africa, Prelimi11ary Objections, Judgment, I.C.J. Reports I962, pp. 483-484, COUNTER-MEMORIAL OF SOUTH AFRICA
36. It will be recalled that on 5 August 1920 the Council unanimously
approved a report and draft resolution submitted by M. Hymans
regarding the implementation of the mandate system 1. In it, M.
Hymans, inter alia, pointed out:
(a) That the allocation of the mandates was the _prerogative of the
Principal Powers, but that it required confirmation by the Council.
(b) That it would not be practical to secure agreement between Mem
bers of the League in terms of Article 22 (8) of the Covenant as to
the degree of authority or administration to be exercised by the
Mandatory Powers.
(c) That the Council was therefore itself entitled to define the degree
of authority or administration, but that it would be reasonable
in ·view of the technical nature of this task, to make use of the
drafts already prepared by the Principal Powers.
In the result, the draft resolution clearly distinguished between the
roles of the Council in confirming the allocation of the mandates (the
granting of which was the prerogative of the Principal Powers) and
in defining the terms of the mandates {which was the prerogative of
the Council, but which it would exercise by making use of the work
alrcady accomplished by the experts of the Principal Powers).
Thus in parngraph (i) the resolution requested the Principal Powers
to "name the Powers to whom thcy have decided to allocate"the mandates
and to "in/orm" the Council of the frontiers of the mandated terri tories.
On the other hand, it requested the Principal Powers to communicate
to the Council the terms and conditions of the mandates "that they
propose should be adopted by the Council".
Paragraph (ii) provided that the Council would "take cognisance of
the Mandatory Powers appointed" but would "examine the draft man
dates communicated to it".
Paragraph (iii)provided that the Council would notifyeach Mandatory
that it was invested with the mandate, and would commun/cate to it
the terms and conditions.
It is therefore clear both from the terms of the resolution and from
the contents of the report on which it was based that, at least as from
the date of this resolution, the Council considered that it was within
its competence to formulate the terms of the Mandates (agreement
between Members of the League bcing impractical) and that it took
the initiative in giving effect to the provisions of Article 22 of the
Covenant 2.
37. When the draft mandates were handed in, the Council referred
them to the Secretariat "... to consider the Mandates and to consult
other legal experts on any points which thcy considered necessary" 3•
It is quite clear once again that the Council did not consider itself
a mere rnbber stamp whose only fonction was to approve the drafts
submitted toit.
38. The same point arises from the following aspect, i.e., the changes
actually brought about by the CounciL These are set out in Chapter II,
1 Vide Chap. JI, para.13,supra.
2 Vide South West Africa, Preliminary Objections, ]udgment, 1.C.Reporlsr962,
p. 486 (udges Spender and Fitzmauricc).
3 L. of N., O.J.192r (No. r), p. 12Vide Chap. II, para. 14supra. SOUTH WEST AFRICA
paragraph 15, supra. Of particular significance is the insertion of a
fourth paragraph m the preamble. In its natural meaning this paragraph
clearly indicates that the degree of authority, control or admmistration
was being defined by the Council, because there had been no previous
agreement by the Members of the League. In fact one knows that there
had been no previous agreement by Members of the League, and that
Members of the League were not even made aware of the terms of
1
the draft Mandates •
In his separate opinion, Judge Jessup suggests that the expression
"Members of the League" should, in the context of Article 22 (8) of
the Covenant and paragraph 4 of the preamble to the Mandate instru
ment, be read as referring to the Principal Allied and Associated Powers,
or the Principal Allied PO\vers 2• As a matter of construction, this would
be entirely untenable. The authors of the Covenant and the Mandate
would hardly have used the expression "Members of the League" in
different senses in different parts of these instruments. As far as the
mandate instrument is concerned, the expression "Principal Allied and
Associated Powers" is used repeatedly (see paragraphs 1 and 2 of the
preamble) and the expression "Member [or Members] of the League"
1s equally used repeatedly (see fourth paragraph of the preamble,
Article 5, Article 7). There is no suggestion that in one instance the two
concepts are synonymous 3•
Furthermore, the references given by Judge Jessup do not bear out
his suggestion that the expression "Members of the League" was given
any consistent interpretation by the Council and its Members to produce
a result departing from the natural meaning of the words. Thus M.
Hymans, in his report adopted on 5 August 1920, considered this
expression to signify "all the signatories except Germany of the Treaty
of Versailles" or "those signa.tories of the Treaty of Versailles who
are Members of the League of Nations"~- He, and since the Council
unanimously adopted the report, presumably also the other Members
of the Council, clearly therefore did not consider the expression to refer
only to the Principal Allied and Associated Powers, or the Principal
Allied Powers.
Respondent does not propose dealing in detail with the further pas
sages referred to by the 1earned Judge. In part they merely emphasize
the obvious fact that the consent of the Principal Powers to the terms
of the Mandate was necessary in that they were Members of the Coun
cil, which required unanimity for its resolutions 5 ; and in part they
may we!l have been motivated only bv the consideration, expressed in
M. Hymans' report of 5 August 1920 6, that agreement between the
Principal Powers was a desirable (though not essential) preliminary to
action by the Council. However that may be, there is no warrant for
finding that there ever was any general agreement that the expression
1 Vide South West Africa, Preliminary Objections, J11dgment, I.C.J. Reports r962,
pp. 500-501 (Judges Spender and Fitzmattrice).
2 Ibid., p.395.
3 Ibid.,p. 500 (Jttdges Spender and Fitzmaurice).
• I..of N., O.].,1920 (No. 6),p. 338.
1 Vide, e.g., the statementof the British Prime Minister referred toSouth West
Africa, Prûiminary Objections, judgmml, I.C.j. Reports r962,p. 392.
6 Vide Chap. II, para. 13,supra. COUNTER-MEMORIAL OF SOUTH AFRICA
199
"Members of the ~e" was to be regarded as bearing any other
meaning than the words suggest.
39. The alteration in the last paragraph of the preamble to the
mandate instrument is also instructive. The draft read: "The Council
of the League of Nations ... Hereby approves of the terms of the Mandate
as follows ... " (Italics added.) This was altered to read: "Confirming
the said Mandate, defines its terms as follows ... " (Italics added.) This
clearly expresses the Council's view of its function. It confirmed the
Mandate (the granting of which was the prerogative of the Principal
Allied and Associated Powers) but it defined its terms, since the defini
tion of the terms of the Mandate, in the absence of agreement amongst
the Members of the League, was the function of the Council. It also
shows that the Council dia not consider that it was merely "approving"
1
the terms of the Mandate •
40. According to Article 7, the terms of the Mandate could only
be altered with the consent of the Council of the League. This is a
further indication that the M~mbers of the Council (which included the
Principal Powers) considered the Mandate as an act of the Council, not
of any other entity or entities. One can hardly imagine an agreement
concluded between individual States which can nevertheless be altered
by the Council without reference to or consultation with such States 2.
41. The Mandate for South West Africa, in common with ail the
other B and C Mandates, was not registered as a "treaty or inter
national engagement" under Article r8 of the Covenant. Furthermore,
none of the lllandates-with the exception only of the Mandate for
Iraq, the terms of which were, for special reasons, recorded in the form
of a treaty-ever appeared in the Treaty Series published by the League.
This indicates that its authors did not regard the Mandate as a treaty
or international engagement 3.
The Judgment of the Court on the Preliminary Objections holds that
the explanation for the non-registration may be found, inter alia, in the
consideration that Article 18-
"... provided for r<;gistration of 'Every treaty or international
engagement entered into hereafler by any Member of the League'
and the word 'hereafter' meant after ro January 1920 when the
Covenant took effect ... •"
This may explain why the conferment of the Mandate by the Princi
pal Allied and Associated Powers (7-9 May 1919) and the provisional
agreement on its terms in August 19r9 had not been registered. It hardly
affords an explanation why the Mandate instrument, dated r7 December
1920, was not registered as a treaty, if it was considered one.
42. The Judgment of the Court on the Preliminary Objections and
the separate concurring opinions suggest various possible agreements
out of which the :Mandate may be sa.idto have arisen. Thus the Judgment
holds:
1 Vide South West Africa, Preliminary Objections, Judgmenl, T.C.J. Reports r96:z,
p. ,189 (.Turlges Spender and Fitzmauric:e).
2 Ibid.,p. 493.
' Tbid., p. 494.
• Ibid., p332. SOUTH WEST AFRICA
200
"For its confirmation, the Mandate for South West Africa took
the form of a resolution of the Council of the League but obviously it
.was of a different character. It cannot be correctly regarded as em
bodying only an executive action in pursuance of the Covenant. The
Mandate, in fact and in law, is an international agreement having the
character of a treaty or convention. The Preamble of the Mandate
itself shows this character. The agreement referred to thercin was
effected by a decision of the Principal Allied and Associated Powers
including Great Britain taken on 7 May 1919 to confer a Mandate
for the Territory on His Britannic ll!ajesty and by the confirmation
of its acceptance on 9 May 19r9 by the Union of South Africa. The
second and third paragraphs of the Preamble record these facts. It is
further stated therein that 'His Britannic Majesty, for and on behalf
of the Govemment of the Union of South Africa ... has under
taken to exercise it on behalf of the League of Nations in accordance
with the following provisions'. These 'provisions' were formulated
'inthe following terms'.
The draft Mandate containing the explicit terms was prcsented
to the Council of the League in December 1920 and, with a few
changes, was confirmed on 17 December 1920. The fourth and final
paragraph of the Preamble recites the provisions of Article 22,
paragraph 8, of the Covenant, and then 'confirming the said Mandate,
defines its terms as follows: ... '
Thus it can be seen from what has been stated above that this
:Mandate, like practically all other similar Mandates, is a special
type of instrument composite in nature and instituting a novel
international regime. It incorporates a definite agreement consisting
in the conferment and acceptance of a Mandate for South West
Africa, a provisional or tentative agreement on the terms of this
Mandate between the Principal Allied and Associated Powers to
be proposed to the Council of the League of Nations and a format
confirmation agreement on the terms therein explicitly defined by
the Council and agreed to between the Mandatory and the Council
representing the League and its Membcrs. It is an instrument having
the character of a treaty or convention and embodying international
engagements for the i'ifandatory as defined by the Council and
accepted by the l\fandatory 1."(Italics added.)
Now the "definite agreement" consisting of the conferment and
acceptance of the Mandate was not incorporated in the mandate instru
ment-the preamblc merely states that this agreement had takcn place
previously. It seems clear that this "agreement" was merely a prelimi
nary act. The Mandate could not operate as such before its terms had
been settled in one of the two ways provided for in Article 22 (8). The
"provisional or tentative agreement" among the Principal Powers inter
se clearly did not establish the Mandatory's rights and obligations. The
vital stage in the Judgment of the Court is to be found in the last
portion of the above quotation commencing with the words "and a
formai confirmation agreement''. No reasons are advanced for the Court's
conclusion that this act of the Council's amounted to an agreement,
or that the C!=mnciltherein represented the League and its Members.
1 Vide South West A/rica, Preliminary Objections, judgment, l.C.]. Reporls r962,
PP· 330-331. COUNTER-MEMORIAL OF SOUTH AFRICA 20I
43. J udge Bustamante, in dealing with this matter 1, recognizes that
the "'pre-agreement' by which one or more Powers allocated the
Mandate for a particular territory to another State" was "a matter out
side the League of Nations" 2• The actual mandate instrument is,
however, in his view, an agreement, and acceptance by the Mandatory
was at least implied "... above all, because in tact the very exercîse
of the Mandate was objective evidence of the agreement of the
Mandatory" 3.
This reasoning presupposes-
(a) that the Council, in defining the terms of the :Mandate, intended
to enter into an agreement, and not to pass a resolution; and
(b) that, in exercising the Mandate, the Mandatory was doing more
than merely recognizing the right of the Council to pass the resolu
tion in question, and was in fact accepting an offer proposed by the
Council in its resolution.
Neither of these presuppositions is established by the leamed Judge,
or is, in Respondent's respectful submissicin valid.
In regard to non-registration of the rriandate instrument under
Article 18 of the Covenant, Judge Bustamante emphn.sizes that the
form of registration of, and publicity for, declaratory instruments of
the Council are similar to, and equaily effective as, registration in terms
of Article 18. He also emphasizes that a mandate is in many respects
different from an ordinary treaty 4•
ln this respect, it must howcver, be pointed out that Respondent is
not, for the purpose of the present argument, submitting that the
Mandate was invalid because it was not a treaty or was not registered
as such, bnt that its non-registration suggests that it was not considered
a treaty. From this point of view, the differences between Mandates
and ordinary treaties, and the difference between the manner of securing
publicity for the two types of instrument, both point to the conclusion
that they were regarded as basically dissimilar instruments.
44. Judge Jessup, in his separate opinion, refers to the following
agreements:
(a) The first agreement was the decision of the Council of Four on
7 1\fay 1919 to confer the Mandate on Respondent 5•
(b) The second agreement was the agreement by the Principal Powers
on the tenns to be proposed to the Council of the League 6•
(c) The third agreement was the acceptance by the Mandatory of
the Mandate as allocated in the first agreement between the Principal
Allied and Associated Powcrs; and the acceptance of the second
agreement between the Principal Powers by which the terms of
the Mandate were fonnulated 7•
1
South West Africa, Preliminary Objections, Judgment, I.C.J. Reports z96z, .
pp2 358-360, 371-374.
Ibid., p.358.
3 Ibid.,p. 3.59.
4 Ibid.,pp. 359-360, 371-373.
' Ibid.,p. 399.
6 Ibid.,pp. 399-400.
7 Ibid.,p. 400.202 SOUTH WEST AFRICA
(d) The fourth agreement was "the entire body of the Council's reso
lution" in defining the final terms of the Mandate •
(e) The fifth agreement was the compromissory clause as distinct
from the rest of the Mandate 2•
It is submitted that the first three "pre-agreements" (to use Judge
Bustamante's description) did not establish the Mandatory's rights and
obligations under the Mandate. Before such rights and obligations
could be created, Article 22 (8)of the Covenant had to be complied with.
This was effected by the Council's resolution of IJ Deccmber 1920.
With regard to the "fourth agreement", it is submitted that it is arti
iicial to treat the Council's actas an agreement merely because it repre
sented the unanimous decision of the Council of which Britain, being
also the representative of the Mandatory, was a Member. In terms of
Article 22 (8) of the Covenant, the degree of authority, control or admin
istration to be exercised by the Mandatory could be established by
agreement only if such agreement was reached by the Members of the
League-agreement among Members of the Council would not have been
sufficient.No other provision gave the Members of the Council any power
to define the terms of Mandates by means of agreement with the Man
datory. Such agreement could not bind the League (as an entity) or its
Members. The "fifth agreement" considers the compromissory clause
in isolation from the rest of the Mandate. In this regard Respondent
respectfully associates itself with the following passage from the joint
<lissenting opinion of Judges Spender and Fitzmaurice.
"\Ve recognize in this connection that it may be tempting to
regard an instrument containing an adjudication clause (particu
larly one worded like Article 7-'the Mandatory agrees .. .', etc.)
as being protanto of a conventional character. We do not however
think it possible or legitimate to detach and isolate one provision of
an instrument, ascribe a treaty character to it and then, on that
basis, deem a similar character to be thereby imparted to the whole
instrument. Article 7, standing on its own, could not be a 'treaty
or convention' for the purposes of Article 37 of the Statute, for
an adjudication clause, standing on its own, and apart from the
context in which it occurs, is meaningless and can have no real
existence. It could not be interprcted, and certainly could not be
applied in isolation. The fact that it is in the instrument may indeed
be a pointer to the character of the latter, may afford some evidence
as to the nature of the instrument: but that is ail. Moreover, it
would seem that if one did detach Article 7 from the rest of the
Mandate, it would then assume the character of a unilateral declara
tion involving a unilateral assumption of obligation, since the
Mandatory alone gave the undertaking. Unilateral declarations
may contain undertakings, and eau certainly create valid inter
national obligations; but, as noted above, they do not corne within
the category of treatics, conventions or other forms of international
agreements, since they have no bilateral character 3."
1 South Wtst Africa, Preliminary Objections, judgment, l.C.J. Reports r96400..
2 Ibid.,p.401.
3 Ibid., p. 478. COUNTER-MEMORIAL OF SOUTH AFRICA 203
45. Judge .Mbanefo's arguments with regard to this issue may be
summed up as fol!ows 1:
(a) Alter posing the question: "If the Mandate Declaration was never
a treaty, by what right then did the Respondent assume the ad
ministration of the terri tory?", the learned Judges states:
"For upwards of 40 years it has administered the territory
because it regarded the Declaration as a treaty or convention
empowering it to do so on the terms therein set out. If the law
of estoppel has any meaning or application in international law
the Respondent would be precluded from raising such an issue on
the face of its own conduct during the past 40 years 2."
The reasoning seems to be based on a presupposition that the
Mandate could not have had any validity unless it was a treaty
and that therefore the recognition by the Mandatory of its validity
necessarily involved a recognition of its character as a treaty or
other international agreement. This argument falls away if it is
appreciated that Respondent does not assert that the Mandate
was invalid ab initio; it merely contends that its validity clid not
arise from international agreement. It accepts that the Mandate
was valid as a Council resolution in terms of Article 22 (8) of the
Covenant.
(b) As authority for the view that the Mandate was an international
agreement, the learned Jud~e refers to the r950 Advisory Opinion
and the M avrommatis case . In neither case, however, was there
any dispute as to whether the Mandate's legal effect derived !rom
international agreement or not.
(c) Finally, Judge Mbanefo holds that the Mandate is a treaty be
cause it was "an annex to the Covenant" or "part of Article 22
of the Covenant" in that the Council's power to define the terms of
the Mandate derived !rom Article 22 (8) of the Covenant 3.
It is respectful!y submitted that this finding is untenable. The Man
date does not purport to be an annex to the Covenant, and in fact
was concluded long after the Covenant came into force. A document
recording the exercise of a power granted by an enabling instrument
dearly does not become part of such instrument. For instance, a statute
passed by virtue of some power in a Constitution, does not become
part of the Constitution. If Judge Mbanefo's reasoning is correct, every
statute passed, e.g., by the legislature of the United States of America
must be considered a part of, or an annex to, its Constitution".
46. To sum up, a number of agreements have been suggested as being
the international agreement which gave the Mandate its binding force.
Respondent concedes that a number of agreements were concluded
prior to the promulgation of the Mandate, but denies that they, whether
considered singly or together, can be regarded as the constitutive
source of the rights and obligations recorded in the mandate instrument.
1
South West Africa, Preliminary Objections, ]udgment, I.C.J.Reports ·r962,
l 2· 439.440.
3 Ibid., p. 440.
Ibid., p. 441. Vide also p. 442.
• Vide also the further examples set out in South West Africa, PreliminarOb
ftctions, Judgment, 1.C.J. Reports r962, p. 49I (Judges Spender and Fitzmaurice);
and pp. 599-6oo (Judge van Wyk).204 SOUTH WEST AFRICA
On the contrary, Respondent submits that the .Mandate was created
by the act of the League Council on 17 December 1920, and rccorded
in the instrument of the same date. This decisive act can in no sense
be described as an international agreement, since it is, for the reasons.
stated above, both in form and substance a Council resolution and no
more or less 1.
47. The conclusion that the Mandate did not derive its legal effect
from international agreement, is strengthened when one considcrs who
could conceivably have been parties to any mandate agreement. This
topic will be dealt with in the next succeeding paragraphs.
IV. Who Co1ûd Have Been the Parties to any Mandate Agreement?
48. An analysis of the above question shows that there exists con
siderable doubt whether any international person other than the Man
datory could have been a contractual party to the Mandate. Since an
agreement cannot exist unless there are at least two parties, it would
follow that, if this doubt werc justified, the lack of parties would be a
further reason why the Mandate could not be considered as ever having
been an international agreement.
But an examination of who could have been parties to a mandate
agreement is important also for the purposes of Respondent's alterna
tive argument in the event of the Court finding that the Mandate was
initially a treaty or convention. Respondent's basic submissions in this
regard may be rendered as follows:
(a) For a treaty or convention to have effective existence, there must
of necessity be at least two parties possessed of international
personality, who enter into an agreement and between whom the
intended rights and obligations can operate as provisions thereof.
(b) Likewise, for its continued operation as such, a treaty or conven
tion requires the continuation in being of at least two parties pos
sessed of international personality, who can inter se and by reason
of the contractual nexus between them, daim observance of the
agreed rights or performance of the agreed obligations.
(c) vVhen by extinction of parties to a treaty or convention their
number is reduced to one, its continued contractual operation be
tween parties becomes impossible in fact, and the continued exist
ence of contractual rights and obligations as between international
persons, by reason of that treaty or convention, is rendered impos
sible in law.
{d) Such extinction of parties could occur in varions ways, e.g., their
extinction as States, or their ceasing to be parties although re
maining in existence as States. And there may be various reasons
for ceasing to be a party, e.g., release by agreement, or loss of an
agreed qualification for being a party.
(e) Upon dissolution of the League there was such an extinction of
all parties (other than the Mandatory) between whom the Mandate
could previously have had contractual operation.
1 Vide,in this regard, also the declaration of Judge Spiropoulos at pp. 347-348,
and the dissenting opinions of Judge Basdevant at pp. 46o-4fu and Judge van Wyk
at p.598. COUNTER-MEMORIAL OF SOUTH AFRICA 205
(!) Even if the Mandate is regarded as having ab initio been a "treaty
or convention", there thus ceased to be in operation a mandate
agreement, i.e., a "treaty or convention in force"-and that so quite
irrespective of the question whether certain vested consequences
of the agreement remained in existence for a reason independent
of the continued contractual operation thereof.
Respondent will therefore consider in tum the various entities that
·have been, or may be, suggested as being, apart from the mandatory,
·parties to a mandate agreement.
49. The Prinâpal A/lied and Associated Powers.
Although the group of States known at the time as the Principal
.Allied and Associated Powers participated, under that name, in the
,establishment of the mandate system, in the manncr and to the extent
indicatcd above 1, the terms of the respective mandate instruments did
.not, either by themselves or as read against the background of Article
22 of the Covenant, provide for any function to be fulfilled by the
Principal Powers as such in the operation of the system. In other
·words, the instruments did not confer rights or impose obligations upon
·the Principal Powers as a body or group, or as individual States because
,of their membership of that body or group. It is significant that the
-original idea of casting the :Mandates into the form of treaties bctween
the respective Mandatories and the Principal Powers was abandoned 2•
Their role as Principal Powers was apparently intended to be transitional
only, namely to exercise their power of disposai over the ex-cnemy
territories in such a way as to get the mandate system established in
-respect of such territories. Their co-operation was particularly neces
·sary with a view to the establishment of the respective Mandatories'
·title to the territories. Having done what was necessary from their
,side to achicve that purpose, thcir function as Principal Powers in this
:respect was fulfilled. In the operation of the svstem itself the role con
-templated for them would be that of indivÎdual 1\Iandatories, or of
Members of the Leaguc 3,or of both.
50. The absence of any contractual nexus as far as the Principal
Powers were concerncd, is further evidenced by the fact that, although
·the United States of America had participated in the allocation of the
Mandates and in the earlier drafting of the B and C Mandates, it was
·not present at the Council Meetings of December 1920 (since it was not
.a Member of the League} and was unaware of what had becn sub
mitted to the Council in the form of draft mandates, or of what action
-the Council had taken thereanent, until after the event. Moreover, in
·the separate treaty which the United States concluded with Germany
·in Berlin in 192 r, it reserved for itself ail rights and advantages set
,out in the Treaty of Versailles for the Principal Allied and Associated
Powers, including those concerning the former German colonies, and
·stipulated that it should not be bound by any action taken by the
League of Nations unless the United States should expressly give assent
to such action. \Vhether the United States ever did expressly give its
1 Vide Chap. II, paras. 5-9, supra.
2Ibid., para.1r.
5Article 4 of the Covenanprovided that they would also be permanentMembers
,of the Council of the League. 206 SOUTH WEST AFRICA
consent to the tenns of the Mandate for South West Africa, does not
1
appear •
51. It is also significant that the Powers have never claimed any
rights as a separate party to the mandate instruments, or any interest
in any mandate otherwise than as Mandatories or Members of the
Council. This is particularly significant when one considers the events
at the last session of the League Assembly in April 1946. No suggestion
was then made that in respect of ~.-Iandatesthe Principal Powers 2pos
sessed rights which would survive the dissolution of the League, or
that the consent of the Principal Powers would be required for any
future variation of the Mandates. In this regard Judges Spender and
Fitzmaurice drew attention to the League resolution of r8 April 1946,
which referred to the Mandatories' intentions to continue to discharge
their obligations under the Mandates "until other arransements have
been agreed to between the United Nations and the respective Mandatory
Powers'' (italics added by Judges Spender and Fitzmaurice) 3• If the
Principal Powers considered that they had any rights, this would have
been the stage to assert them, particularly since their position was
not as firmly entrenched in the United Nat10ns Organization as it had
been in the League of Nations.
On the contrary, however, at least one of the Principal Powers,
namely Great Britain, in relation to the Manc!ate for Iraq, had pre
viously recognized the sole competence of the Council to agree to the
terms of the Mandate. The details are set out in the joint dissenting
opinion of J udges Spender and Fitzmaurice • and it is not necessary
to repeat them here.
52. Finally, the provisions of paragraph 1of Article 7 of the Mandate
seem to exclude any possibility of the Principal Powers being parties
to a mandate agreement. This para(:raph read as follows: "The consent
of the Council of the League of Nat10ns is required for any modification
of the tenns of the present Mandate."
It is difficult to conceive of the Principal Powers being parties to
an instrument, but leaving the power to modify it in other hands '·
53. Judge Jessup holds that:
"... the Mandate agreement was, in 1945, and was on 4 November
1960, a 'treaty in force' between the Mandatory and the four
Principal Allied Powers. The contractual arrangement between the
Mandatory and the four Principal Powers was not tenninated by
the dissolution of the League and therefore the rights and obliga
tions of the four Powers at any rate were not affected by the disso
lution of the League, and the rights vested in third States bene
ficiaries, which category includes the Applicants, persist as long
as this treaty is in force. The only theory on which it can be said
1 Vide South West A/rica, Preliminary Objections, Judgment, I.C.J. Reports z96a~
pp. 496-497 (Judges Spender and Fitzmaurlce).
2 Three of whom were not represented at the Session, viz., the United States of
America, Japan and Italy.
3 Vide South West Africa, Preliminary Objections, Judgment, I.C.j. Reports z96a,.
p. 499.
4 Ibid.,p. 498, footnote1.
5 Ibid., pp.497-498. COUNTER-MEMORIAL OF SOUTH AFRICA
that this treaty is no longer in force would be one posited on the
total elimination of the Mandate in every respect 1.''
The "contractual arrangement" referred to in this passage, is the "pre
agreement" relating to the provisional formulation of the terms of the
Mandate 2•It does not refer to the conferment of the Mandate, which
happened by agreement with the Principal Allied and Associated Powers
(including the United States of America), not only the Principal Allied
Powers (i.e., Great Britain, France, ltaly and Japan} 3•
The last two sentences of this quotation are, it is submitted, unsound
for the reasons set out above t.This "contractual arrangement" clearly
did not establish the rights and obligations of the Mandatory. The
intention at ail times was that it should be superseded either by a formai
convention, or by a resolution of the Council in terms of Article 22 (8)
of the Covenant. In fact the latter method was employed.
Judge Jessup does not deal with the various arguments advanced
above which tend to show that there never was any intention that the
Principal Powers should be contractual parties to the Mandate.
54. The League of Nations.
In determining whether the League was a party to, and derived con
tractual rights from, the Mandates, the first question of importance is
whether the League could be regarded as a legal persona and a subject of
international law.
Therc is considerable authority in favour of the proposition that the
League was a legal persona.
Thus Quincy Wright stated:
"There remains the possibility that the League is itself a person
ality capable of contracting obligations and acquiring rights, apart
from its members. This is the most generally accepted theory ... 5"
And Oppenheim stated:
"The question of the legal nature of the League was a matter of
considerable controversy. The predominant opinion was that the
League, while being a juristic person sui generis, was a subject of
international law and an International Person side by side with the
several States 6."
55. If. in consonance with these authorities, the view is accepted
1 South West Africa, Prûiminary Objections, Judgment, I.C. J. Reports I962, p. 416.
2 Ibid., pp. 399-400 (Judge Jessup). Vide also para. 44, supra.
3 Ibid., pp. 390, 399.
• Vide paras. 44, 49-52, supra.
5 Wright, op. cit., p. 366. Vide the various authoritiesquoted in footnote 52 (a)'
on that page. Vide also Starke, J. G., An Introduction lo International Law (3rd ed.).
p. 57; Verdross, A.. Die Verfass«ng der Volkerrechtsgemeinschaft (1926), p. 51;
'.Villiams. J. F., "The Status of the League of Nations in International Law".
I.L.A., Rep. XXXIV (1926), pp. 688-689. .
6 Oppenheim, L., International Law (8th ed.), Vol. I, p. 384. Vide the authorities
quoted in footnote 2. Vide also Schwarzenberger, G., International Law (3rd ed.),
Vol. 1, p. 138 (quoted at I, p. 308); Repa,ation for Injuries Sufjered in the Service
of the United Nations, Advisory Opinion, I.C.]. Reports I949, p. 179 (quoted at I.
p. 309); and Communications /rom the Swiss Federal Counci/ cancct'11ingth11Diplomatie
Immunities to Be Accordedto the Staff of the League of Nalions and of the International
Labour Office in L. of N., O.]., 1926 (No. 10), pp. 1407, 1422, of which Article :r
is quoted at I, p. 309.208 SOUTH WEST AFRICA
that the League was an international legal persona (and still on the
assumption that the Mandates were in fact agreements) it must follow
that the League itself was a party ta the mandate agreements and
<lerived contractual rights therefrom correlative to the obligations im
posed upon the respective Mandatories. Article 22 (2) of the Covenant
rendered clear that the respective Mandatorîes would fulfil their functions
"as Mandatories on behalf of the League". (ftalics added.) Consequently,
on the premise of "the League" being a legal persona, the Council's role
in entering into the mandate agreements with the respective Mandatories
would be of the nature of an agency performed on behalf of the League,
whereby the Jatter would be constituted a party to the mandate agree
ments. In fact, each of the mandate instruments records in its preamble
the J\landatory's undertaking to exercise its Mandate "on behalf of the
League of Nations"; and it was such a Mandate that was in each case
confirmed by the Council as "the said Mandate", and the terms of
which were defined by the Council in pursuance of Article 22 (8) of the
Covenant.
56. In the above regard some views on the part of Members of the
Court were revealed in the Judgment and opinions on the Preliminary
Objections in this matter. The Court held that the Mandate was an
agreement "between the Mandatory and the Council representing the
Leagiie and its Members" 1,and said:
"The Mandate for South West Africa, like ail the other Mandates,
isan international instrument of an institutional character, to which
the League of Nations, represented by the Council, was itself a Party.
It is the implementation of an institution in which all the Member
States are interested as such ." (Italics added.)
The Court, therefore, acccpted both that the League was a legal
,Persona, and that it (and its Members) wcre represented by the Conn
3
cil •
Judges Spender and Fitzmaurice, on the other band, were inclined
to doubt whethcr the League had legal personality 4.
As will appear hereunder s,it is in the ultimate analysis of no con
sequence to Respondent which of these views is correct since, in Respon
dent's submission, on either basis all entities which could have been
parties to a mandate agreement fell away on dissolution of the League.
57. The Members of The League.
There are a number of formidable difficulties in the way of finding
that the Members of the League were parties to any mandate agree
ment. Firstly, the expression "Mandatories on behalf of the League" in
Article 22 of the Covenant and in the mandate instrument would be
inapt if Members of the League were to be regarded as parties to the
Mandate. It should then have read, "Mandatories on behalf of Mcmbers
of the League". Secondly,it is clear that the Members did not partici
pate directly in the conclusion of any mandate agreement. They could
1 South West Africa, Prelimiilary Objections, Judgment, l.C.j. Reports r96331..
2 Ibid., p332.
3 As far as the Members of the League are concerned, vide para.. 5infm.
4 South West Africa, Preliminary Objections, Judgment, I.C.]. Reports r96z,
pp. 475 (footnote1), 502.
5 Vide para. 61,infra, COUNTER-MEMORIAL OF SOUTH AFRICA 209
therefore be parties only if the Council (or possibly the Principal Powers)
were authorized to act on their behalf. No such authority can be found
in the Covenant or in the mandate instrument, or anywhere else.
Perhaps, the strongest indication that the Members of the League
were not considered to be parties to the Mandate derives from the
amendment effected by the Council to the compromissory clause as
worded in the draft Mandate submitted to it. It willbe recalled that the
draft provided for compulsory jurisdiction in the event of disputes
"between the l\.Iembersof the League of Nations". This was altered by
the Council to relate only to disputes "between the Mandatory and
another Member of the League of Nations". This change "was inspired
by the consideration that Members of the League other than the Man
datory could not be forced against their will to submit their differences
to the Permanent Court of International Justice" 1•
Had the CounciJ been authorized to act on behaJf of Members, or
had the Members been parties to the Mandate on any other basis, this
consideration couJd not arise, since they wouJd have consented to juris
diction by becoming such parties 2•
These difficulties were not dealt with by the Court in its Judgment on
the Preliminary Objections when it held that the Mandate was an
agreement between the Mandatory and the Council "representing the
League and its Members" 3,
Respondent submits, for the reason aforestated, that the Members
of the League were not parties to a mandate agreement. Upon the accept
ance of this submission, it would follow that the Mandate could have
been an international agreement abinitio only ifthe League were a legal
persona. For if the League did not possess legal personality and if the
Members of the Lea.gue were not parties to a mandate agreement,
then, since Respondent contends that no other persons could have been
parties, the Mandate could not have been an international agree
ment 4.
58. If despite the strong indications to the contrary dealt with above,
it should be held that Members of the League (with or without the
League as a co-party), became parties to a mandate agrecment-whether
through the agency of some other international person or persons, or by
way of contract for the benefit of member States as third parties-they
could, as Respondent will submit elsewhere 5, by reason of the qualifica
tion upon which those contractual rights (ifany) were dependent, re
main parties only as long as they were Members of the League. Con
sequently they could, in Res;-'Jndent's submission, not have remained
parties after dissolution of the League.
59. Tlie lnhabitants of the Mandated Territory. _
In his separate opinion on the Preliminary Objections Judge Busta
mante expressed the view that the populations of .the mandated terri
tories were, in the mandate system, "recognized as having the capacity
1 Vide Chap. 11, para. 16, supra.
2 Vide generally South West Africa, Preliminary Obiections, judgment, l.C.j.
Reports I96:1, pp. 499-502 (Judges Spender and Fitzmaurice).
3 Ibid., p. 3r.
• Vide para. 48, supra.
5 Vide paras. 69-84, infra. 210 SOUTH WEST AFRICA
1
of Jegal persons" and that they "are in fact parties to the mandate
agreements and represented by the League of Nations" 2•
Judges Spender and Fitzmaurice, in their joint dissenting opinion,
referred to the proposition that the inhabitants of the mandate terri
tory were "directly or indirectly parties" to the Mandates as "obviously
untenable", and they consequently refrained from even cxamining this
proposition 3•
60. It is submitted that whatever might have been the position of the
peoples inhabiting A Mandated areas •, the inhabitants of a C Man
dated area could not on ordinary principles of international customary
law be regarded collectivcly as an international person or separately as
international persons.
The possibility exists that individuals, though not ordinary or full
subjects of international law, can by agreement between States become
the bearers of rights in international law in a sense and to an extent
intended by the parties to such agreement. Whether such intent exists in
a particular case, is always a matter for interpretation of·the agreement
in question 5•The gencral trend of opinion appears to be that rights in
international law cannot be considered to have been conferred upon
individuals unless thcre is covenanted for them procedural capacity to
5
pursue their interests in an international political and/or judicial forum •
In the case of the C Mandates, although obligations imposed upon
the Mandatories were undoubtedly intended for the benefit of the in
habitants of the territories, there is nothing to indicate that rights in
international law vis-à-vis the Mandatories were intended to be con
ferred upon them. In this regard it will be recalled that there was a
proposai during the drafting of the Mandates to grant rights to indivi
duals to move the Permanent Court 6• It is significant however that
this right was proposed to be granted to "subjects or citizens of States
Members of the League of Nations" and not to the inhabitants of man
dated terri tories, and that it did not relate to the exercise by the Mandatory
ofthe "sacred trust" provisions of the Mandate, but purely to the provisions
inserted for the benefit of citizens of League lllembers. This shows that
the States responsible for the drafting of the mandate provisions never
contemplated a right of access to the Court for the inhabitants of the
territory-and, in the final event, even the right proposed for citizens of
League Members was not agreed to.
Certain writers suggest that the inhabitants were, in a sense, accorded
rights in international law vis-à-vis the Mandatories in that they were
permitted the facility of petitioning the League 7• It is to be recalled,
however 8,that there was no provision for such petitions either in the
mandate instruments or in the Covenant of the League; and the Man-
1South West Ajrica, PrcliminaryObjections, judgment, I.C.J. Reports I96z, p.354.
Vide also pp. 356, 362-363, 369.
2
3 Ibid.,p. 355.
4 Ibid.,p. 496.
As to which vide \Vright, op. cit.,p. 460.
s Vide François, J.P. A., Grondlijnen van het Volkenrecht {2nd ed.),pp. 227-231;
Korowicz, M. St., "The Problem of the International Personality of lndividuals",
A.f,I.L., Vol. 50 (,956), pp. 536, 56L
6 Vide Chap. II, para. 12, supYa.
7 Vide, e.g., Wright,op. cit.,p. 457.
Il Vide Chap. II, para. 20, supra. COUNTER-MEMORIAL OF SOUTH AFRICA 2II
datories did not by international agreement undertake any obligations
relative to petitions by inhabitants. ln so far as the rules of procedure,
as laid down by the Council, required petitions from inhabitants to be
fonvarded through the respective :Mandatories, this was in reality directed
towards affording the .Mandatories an opportunity of commenting on
the contents of the petitions. If there could be said to havé been an
obligation upon the Mandatories to forward the pctitions to the League,
the obligation was of a procedural nature only, concerning the l\fan
datories' relationship with the League; and it was not of the nature of
an obligation towards the inhabitants undertaken by treaty 9r conven
tion. Moreover, although inhabitants could sttbmit petitions, they had
no capacity of purstting such petitions in the proceedings of the League
itself; even consideration of the petitions depended entirely upon the
will of the l\Iembers and organs of the Lcague. In all these circumstances
it seems erroneous to suggest that the facility for submitting petitions
was to be regarded as a right in international law, vestcd in theinhabitants
1;is-à-visthe Mandatories.
However, evcn_if such a suggestion could be countenanced, the "right"
:involved therein would have been dependent entirely on the existence
of the supervisory body. Upon the dissolution of the League and the
consequent lapse of the Mandatories' obligation to report and account
to the Council as supervisory organ, the very basis of the suggested
"right" on the part of the inhabitants also fell away.
In the result no possibility exists of the inhabitants having rights
which involve any procedural capacity for them in an international forum,
whether political or legal. If they could possibly be said to have rights
in international law in any other sense, such a proposition would have
to be founded on some basis other than regarding them as contractual
parties to the Mandate.
6r. For the reasons aforestated, Respondent submits that:
(a) Neither the Principal Allied and Associated Powers, nor the in
habitants of the mandated territory, could have been parties to
any mandate agreement.
(b) The only possible parties, apart from the Mandatory, could have
been the League and/or its Members in their capacities as such,
and even that is doubtful.
(c) The circle of possible parties (apart !rom the Mandatory) is therefore
no wider than the I.eague and/or its Members in their capacities
as such, and on dissolution of the League both fell away-the League
was then no longer in existence, and no States could thereafter
retain their capacities as Members of the League. Consequently,
on dissolution of the League, the Mandate ceased being a "treaty
or convention in force" if it had ever been one 1.
62. It will be convenient al this stage to advert briefly to the attitude
of the majority members of the Court to this aspect in the Judgrnent
and opinions on the Preliminary Objections.
63. The ]ttdgment of the Court.
It will be recalled2that the Court held that the parties to the Mandate
1 Vide South West Africa, Preliminary Objections, Judgment, I.C.J. Reports r96z,
pp. 347-348 (Judge Spiropoulos); p. 503 (Judges Spender and Fitzmaurice)p. 598
(Judge van Wyk). The other minority Judges did not deal with this point.
2 Vide para. 56, supra.212 SOUTH WEST AFRICA
were, apart from the Mandatory, the League of Nations and its Mem
bers. The Court based its conclusion that the Mandate continued as a
"treaty or convention" even after the dissolution of the League, on two
grounds. Firstly 1, it relied on the 1950 Advisory Opinion. The 1950
Opinion did not, however, deal with the question whether the Mandate
continued in force as a treaty or convention or who the parties thereto
could have been. ln the words of Judges Spender and Fitzmaurice:
"The issue arising on Article 37 of the Statu te is whether the Man
date is in force as a treaty or convention. For this purpose it is not
sufficient to rely on the Court's 1950 Opinion as establislùng that the
Mandate is, in any case, ~nforce on an institutional basis 2."
3
The Court also relied on the alleged agreement of April 1946 • An
agreement in 1946 could conceivably have kept the Mandate alive in
an amended or truncated form between new parties. For the reasons
stated below 4 Respondent submits, however, that this did not happen.
64. Judge Bus/amante.
Judge Bustamante, it will be recalled, conceived of the Mandate as
an agreement between the Mandatory and the population under Man
date. These parties both survived the dissolution of the League 5•
Whether the population of the mandated territory could be regarded
as a party to the Mandate, has been considered above, where it is sub-
mitted that the answer must be in the negative 6• ·
In addition Judge Bustamante considered that the League resolu
tion of 18 Afril 1946 "recognized" the survival of the Mandates as
7
"internationa conventions in force" • The effect of thls resolution is
discussed below "'.
65. Judge Jessup.
Judge Jessup relied on a contractual arrangement between Respond
ent and the Principal Powers 8• It has been submitted above that the
four Principal Powers could not be regarded as parties to any Mandate
agreement 9•
In addition his reasoning regarding an undertaking by the Mandatory
on 9 April 1946 10,was advanced as further support for his conclusion
that there can still be said to be a treaty or convention in force. This is
dealt with below \ where it is submitted that this undertaking did not
give rise to any legal rights.
1South West Africa, Preliminary Objections, judgment, l.C.J. Reports r962,
pp.2333-334.
Ibid., p.495. Vide also p. 472.
3 Ibid .• p334 read with p. 338.
~ Vide paras. r14-r35, infra.
~ South West Africa, Preliminary Objections, Judgment, I.C.J. Reports r962, p. 369,
~ Vide paras. 59-60, supra.
7 South West A frica, Preliminary Objections, Judgment, l.C.J. Reports r962, p. 370.
8 Ibid., p416.
9 Vide paras. 49-53, supra.
10
South West Africa, Preliminary Objections, Judgment, l.C.]. Reports r962,
PP· 417 ff. COUNTER-MEMORIAL OF SOUTH AFRICA 213
66. Judge Mbane/o.
1
It seems that Judge Mbanefo's reasoning may be summarized as
follows:
(a) The Court in the 1950 Advisory Opinion held that the Mandate still
existed.
(b) No distinction can be drawn between the Mandate as an agreement
and the Mandate as an objective institution.
(c) Therefore the Mandate as an agreement still exists.
Judge Mbanefo did not advert to the question who the parties to the
Mandate could be at present. In fact his reasoning 2 merely leads lùm
to the conclusion that the rights and obligations in terms of the Man
date still exist "in so far as they are still capable of being exercised
and enforced ... " 3• This is, in his view, sufficient to dispose of the
matter, since if the rights and obligations still exist, the instrument
creating them must still be in force.
The crucial aspect of Judge Mbanefo's reasoning is therefore that
the Mandate can exist only as an international agreement. Although
he pull?orts to follow the 1950 Advisory Opinion, he thus reaches a
conclus10n which in Respondent's submission, is the opposite to that
reached by the Court in 1950. The Court then dealt mainly with an
argument that the Mandate as a whole had lapsed when, on the dis
solution of the League, there were no longer contractual parties to
it. This argument was rejected by the Court on the basis that the Man
date was capable of existence independently of any continuing con
4
tractual aspect • The Court was thus in 1950 able to decide that the
Mandate continued irrespective of whether there were still contractual
parties to it. Judge Mbanefo now uses this continued existence as a
basis for finding that there are still contractual parties to the Mandate.
If Judge Mbanefo were correct that the Mandate cannot exist other
wise than as a treaty or convention, it would in Respondent's submission
follow that the Mandate as a whole must now have lapsed, solely by
reason of there being no longer any contractual parties thereto.
V. Conclusion regarding the Dissolution of the Permanent Court
67. For the reasons aforestated, Respondent submits that the Man
date never was, or at any rate, since the dissolution of the Leaguc of
Nations, no longer is, a "treaty or convention in force".
The effect of this submission is that Article 37 of the Statute of this
Court, could not (in any event as from the date of dissolution of the
League} operatc so as to effect a substitution of this Court for the
Permanent Court in respect of disputes falling under Article 7 of
the Mandate. Consequently there is, at any rate since the dissolution of
the League, no tribunal vested with jurisdiction to determine disputes
falling under Article 7 of the Mandate.
' South West Africa, Preliminary Objections, Judgmenl, l.C.J.Reports r96z,
pp. 442 fi.
2 Ibid., pp.444-445.
3 Ibid .• p. 445.
4 International Status of South-West A frica, Advisory Opinion, l.C .]. Reports r950,
p. 132. SOUTH WEST AFRICA
214
The above in itself would provide a complete answer to any sugges
tion that the provisions of the compromissory clause could have played
any role in keeping the Mandate alive.
In the next section of this Chapter, Respondent will deal with the
further reason why, in its submission, the compromissory clause bas
lapsed, namely that since dissolution of the League no States possess
the qualification, i.e., Membership of the League, which was required
for invocation of the compromissory clause.
D. THE EFFECT OF THE DISSOLUTION OF THE LEAGUE ON THE PARTIES
ENTITLED TO INVOKE THE COMPROMISSORY CLAUSE
I. lntroductory
68. The compromissory clause provided for the adjudication of dis
putes "between the Mandatory and another Member of the League of
Nations". Since the dissolution of the League no State can claim to be
"another Member of the League of Nations", unless this expression
must be interpreted in a sense different from that conveyed by the
ordinary meaning of the words. In the absence of such an interpretation,
the compromissory clause could today be applied only if the competence
to invoke it now vests. in States not falling within the category of Mem
bers of the League. Such a change could, in the circumstances of this
case, conceivably have been brought about only by a term to be implied
in the Mandate itself, or by an agreement, express or implied, concluded
during the years 1945-1916, or by the operation of some objective rule
of international Jaw • These varions possibilities will be èonsidered
in turn. ·
II. Interpretation of the Phrase "Another Member of the League of
Nations"
69. As in ail cases of interpretation, the object must be to ascertain
the intention of the parties as expressed in the written document, read
as a whole, in the light of the circumstances existing at the time of its
execution.
In the present case, the phrase which is in essence to be interpreted,
viz., "another Member of the League of Nations", occurs in the context
of a compromissory clause in which the l\fandatory consented to the
jurisdiction of an international tribunal in respect of certain types of
disputes. The consent is qualified, inter alia,with reference to the other
party to such dispute. And the reference is not to another State or
States by name, but to another State or States to which the expression
"Member of the League of Nations" applies.
The immediate linguistic context is:
"... if any dispute whatevcr should arisebetween the Manda tory and
another Member of the League of Nations ... such dispute ... sha/1
besubmitted . .. ". (ltalics added.)
In this context, not only the litera! but also the natural and ordinary
1 The approach is consequentlthe same as that adopted in seeking to asccrtain
whethcr Article 6 of the 1'.fandate survivthe dissolutionof the League. Vide
Chap. III, para. 19supra. COUNTER-MEMORIAL OF SOUTH AFRICA 2I5
meaning of the language is that the expression "Member of the League
of Nations" must apply to the other party at the time when the dispute
arises, i.e., at the time of operation or incidence of the clause, as envisaged
therein-otherwise the case will not be covered by the consent.
The effect of this natural construction may be expressed in two ways,
each of the sa.mepractical import, namely:
(a) that the expression "another Member of the League ... " is des
criptive, with reference to the lime of envisaged application of
the clause, or
(b) that the right of the other State is conditional upon its complying
with a qualification al the time of envisaged application of the clause.
This natural and ordinary meaning of the phrase derives support
from the probabilities and surrounding circumstances, which will be
considered hereafter.
70. An analysis of the Covenant, in pursuance of which the mandate
instrument was framed, clearly shows that the expression "Member of
the League'', wherever it occurred in the Covenant, carried the same
requirement as above, namely that of membership at the time of envisaged
application of the provision in question-i.e., when such provision would
be sought to be invoked for the exercise of a right or for enforcement
of an obligation due by another. This enta.ils that such provision could
not have been invoked by or against any State which had either never
joined the League, or had ceased to be a Member prior to such purported
invocation.
7r. The Covenant provided, inter alia, as follows with regard to
rnembershipin the League:
(a) "The original Members of the League of Nations shall be those
of the Signatories whicharenamed inthe Annex to this Covenant
and also such of those other States named in the Annexas shall
accede without rescrvation to this Covenant." (Art. r (r).)
(b) "Any fully self-goveming State, Dominion or Colony not
named in the Annex may become a Member of the League if
its admission is agreed to by two-thirds of the Assembly,
providcd ... " (Art. r (2).)
(c) "Any Member of the League may, alter two years' notice of its
intention so to do, withdraw !rom the League, provided ... "
(Art. I (3).)
(d) "Any Member of the League which has violated any covenant
of the League may be declared to be no longer a Memberof the
League by a vote of the Council concurred in by the Represen
tativcs ofailthe other Members of the League represented there
on." (Art. r6 (4).)
(e) "No such amendment [to the Covenant] shall bind any Member
of the League which signifies ils dissent therefrom, but in that
case il shall cease to be a Member of the League." (Art. 26 (2).)
72. In ail except four of the Articles of the Covenant (the exceptions
being Arts. 2, 9, 2I and 24) the expression "Member(s) of the League"
is employed; and that so in dealing both with rights and benefits con
ferred on member States and with obligations and duties imposed on
them. As examples the following are mentioned:2I6 SOUTH WEST AFRICA
Article 3: Assembly consists of Representatives of "the Members
of the League". "Each Member of the League" bas one vote.
Article 4: Representation in the Council for the Principal Powers
and "four other Members of the League" to be elected by the Assem
bly.
Article 6: Obligation imposed upon "the Members of the League"
to contribute to expenses of Secretariat in accordance with appor
tionment. ·
Article 7: Diplomatie privileges and immunities of Representatives
of "Members of the League".
Article 8: Obligation upon "the Members of the League" to inter
change information as to armaments, etc.
Article I2: Obligation upon "the Members of the League" to sub
mit disputes between themselves to arbitration.
Article IS: Obligation upon "Members of the League" to submit
disputes between themselves to the Council of the League.
Article 22: Equal opportunities for trade and commerce of "other
Members of the League".
These provisions may be used to demonstrate "the absurd results that
would ensue if the construction suggested above were not followed,
i.e., if the construction were to be that States which had never been,
or had ceased to be, Members of the League, would nevertheless be
entitled to the rights and subject to the obligations embodied in the
Covenant. The following illustrations should suffice:
The non-Member would have a seat and a vote in the Assembly
(Art. 3) and could be electcd a Member of the Council (Art. 4); it could
be held liable for a contribution to the expenses of the Secretariat
(Art. 6); and despite the fact that it had been refused membership
or expelled (in pursuance of Art. I6) by reason of acts of war perpetrated
by it, Members would nevertheless be obliged to submit information
toit in regard to their armaments, military, naval and air programmes
(Art. 8).
That only Members of the League were subject to any obligations
under the Covenant, is illustrated also by the proviso in the last para
graph of Article I, to the effect that a Member was allowed to with
draw voluntarily, on the two years' notice there prescribed, only if "ail
its obligations under this covenant shall have been fulfilled at the time
of its withdrawal".
73. Certain provisions of the Covenant were such that non-Members
of the League could benefit from them, in an indirect manner or by
the grace of the Lcague or its Members. Thus promotion of the League1s
general object "to achieve international peace and security" would
certainly benefit ail nations, whether :i'rfembersof the League or not.
But this factor would not, bv itself, enable such non-member States
to daim that they were parties to the Covenant or that its provisions
conferred any rights or legal interests upon them, as little as they would
have been prepared to accept a suggestion that the provisions of the
Covenant imposed any legal obligations upon them. Throughout the
Covenant the intention was clear that in so far as its provisions conferred
rights or legal interests or imposed legal obligations upon States, they
1 Preamble of the Covenant. COUNTER-MEMORIAL OF SOUTH AFRICA 217
did sa with reference only ta Members of the Lea~e. There were no
provisions, capable of being interpreted as stipulations for the benefit
of non-member States, resulting in "legal interests" being vested in
such States, and capable of being turned into rights by acceptance or
exercise on their part. The basic purpose of the authors of the Covenant
:in that regard was obvions, viz., to reserve rights and legal interests
for such States as were, inter alia, willing to accept also the obligation,;
of membership. ·
74. Significant illustration of the aforegoing was afforded by the
provisions of Articles 16 and 17 of the Covenant. Article 16 provided
that a Member resorting to war "in disregard of its covenants under
Articles 12, 13 or 15", would be decmed, ipso facto, ta have committed
an act of war against all other Members of the League; the latter would
then be obliged to take certain action against the "covenant-breaking
State" and to support one another in that regard. Articles 12, 13 and 15
related ta methods of peaceful settlemcnt of disputes, but only dispute&
between Members of the League: hence Article 16 applied only where a
Member had failed to resort to those methods relative to such disputes.
Article 17 proceeded ta deal with disputes between a Member and a
non-rnernber State or between non-member States inter se, in order
to make, for such cases, provision corresponding to that contained in
Article16. But as a prerequisite it prescribed that non-Members involved
in such a dispute should be "invited ta accept the obligations of Member
ship in the League for the purposes of such dispute, upon such condition,;
as the Council may deem just". Upon acceptance of the invitation the
provisions of Articles 12 to 16 would apply, with such modifications
as the Council might deem necessary: in other words, the non-mernber
State(s) would then have. the benefit of those provisions, on the same
basis as League Members, but on/y after acceptance of corresponding
Members' obligations. In the event of a non-Member's refusai to accept
the obligations of membership for the purposes of a dispute, and resorting
to war against a League l\fomber, the provisions of Article 16 would
apply "as against" it: in other words the non-Member could then expe
rience the detriment envisaged by Article 16 (for protection of a League
Member), but could not invoke the benefit thereof upon being attacked
by another State.
75. In terms of Article 22 of the Covenant the "tutelage" entrusted
to Mandatories over mandated territories would be exercised "on be
half of the League". The Mandatories were, therefore, in terms of Article
22, to be responsible to the League-in other words, either to a distinct
international entity existing apart from its Members, or to a collection
of States which togcther formed an association. On either supposition
non-Members would again be excluded from the circle of international
persans intended ta acquire or hold rights against the Mandatory.
76. Likewise an analysis of the mandate instruments made in pur
suance of the Covenant shows that in so far as legal rights or interests
were incorporated for States other than the Mandatory, whether for
their own benefit or for that of the inhabitants of mandated territories,
such rights or interests were intended ta be enjoyed by a State only
while it was a 1fomber-thus again a requirement of membership at
the time of envisaged application, i.e., of exercise of such rights ornjoy
ment of such interests.218 SOUTH WEST AFRICA
77. The preambles state that the Manda tories undertook to exercise
their Mandates "on behalf of the League". This was merely a projection
of the language used in Article 22 (2) of the Covenant, and expressed
the same concept, namely that the Mandatories were to be responsible
to the League, either as a distinct international entity, or as an associa
tion of States. On either supposition, non-Members would again be
excluded from the circle of international persans intended to exercise
rights against the Mandatories.
78. The provisions of the mandate instruments in terms of which
rights and privileges were granted to States other than the Mandatory,
render it clear that such rights and privileges were not intended to be
available to States other than Members of the League.
The expression "Member of the League of Nations" was used in ail
the B and C Mandates where provision was made for rights of entry,
movement and residence to be enjoyed by missionaries who were 1
nationals of "any State Members of the League of Nations" •
Pursuant to paragraph 5 of Article 22 of the Covenant, all the B
Mandates provided for equal opportunities for the trade and commerce
of other "Members of the League of Nations" in the said Mandated
2
terri tories •
Somewhat similar provisions in favour of "Th-fombersof the League
of Nations" were contained in some of the A Mandates 3•
In ail the aforesaid provisions, the expression "l\fomber of the League
of Nations" could have been used in one sense only, namely ?l.lembers
at the time when the intended privilege was sought to be enjoyed, and
not as including States which had never been, or had ceased to be,
Members of the League.
79. Strange anomalies, similar to those discussed in paragraph 72
above, would be involved in a suggestion that the above rights or legal
interests would be available to States which had never been Members
of the League, or had ceased being Members. Such States may have
been refused admission as l\.fombers of the League, or may have been
expelled, because of belligerency, but would nevertheless be entitled
to call the Mandatory to task concerning fortification of the Territory
or military training of the Natives, or, in the case of A and B Mandates,
insist on "open door" privileges for all their nationals.
80. The practice of States and of the League itself bears out that
non-Members were not intended to possess rights or legal interests de
riving from the Covenant or the mandate instruments. Thus:
(a) The United States of America, which did not join the League,
entered into separate treaties with certain Mandatories in order to
secure the same rights in the terri tories as Members of the League 4•
(b) When Germany, in 1925, prior to becoming a Member of the League,
1
Vide, c.g., BritishMandate for Tanganyika (Art. 8); Bclgian Mandate for
Ruanda-Urundi (Art. 8); Mandate for German Samoa (Art. 5); Mandate for South
West Africa (Art. 5) in U.N. Doc. A/70.
2 Vide, e.g., British ;\fandatfor Togoland (Art. 6); British Mandate for Tangan
yika {Art. 7); Belgian Mandate for Ruanda-Urundi (Art. 7) in U.N. Doc. A/70.
3 Vide, e.g.,Mandate for Syria and the Lebanon (Art. II); Mandate for Palestine
(Art. 18) inU.N. Doc. A/70.
• Vide McN'air, A. D., "Mandates", C.L.J.,Vol. III, No.2 (1928), p. 157; \Vright,
op. cit.p. 55; Hall, H. D., Mandates, Dependencies and Trusteeship (1948), p. 140. COUNTER-MEMORIAL OF SOUTH AFRICA 219
raised a complaint about Mandatory administration by Belgium
in Ruanda-Urundi, the Council of the League declined to reply
thereto, and the Belgian Govemment rejected the complaint, inter
alia, on the express grounds that the Covenant "confers rights
only upon States which are Members of the League of Nations"
and that so long as Germany is not a Member of the League she
has no right or title to intervene ..•1
(c) Wright refers also to an Allied exchange of notes with Germany
before the signing of the Covenant as clearly suggesting that
Members only would be entitled to the benefits of the Covenant.
One of the notes stated, inter alia, that "as soon as Germany is
admitted to the League, she would enjoy the benefit of these
provisions" (i.e., of Art. 23)2.
Sr. It is precisely for the reasons aforestated that the compulsory
jurisdiction clauses in the mandate instruments were so worded as to
make the provisions thereof available to Members of the League only.
It could never have been the intention of the Council of the League
that a State which had ceased to be a Member of the League, should
be entitled to implead before the Court a Mandatory of the League
with regard to the administration of a mandated territory-a matter in
which such State, by reason of termination of its membership, had no
further legal interest. Any contrary view must permit of the strange
result that such a State, though having no longer a seat in the League
of Nations and being unable to raise in the League for its consideration
a matter conceming the interpretation or application of the provisions
of the Mandate, could nevertheless raise the very same matter in con
tentions proccedings before the Court, possibly evcn in conflict with an
attitude unanimously resolved upon by the Council.
Nor can it be conceived that the respective Mandatories, in agreeing
to the terms of the compuJsory jurisdiction clause, intended to accept
compulsory jurisdiction at the instance of a State which, though at
one time a Member of the League, had ceased to be such.
82. The above observations would be all the more forcible if it
should be held (contrary to Respondent's submission above) 3 that the
compulsory jurisdiction clause entitled a State to rcfcr to the Court also
matters which did not affect itself or its subjccts, but solely concerned
the interests of the inhabitants of the mandated territory. The Man
datory, even though it may have been exercising its Mandate in complete
accordance with the views of the League, may nevertheless then still
have been obliged to entertain negotiations with, and be subject to
judicial proceedings instituted by, a State which was no longer a League
Member and which held a view with regard to aspects of Mandate
administration in conflict with that of the Mandatory and the League
itself.
This could not have been the intention of the authors of, or parties
to, the mandate instruments.
83. That the League itself regarded membership as a qualification for
1 Vide L. of N., O.]., l927 (No. 3), pp. 3r6-JVide also Wright, op. cil., pp.
493-494.
2 Wright, op. cit., pp. 494-495.
3 Vide paras.2-29,supra.220 SOUTH WEST AFRICA
the questioning by another State of the administration of mandatect
territories, is evidenced by the League's refusa! to answer the corn
plaints of Germany, made when the latter was not a Member of the
League, with regard to the administration by Belgium of the mandated
territory of Ruanda-Urundi 1•
It is submitted that the League would have adopted the same attitude
if this question had arisen after termination of Germany's membership,
of the League, and that Germany would not then, upon the League'S
rcfusal to entertain its complaint, have bcen cntitled to raise the same
complaint in contentious proceedings before the Court.
84. For the foregoing reasons, Respondent submits that the natural.
meaning of the phrase "another Member of the League of Nations"·
is confirmed bv reference to context and relevant extraneous circum-·
stances. •
85. Judge McNair's Descriptive Meaning.
In his separate opinion in 1950 Sir Arnold McNair suggested a meaning
different from that contended for by Respondent. He said:
"... I have endeavoured to show that the agreement between the
Mandatory and other Members of the League embodied in the Man-
date is still 'inforce'. The expression'Memberof the Leag·ueof Nations'
is descriptive, in my opinion, not conditional, and does not mean 'so·
long as the Leagtte exists and they are Members of it' 2." (Italics.
added.)
By "descriptive ... not conditional" the leamed Judge apparently
meant that the expression "Member of the League" was employed to·
identify States which were intended to have the competence provided
for in Article 7, without prescribing a condition or qualification to be
complied with by su.ch States for retaining such competence. Respond
ent has respectfully to point out, however, that to speak of descrip
tive" in this sense solves nothing, save upon reference to a point or
period of time at or during which the identification by description is.
intended to apply. Respondent has shown that upon the natural inter
pretation contended for by it, the meaning assigned to the expression_
"another Member of the League" is also "descriptive", but only with
reference to the time of intended application of the clause-which in
effect renders the competence conditional.
86. If the "descriptive" meaning is tested with reference to mcmber
ship at other conceivable points or periods of time, the following impli
cations emerge:
{ti) The time of entering i,ito the Mandate. This would:
(i) exclude States which might later become Members-a most im
probable contemplation; and
(ii) preserve the competence to invoke Article 7 for a State which_
resigns or is expelled from the League during its lifetime-again
most improbable and anomalous.
(b) Any time: The same as in (a) (ii).
(c) The time of dissoli,tion of the League: This would have rendered
1
2 A matter dealt with in para. 80 (b), supra.
International Status of South-West A/rica, Advisory Opinl.C.J.Reports I950,.
pp. I58-J 59, COUNTER-MEMORIAL OF SOUTH AFRICA 22I
the clause completely unworkable during the lifetime of the League,
since the States entitled to invoke it would ex hypothesi still have
been unascertained.
(c) The time of dissolution of the League: This would have rendered
the clause completely unworkable during the lifetime of the League,
since the States entitled to invoke it would ex hypothesi still have
been unascertained.
(d) A combination of two periods or points of time, whereby, during the
lifetime of the League, regard was to be had to the time of intended
.application of the provision in question, and after dissolution of
the League, to the time of dissolution. This would:
(i) involve the logical absurdity that the meaning of the expression
"another Member of the League" may be different at different
points of time;
{ii) distinguish between States losing membership before dissolution,
and States losing membership at dissolution-a distinction for
which there is no justification in the wording of Article 7 or
of any other provision of the Mandate;
(iii)attribute to the parties to the Mandate, at the time of its creation,
an intention to regulate consequences of a possible future dissolu
tion of the League, in circumstances incapable of being exactly
foreseen-an improbability, for which the language of Article 7
and of the Mandate as a whole again affords no justification;
{iv) more specifically attribute to the parties in 1920 an intention to
preserve, after possible future dissolution of the League, compe
tence for ex-Members to obtain adjudication by a Court the effec
tive existence of which was known to be dependent on the League
again a most improbable intent, unless coupled with the equally
improbable contemplation of special arrangements to keep such
Court alive after the League's demise.
When regard is further had to the fact that each of the above alter
natives would involve giving an unnatural and strained meaning to
the language of a compulsory jurisdiction clause, it becomes evident
that none of them can weigh up against the natural meaning supported
by the considerations dealt with above.
87. Since Applicants at one stage seemed to rely on Judge McNair's
formulation 1, Respondent in the Preliminary Objections dealt with its
applicability 2• Thereafter Applicants addressed no argument to the
Court on this aspect, although Respondent again dealt fully with the
matter in the Oral Proceedings on the Preliminary Objections 3•
88. The ]udgment and Opinions on the Preliminary Obfections.
In the Judgment and opinions on the Preliminary Objections, only
Judges Bustamante and Jessup appear to have adopted reasoning which
purported to assign a different meaning to the expression "another
Member of the League" than the one contended for by Respondent.
Their opinions will be considered hereunder. Although the Judgment
also stated its approach to this question as one of interpretation, the
context makes it clear, in Respondent's submission, that the word "in-
1 Vide 1,pp. 90, 439.
2 1,pp. 371-372.
3 Oral Proceedings, 8 Oct. 1962, afternoon. 222 SOUTH WEST AFRICA
terpretation'' was not used in the sense of assigning a meaning to a
word or expression. This will also be considered hereafter.
On the othcr hand, Judges Spiropoulos, Spender, Fitzmaurice,
Mbanefo and van Wyk exprc1sed views expressly or impliedly contrary
to that of Judge McNair • Thus Judges Spender and Fitzmaurice said:
"It is, naturally, with diffidence that we feel bound, for reasons
which will appear, to differ !rom this distinguished Judge. Lord Mc
Nair's opinion was indecd an attempt, the only one which has ever
been made, to reconcilc such a claim as that of the present Applicants
with the actual language of Article 7. But it appcars to us to have
overlooked the fact that Article 7 was never intended to apply to
any particular States as States. Nobody knew in 1920 what the
exact membership of the League would be, or what it would remain.
This membership might, and did, vary periodically a good deal.
It was a shifting membership. At one time it might comprise
States A, B and C; at another A and B might have dropped out,
and D and E have corne in. This kind of tlùng occurred from time
to time. Article 7 was not intended to apply to any of these States,
A, B, C, D or E, as such. lt was intended to apply to any State
which, at any given moment w_as-and only if and so long as it
was-a Member of the League. It was not intended to apply other
wise. Therefore, if Article 7 conferred a right on Ethiopia and
Liberia, the present Applicants, it ,vas solely as a consequence
of the fac! that they happened to fulfil the criterion specified,
namely membership of the League. Otherwise they would not have
had this right 2."
89. Separate Opinion of ]ttdge Jessttp.
In his separate opinion on Respondent's Preliminary Objections,
Judge Jessup purports to follow Lord McNair's reasoning. It 1s there
fore necessary to examine Judge Jessup's opinion in some detail.
90. At the commencement of this aspect of his opinion, Judge Jessup
states the particular question as being concerned with the operability
or inoperability, after dissolution of the League, of the compromissory
clause in its reference to "another member of the League of Nations" 3•
He then proceeds to point out that, for the purpose of answering
this question, it is not necessary to assert that the Members of the
League were "parties" to the Mandat4. They were, however, in his
view, third-party beneficiaries •
Respondent respectfully agrees that the operability or otherwise of
the rights in question dcpends on the identity or capacity of the States
to whom it was intended to be granted, and not on a question .of a
classification of the grant itself into one or other legal category. Respon
dent also agrees that valid rights were granted by the Mandate, the
only question being whether there still exist States to whom the descrip
tion relative to such rights applies, or who have the necessary qualifica
tion for the exercise of these rights.
1 South West Africa, Preliminary Obfections, Judgment, l.C.J. Reports r962,
pp. 347-348 (Judge Spiropoulos); pp. 507-508 (Judges Spender and Fitzmaurice);
p. 445 (Judge Mbanefo); pp. 655-657 (Judge van Wyk).
2 Ibid.,p. 508.
3 Ibid.,p. 408.
4 Ibid.,p. 409. COUNTER-MEMORIAL OF SOUTH AFRICA 223
9r. Judge Jessup thcreafter rcmarks that-
"the situation in regard to the rights of l\Iembers of the League as
third States beneficiaries may be more clearly seen in its basic ele
ments ... 1", (Italics added.)
by referring to one of the B Mandates, such as that of Belgium in respect
of Ruanda-Urundi, which contained an open-door provision, inter atia,
forbidding Belgium to discriminate against the nationals of other
"l\Iembers of the League" in the granting of concessions. He then con
tinues:
"It is not apparent why it would be rcasonable to say that while
it would have been a violation of Belgium's contractual obligation
so to discriminate against a French citizen in the matter of a con
cession on 18 April 1946, the day before the dissolution of the
League, Belgium would have been free so to discriminate on 2Q
April 1946. On the contrary, if Belgium had so discriminated on
20 April, France could properly (if diplomatie negotiations failed to
result in a settlement) have seized the Court of this dispute con
ceming the interpretation or application of the Mandate, relying
on Article 13 of the Mandate for Ruanda-Urundi (which contains
a compromissory clause identical with that in Article 7 of the
Mandate for South West Africa), and on Article 37 of the Statute
1
to which both Belgium and France are parties ."
Respondent, with respect, finds this reasoning difficult to under
stand. Firstly, the reference to the rights of Members of the League
"as third State beneficiaries" seems entirely pointless. As pointed out
above, the cnquiry relates to the identity or capacity of the beneficiaries,
not to the classification of the legalact whereby they became beneficiaries.
Whether they were direct parties to a contract, or third State bene
ficiaries,cannot provide any answer to the question whether the rights
were intended to vest in them only in their capacities as Members of
the League, or in their individual capacities 2•
Secondly, the conclusion reached in the last sentence of the quoted
passage, is not supported by any reasoning at all, save that it would
not be "reasonable" to assert the contrary. By this the leamed rnember
of the Court is presumably not to be understood as suggesting that
the question under consideration could be judicially resolved on the
basis of what a Judge regards as "reasonable" in the circumstances. It
seems that he rather had in mind the principle of interpretation which,
in its application to the question under discussion, would be to the
effect that the authors of the Mandate are not to be presumed to have
intended to achieve an unreasonable or anomalous result. But a mere
statement of this principle refutes its applicability in the manner
apparently contemplated by Judge Jessup. As the learned Judge him
self points out: "... the Mandates were drawn upas part of the whole
League system, a system which it was fondly hoped in 1919 would
become universai" 3•
During the existence of the "League system" there was nothing un-
1 South West Africa, Preliminary Objections,Judgment, I.C.J. Reports zp.411.
2 Ibid., pp. 509-56o (Judges Spender and Fitzmaurice).
' Ibid., p412,224 SOUTH WEST AFRICA
reasonable or anomalous involved in the contemplation that loss of
League membership would result in loss of benefits stipulated for
Members of the League: this is also conceded by Judge Jessup later in
.his opinion 1• Thus, if France had resigned from the League say on
19 April of a particular year, the position in Ruanda-Urundi would
.indeed have been that:
"... while it would have been a violation of Belgium's contractual
obligation so to discrimina te against a French citizen ... on 18 April
... Belgium would have been free so to discriminateon 20 April ...2"
It is not clear why the same result, flowing from tennination of
membership by dissolution of the League, becomes unreasonable or
anomalous or otherwise inconsistent with the 'probable intent of the
authors of the Mandate-particularly when it is borne in mind that
the authors did not purport to provide at all for such dissolution or its
-consequences, but did provide in the Mandate for machinery for amend
3
ment which could be utilized upon unforeseen changes of circumstances •
Indeed, if the result under discussion could be regarded as unreasonable
-or anomalous at ail, that would be because of failure on the part of the
parties concerned to make provision for adaptation at the stage of disso
lution, and not because of unreasonable intentions on the part of the
authors of the Mandate.
92. Judge Jessup continues to apply the same "reasonableness" argu
ment to the missionary clause in the South West Africa Mandate 4.He
·states that there is no justification "as a matter of common sense and
-reasonable construction'' for a conclusion that the provision in Article
5 of the Mandate requiring the free admission of missionaries who were
nationals of a "Member of the League" lapsed on dissolution of the
League.
Respondent is unable to follow this reasoning. As in the previous
-example Judge Jessup, notwithstanding the clear language of the instru
ment, rejects as contrary to "common sense and reasonable construc
tion" a result which seems to flow inevitably from the language used
.and from the practical design of an instrument "drawn up as part of
the whole League system".
93. Having thus already concluded on the basis of the "reasonable
ness" argument that these /rovisions in favour of "Members of the
League of Nations" survive the dissolution of the League of Nations
in favour of States as yet unspecified, Judge Jessup addresses himself
to the question whether the expression "Member of the League of
Nations" does not provide some obstacle in this regard.
The argument calling for an answer is put by him as follows:
"But, it is argued, the right of the French missionary to enter into
or reside in South West Africa depended, according to the terms of
Article 5 of the Mandate, upon the missionary being a national of a
'Member of the League'; after the dissolution of the League there
1South West Africa, Prèliminary Objections, Judgment, I.C.]. Reports 1962416.
2 Ibid.p. 41 r.
3 Art. 7(1) ofthe Mandate.
• South West Africa, Preliminary Objections, Judgment, l.C.J. Reports 1962,
:pp.4II-41z, COUNTER-MEMOlUAL OF SOUTH AFRICA 225
were no Members and hence no nationals of Members. Accordingly,
it would be said, the French missionary did lose his right to enter or
reside at the moment when the League was dissolved 1."
The reply follows immediately:
"Such an argument assumes that the reference to 'another Member
of the League' was not, as Lord McNair concluded in his Separate
Opinion in 1950 {at pp. 158-159), descriptive of a class or category,
but that it posed an imperative condition. The most reasonableinter
pretation is that the specification of beneficiaries of various provisions
in all the Mandates in terms of 'Members of the League' was the
natural result of the fact that the Mandates were drawn upas part
of the whole League system, a system which it was fondly hoped in
1919 would become universai. In drawing up agreements within the
framework of this system, it was natural to refer to other Members
of the League. Article 22 of the Covenant, in accordance with which
the Mandates were established, was part of the Treaties of Peace
ending a great war with Germany and her allies. Jt is reasonable to
suppose that the draf!ers may have had in mind a specification which
would, immediately a/ter the War, deny privileges in themandated areas
to Germans or other ex-enemies. This interpretation is borne out by the
incident of the rejection of the complaint in 1925 by Germany before
becoming a Member of the League. (Permanent Mandates Commis
sion, Minutes, 7th Session (r925), p. 54.) But the quality of League
Membership as compared subsequently to the quality of a friendly
former co-belligerent such as the United States, was not, and was not
intended to be, an essential quality or a perpetually imperative
condition 1". (Italics added, save for the words "Minutes'' and
"essential".)
Since one is in the realm of interpretation, one must ascertain what
the parties meant in 1920 by the expression "Members of the League".
From the above passage, one must deduce that in the learned Judge's
view the parties meant "ail States save Germany or other ex-enemies".
This, however, does not give full effect to his words "immediately after
the war" and "not ... a perpetually im_perative condition". Judge
Jessup apparently considered the denial to Germany or other ex-enemies
to have been intended to be of limited duration only. The correct inter
pretation would, therefore, have to be "all States save, in respect of the
period immediately after the war, Germany or other ex-enemies". No
other "class or category" of States is suggested of which the expression
"Members of the League of Nations" could be "descriptive". This analysis
in Respondent's respectful submission exposes the basic fallacy in the
reasoning, namely the confusion of the concepts of motive and intent~on.
The framers of the mandate instruments in using the above express10n,
may _possibly have been motivated by, inter alia, the various factors
menüoned by the learned Judge, i.e., the creation of the League system,
the hope that it would become universal, and the desire to exclude for
the time being benefits for ex-enemies. This motive was, however, given
effect to by the method of limiting such benefits to Members of the
League, and the intention of the parties was that it should be so limited.
The idea that the limitation on ex-enemies was to be of temporary
1 South West Africa, Preliminary Objections, Judgmel.C.JReports r96z,p.412. 226 SOUTH WEST AFRICA
duration only, was given cffect to by later according them the oppor-
tunity of joining the League. .
Before leaving tlûs point it must be emphasized that the reasons
given by Judge Jessup why rights in terms of the Mandates werc limited
to Members of the Leaguc, do not include the most important one,
namcly that the whole League system involved a reciprocity of rights
and obligations between Members. Rights in the Mandate were conse
quently limited to States which were, by virtue of their membersh_ip,
also bound by obligations towards the Mandatory. That this was the vital
motive or reason underlying the use of the expression "Member [or
Members) of the League" when granting rights m respect of the man
dated territories to States other than the Mandatories, appears indeed
to be accepted by the lcamed J udge later in his opinion 1.
9+ That the learned Judge was dealing \Vith motive and not inten
tion, appears also from the next passage which reads as follows:
"The loss by the French missionary in 1946 of the quality of
being a national of a 'Member of the League' did not introduce any
element of frustration which would impede the performance of the
Mandatory's obligation to permit his entry and residence. Granted
the reasons which have been suggested why there should have been
granted special rights to the Members in 1919, such reasons would
not be applicable in 1946; cessanteiatione legis,cessatipsa tex. If the
Mandatory claimed the right to limit the privileges to missionaries
who were nationals of States which were Members of the League
when the League came to an end, the daim would be reasonable and
it would avoid any charge that there was imposed on the Mandatory
an obligation more onerous than that which it had originally as
sumed 2."
Analysis reveals a number of different concepts in this passage.
(a) The maxim cessanterationelegis,cessatlpsa tex.
The meaning of this maxim is that when the reasons (or motive)
giving riseto a law or some other provision fall away, the law or provision
itself must lapse. Whatever the scope of this principle may be in interna
tional law generally, it is clearly inapplicable to the cîrcumstances of the
present case. Judge Jessup does not argue that the Mandate as a whole,.
or some self-contained provision thereof, lapsed when the reasons giving
rise thereto fell away, but on the contrary seeks to invoke this maxim for
the purpose of removing a qualification which had previously limited the
extent of an obligation. There can be no rule of law having the effect of
increasing or altering the scope of a State's treaty obligations (or at any
rate, obligations voluntarily assumed by the State concerned) without
further consent of the State bound thereby, and possibly against its will,
merely because the reasons which had prompted the parties in limiting
the obligations and correlative rights had, in the meanwhile, fallen away.
The practical effect of the application by analogy of the maxim cessante
ratione legis in the present case, would be that on cessation of the ratio
or reasons for limiting rights to Members of the League, this limitation
would fall away altogether and the rights be available to aUStates, irrespec-
1 South West Africa. Preliminary Objections, Judgment, J.C.J. Reports r962,
pp. 416-417.
2 Ibid., p412. COUNTER-MEMORIAL OF SOUTH AFRICA
tive of membership or past membership of the League. That this would
be the logical· result ·seems to be appreciated by Judge Jessup, and
consideration will be given below to the method wher~by he seeks to
remove this anomaly by introducing a new limitation, i.e., a limitation,
to States which were Members of the League at its dissolution 1•
But in any event, the invocation of this maxim falls down on its
basic premise, i.e., that the reasons for limiting rights to Members of the
League had fallen away prior to April I946. At least the reason of
reciprocity, which· recognized that it was unreasonable to expect a
Mandatory to be obligated to other States which had no reciprocal
obligations toit, at all times retained its validity.
(b) The "Element of Frustration".
Judge Jcssup refcrs at various stages of his·opinion to the "frustra
tion" of certain of the Mandatory's obligations 2.The argument is that
because there are States who are physically capable of exercising a ·
certain right, therefore the Mandatory's obligation in that regard is
not frustrated, and therefore continues. This is, however, an irrelevant
consideration and indeed a question-begging argument. Ifthe right in
question could, in accorclance with the intention of the parties, be
exercised only by Members of the League, and no such Members exist
any more, the provision conferring such right would be frustrated and
it could be no answer to say that there are in existence States which
are physically able to exercise the right. The frustration arises not from ·
the absence of States who are physically able to exercise the right, but
from the absence of States who possess the prescribed qualification to
exercise the right.
ln concentrating on a suggested lack of frustration of the Manda
tory's obligations, Judge Jessup appears to lose sight of the fact that
a Mandatory had certain rights as well. One of the important rights
was not to be accountable or obligated to any State who was not a
Member of the Leaguc, in the familiar and organir.ed context of the
League organization.
(c) If the Mandatory claimed to limit privileges to States which were
Members of the League at its dissolzttion, "the claim would be reasonable".
As submitted above, the logical result of applying the "cessante ra
tione" principle by suggested analogy, as Judge Jessup seeks to do, is
that the missionary rights clause would thereupon become available to
all States without limitation. In order to avoid such a result, the leamed
Judge provides a new limitation, i.e., a restriction to States which were
Members of the League at the time of its dissolution. In so doing, hein
truth abandons the proposition that the term "another Member of the
League of Nations" was descriptive and not conditional: by no method
or principle of interpretation can the words "another Member of the
League of Nations" be read to mean "another Member of the League
of Nations, or, after its dissolution,.any State which was such a Member
as at the date of dissolution". He also derives no support in this regard
from the "cessante ratione" principle-for even on bis application thereof, ·
this principle cannot serve to provide a new limitation to replace one
1 Vide sub-para. (c), infra.
2 South West Africa, PreliniinaryObjections, Judgnient,I.C.j.Rej>orts I96a,
pp. 412, 4r3, 414, 417.228 SOUTH WEST AFRICA
that has fallen away. The only manner in which that could have been
achieved, would have been by new consent on the part of the Mandatory.
And, on analysis, Judge Jessup's own formulation is indeed, in substance,
based on the hypothesis of a new act by the Mandatory in order to
provide the new limitation. Thus he postulates that the Mandatory
would claim a right to limit the privileges to States which were Members
of the League when it came to an end, that such a daim would be
reasonable, and that it would avoid a charge that there was imposed on
the Mandatory an obligation more onerous than that which it had
originally assumed.
ln drawing attention to this facet of the reasoning, Respondent is
not concerned with a mere matter of wording. Whatever wording might
be employed, the substance of the reasoning must necessarily, in order
to produce the result arrived at by Judge Jessup, amount to something
which is not interpretation of an actual legal transaction, but evaluation
of what would have been a reasonable attitude for interested parties to
adopt ifthey should have negotiated for an amendment of their transaction
in order to adapt it to the changed circumstances brought about by the
dissolution of the League. In othcr words, the substance of the reasoning
accords with its form; which is a revision of the compromissory clause
and not an interpretation thereof.
95. A further argument is raised by Judge Jessup in the following
words:
"If it be said that only such elements of the Mandates survived as
related to the welfare, etc., of the inhabitants, then the rights of mis
sionaries would be included in that group of provisions. The rights of
missionaries in the South West African Mandate are set out in Article
5, which deals in general with freedom of conscience and worship.
Surely the Mandatory should not be privileged to interfere with the
religious Iife of the inhabitants by expelling missionaries on April 20,
1946, on the technical ground that they no longer qualified as
nationals of a Member of the League. If this stiptûation pour autrui
survived the dissolution of the League despite the reference to a
descriptive qualification which was no longer applicable, other such
stipulations could also have survived ."
The first two sentences of this passage are based on an assumed
argument which has not been used by Respondent, and which it does not
acceptas correct. In the last two sentences Judge Jessup appears to do
no more than reiterate his previous argument that it would be anomalous
if the rights of missionaries were to fall away on the dissolution of the
League. He seeks however to strengthen his reasoning by using the
phrase "privileged to interfere with the religions life of the inhabitants
by expelling missionarics". If the expulsion of missionaries amounted
to an interference with the rcligious life of the inhabitants. it may have
amounted to a contravention of the general provisions of Article 5. If this
were the correct position it would entai! that, even during the lifetime
of the League, the Mandatory may possibly not have been entitled to
expel particular missionaries even although they were not nationals_ of
League Members. If the contrary view is held, i.e., that during the life
time of the League all missionaries who were not nationals of League
1South West Africa, PreliminaryObjections, Judgmenf.C.J.Reports :;962, p. 413. COUNTER-MEMORIAL OF SOUTH AFRICA 229
Members were liable to arbitrary expulsion irrespective of the effect
thereof on the religious needs of the inhabitants, there does not appear to
be any anomaly in applying the same principle after dissolution of the
League.
96. Judge Jessup next considers whether the disappearance of the
capacity of "Members of the Lcague" caused a frustration of the Man
datory's obligations, and cornes to the·conclusion that it did not1. This
is put as follows:
"It has been shown that the disappearance of the quality of
Member did not make Article 5 inoperable and the case is even
stronger here since under Article 7 the Mandatory is not the actor,
isnot the operator, so to speak ."
3
The aspect of frustration has been discussed above . Respondent
does not appreciate why the case is stronger under Article 7, where the
whole provision was explicitly rendered dependent upon a matter of
League membership, as against Article 5, where the same did not apply
to the overriding general provision for "freedom of conscience and the
free exercise of all forms of worship".
97. Judge Jessup continues:
"For the successful operation of the Mandateduring the life of the
League, the quality of being a Member of the League was not neces
sary to the operation of Article 7; as already shown there were quite
2
other reasons for referring to the Members ."
Once again, in Respondent's submission, a confusion between reasons
for referring to Members, and the intended meaning of the expression
"Member of the Leaguc". Even ifit be admitted that the founders of the
League could have achieved the object involved in their reasons by
other means (which is not readily apparent) the fact is that they sought
to achieve it by limiting rights to Members of the League.
Then follows:
"After all, these 'Members of the League' were not just concepts,
'ghosts scen in the law, elusive to the grasp'. They were actual States
or self-governing entitics whose names could be recited. The names or
the original Members were listed in the annex to the Covenant, but it
was nota fixed group; it fluctuated as new Members were admitted
or as old Members terminated their memberships. Yet at any given
moment-as for examplc the moment of the dissolution of the League
-the Mandatory would always have been able to draw up, by names,
a list of the States included in the descriptive term 'Member of the
2
League' ."
Respondent must confess with respect that it finds the meaning which
Judge Jessup seeks to assign to the expression "Members of the League"
to be "elusive to the grasp". Although he purports to deal with the
interpretation of the expression "Members of the League", Judge Jessup
at no stage indicates how by a process of interpretation a result is reached
different from the one contended for by Respondent. In the passage
1 South West Africa, Preliminary Objections. Judgment, I.C.f. Reports r962,
PP· 4r3-414.
2 Ibid., p.4q.
3 Vide para. 94 (b), supra. SOUTH WEST AFRICA
230
quoted above he emphasizes the fluctuation of the group. At what point
·of time then must a State have been included in the group in order to
acquire a right which would thereafter not be surrendered by Joss of
membership of the group? And where does Judge Jessup find anything in
the mandate instrument laying down the point of time?
Judge Jessup says that at any given moment the Mandatory would
always have been able to draw up, by names, a list of the States included
in the descriptive term "Member of the League". This statement is
correct, as far as it goes. Such a list would presumably not include
States which were no longer Members, otherwise the empha.sis on the
fluctuation and the given moment would not be intelligible. And thus,
ifthe Mandatory were at any given moment after the dissolution of the
League to have drawn up a list of Members at the moment, it would
have contained no names whatsoever. The learned Judge gives no reason
why a list drawn up at any time after the dissolution of the League
should reflect the names of States no longer Members of the League but
which were such immediately before dissolution.
98. In his further reasoning, Judge Jessup considers the change of
Courts effected by Article 37 of the Statute of the Court. This aspect is
not of importance in the particular enquiry dealt with here; Article 37
merely provides for a substitution of Courts, not of parties entitled to
invoke compromissory clauses, and Respondent does not understand
Judge Jessup to give a wider effcct thercto. He then correlates the re
sults of his enquiry as to the meaning of the phrase "Members of the
League of Nations" and of the effect of Article 37, to reach the conclusion
that Applicants have competence to invoke jurisdiction in the present
case 1•
99. Thereaftcr Judgc Jcssup considers the question of States who
during the lifetime of the League gave up their League membership. He
deals with it as follows:
"Are the conclusions which have up to this point been arrived at,
vitiatcd by a consideration of the case of a State such as Brazil which
gave up its League membership during the active life of the League?
I think not. White the League was operating, it was natural for the
Members to intend that membership, which entailed some very de
finite obligations-actual in the matter of financial contributions and
potential in the matter ofpolitical responsibilities such as might arise
under Article r6 of the Covenant-should cntail also some corre
sponding advantages. Obviously the territorial guarantees under
Article roof the Covenant wcre reciprocal and Brazil-to continue
the example-lost its right to invoke that guarantee. Similarly in
regard to economic rights in the mandatcd areas, a Mandatory might
well have said: 'My freedom is limited, I am restricted by the
obligations which I have assumed in the Mandate and I shall continue
to bear these burdens in respect of the large numbers of States
which are Members of the League. But since you have chosen to
leave the League, I am not obliged to continue to subjcct myself to
an additional burden on your behalf.' The view set out above,
following Sir Arnold McNair, that the terrn 'l\fombersof the League'
1 South West Africa, Preliminary Objections, Judgment,l.C.J. Reports z96z,
pp.4r5·416. COUNTER-MEMORIAL OF SOUTH AFRICA 231
was descriptive and not conditional, does not mean that upon
assuming the Mandate for South West Africa the Union of South
Africa was obligated to grant certain privileges to missionaries,
nationals of Germany. Nor does it mean that after the resignation of
Brazil, the Union was bound to grant those privileges to nationals
of Brazil. But the situation was very different when by common
consent in 1946 the Mandatory joined with the other States which
were then Members of the League in dissolving theLeague becausethe
United Nations had been established in its place. To assert that this
dissolution immediately freed the Mandatory of the obligations in
the Mandate such as those relating to missionaries, in regard to
which the disappearance of the League introduced no iota of frus
tration or impossibility of performance, but that at the same time
the Mandatory retained rights of authority, control and adminis
tration, cannot, in the language of the Court's 1950 Opinion 'be
justified'. What is said conceming the 'missionary' clause applies
with equal force to the provisions in the compromissory clause of
Article 7 which provided that disputes concerning these surviving
rights might be submitted to the Court. If the Mandate survived
as an institution, the Manda.tory was still subject to certain obli
gations and those obligations were owed to the States which were
Members of the League at the moment when by common consent
the League was dissolved 1."
Respondent must confess to being perplexed by this passage. Judge
Jessup apparently concedes that the parties in 1920 intended that while
the League was operating, the expression "Members of the League" was
to be given its natural meaning, and indeed for the vcry reason set out
above by Respondent 2• In other words, in 1920 the parties intended
rights to be accorded only to States which were Members of the League,
and only while thêywere Members of the League. \Vhat then is meant
by saying the expression "Members of the League" was "descriptive
and not conditional"? Does the leamed Judge suggest that the expression
bore a different meaning in 1946 from that which it had in 1920? Does
the learned J udge atterript to imply a term in the Mandate? If so, on
what grounds, and how does Judge !'.kNair's formulation becorne relevant
to such an attcmpt; and how can this passage be reconciled with the
"cessante ratione'' principle?
Judge Jessup does not answer these questions. He proceeds to refer
again to lack of frustration (which has been dealt with above) 3 ;to a
conclusion which he, wühout reasoning, considers not "justified"; to
the "common consent" of the parties in 1946 (this phrase is repeated
twice~is any significance sought to be attached to it?) to corne to the
conclusion reached before, i.e., that the compromissory clause can still
be invoked by States which were Members of the League at its dissolu
tion.
One is left with the conclusion that the leamed Judge gave wide
and exhaustive consideration to possible bases for distinguishing be
tween States which lost their membership 9f the League prior to its
' South West A/rica, Preliminary Objections, Judgmenl, l.C.J.Reports I962,
pp. 4r6-417.
2 Vide paras. 72-79, 93supra.
3 ibid .. para. 94 (b).232 SOUTH WEST AFRICA
dissolution and those which lost their membership at the dissolution,
but that none of the various bases thus considered can on analysis be
regarded as sound in law.
roo. To sum up, although Judge Jessup purports to rely on Judge
McNair's separate opinion in the 1950 Advisory Proceedings, his reason
ing in fact makes it clear that he does not assign a different meaning
to the expression "another Member of the League of Nations" than the
one suggested by Respondent.
His whole discussion of this aspect is devoted to an attempt to give
effect, not to the meaning of the words concerned, or to the intention
which the authors of the 11Iandate wished to express in using these
words, but to the reasons or motives which he considers gave rise to
such intended meaning, in so far as these reasons or motives in his
view still retain their validity. His approach isapparently that since the
methods employed by the authors of the Mandate in giving effect to
their motives have become inoperable, new methods must be created to
apply to the changed circumstances the motives which still retain their
validity.
Itneeds no argument to establish that this approach bears no relation
to the principle enunciated by Judge McNair in 1950 or indeed to any
principle of interpretation, but amounts to the imposition of a new
obligation on the Mandatory. In addition, as respectfully demonstrated
above, several of the separate stages of Judge Jessup's reasoning are
either untenable or mutually inconsistent.
101. The Judgment of the Court.
In its Judgment on the Preliminary Objections, the Court commenced
its consideration of the problem raised by the words "another l\lember
of the League of Nations", by referring to Respondent's argument that
the natural and ordinary meaning of the words should be applied 1•In
that regard it stated:
"But this rule of interpretation is not an absolute one. \Vhere
such a method of interpretation results in a meaning incompatible
with the spirit, purpose and context of the clause or instrument in
which the words are contained, no reliance can be validly placed
onit 1."
Although the Court thus stated its approach to this problem on the
basis of the application of rules of interpretation entitling it to depart
from the natural and ordinary meaning of the Article, Respondent
submits that the Judgment as a whole makes it clear that the Court's
crucial finding on thé problem did not rest on interpretation in the
strict sense. Interpretation of Article 7 would involve an ascertainment
of the meaning of the Article in the context of 1920. At no stage in the
Judgment did the Court indicate that the meaning of the expression
was, in its view, different from that suggested by Respondent. The
Court itself never used the expression "Member (or Mernbers) of the
League" in any sense which would suggest that a different meaning
was attached to it than the words seern to indicate. Reference may be
made for example, to the following passages:
"The only effective recourse for protection of the sacred trust
would be for a Member or Members of the League to invoke Article
1South West A frica, Preliminary Objections, Judgmenl, l.C.J. Reporp. 336,, COUNTER-MEMORIAL OF SOUTH AFRICA 233
7 ... 1" " •.. the right to implead the Mandatory Power before the
Permanent Court was specially and expressly conferred on the
M embers of the League .. .1''
"For the manifest scope and purport of the provisions of this
Article [i.e., Art. 7) indicate that the Members of the League were
understood to have a legal right or interest in the observance by the
Mandatory of its obligations .... 2"
"The right to take legal action conferred by Article 7 on Member
States of the League of Nations is an essential part of the Mandate
itself... .3''
"... by vesting the right of invoking the compulsory jurisdiction
against the Mandatory for the same purpose in each of the other
Members of the League ." (ltalics added.)
In fact, some passages indicate strongly that the Court assigned the
natural meaning to the expression. See in this regard:
"... an agreement was reached ... to maintain the rights of the
M embers of the League 4".
"... the literai objections derived from the words 'another Member
of the LeagueofNations' are not meaningful, since the resolution of I8
April I946 was adopted precisely with a view to averting them ... 5"
(1talics added.)
The meaning attached to the word "interpretation" in the Judgment
appears also from the following passage:
"In conclusion, any interpretation of Article 7 or more particularly
the term therein 'another Member of the League of Nations' must
take into consideration ail of the relevant facts and circumstances
relating to the act of dissolution of the League, in order to ascertain
the true intent and purpose of the Members of the Assembly in
adopting the final resolution of I8 April I946 5." (Italics added.)
To sum up, a fair reading of the Judgment suggests that its authors
accepted that the expression "another Member of the League of Nations"
in its original context bore its natural and ordinary meaning as contended
for by Respondent, but that in their view special features brought about
an adaptation to the circumstances arising on the dissolution of the
League. What these features are, will be considered at a later stage.
102. Separate Opi"nion of Judge Bustamante.
Judge Bustamante deals with the interpretation of Article 7 at two
stages of his opinion. Firstly, he states as follows:
"This isthe explanation of the participation of the States Members,
alongside the League, in the compromissory clause of the Mandate
agreements. Ea~h of these States acquires a right of legal intervention
to protect the interests of the mandated population; and this
right-which is at the same time a responsibility-extends to the
whole d11ration of the Mandate. From the entry into force of the
agreement with the Mandatory, this right of intervention of other
1 South West Ajrica, Preiiminary Obfections, }udgment, l.C.]. Reports r962, p.337.
2 Ibid.,p. 343.
3 Ibid .. p344.
• Ibid.,p. 338
5 Ibid., p.J4L .,
234 SOUTH WEST AFRICA
States Members becomes part of the legal heritage of each one of them,
not for the duration of the League of Nations, but for the duration of
the Mandate itself. Possession of this right by the States which
acquired it thus extends beyond the life of the League of Nations, 1
even if the League is dissolved before the expiry of the Mandate .''
This is later amplified as follows:
"When the text of Article 7 refers to the States enjoying the benefit
of the compromissory clause, the reference to the status of States
Members of the Leaguc of Nations must be interpreted as a means
for the individual identification of those States and not as a permanent
condition required for the role of applicant in legal proceedings. In
other words, Article 7 means, in my opinion: 'States belonging to the
League of Nations and identified with the purposes of the League
shall individually have the right to require before the Permanent
Court the f2ithful execution of the Mandate during its entire
duration' ."
The basic difficulty in advancing any suggested interpretation of this
sort is that it !ails to provide for the case of States which, during the
lifetime of the League, lost their membership by resignation or as the
result of a disciplinary measure. This in turn leads to the further diffi
cultr that there is nothing in the Article upon which such cases can be
distmguished, as a matter of interpretation, from loss of membership
due to dissolution of the League-with the result that the distinction,
if any, must needs be sought in something which is in substance not
interpretation at all, e.g., revision, new agreement or the like.
J udge Bustamantc's opinion provides no exception in this regard.
He considers that States los3 their rights when leaving the League, by
resignation or expulsion ,but that the same result did not flow from
loss of membership occasioned by the dissolution of the League, since
he regards such loss of membership not to have been voluntary 4•
ro3. Even on the wide interpretation of Article 7 suggested by the
learned Judge, this distinction between, on the one hand, a voluntary or
disciplinary Joss of membership, and an involuntary Joss on the other,
does not follow from the wording of, or indeed, from anything con
tained or suggested in, Article 7. To justify it, something like the follow
ing interpretation of the expression "another Member of the League of
Nations" would be required:
"Any State which at any stage was a Member of the League of
Nations, save however any State which either voluntarily renounced
its Membership, or was expelled from Membership ... "
Judge Bustamante does not say how he reaches this conclusion as a
matter of interpretation, save in so far as the following may have to be
regarded as directed to that end:
"It is only in this way that the purposes of the institution can be
served.
If this interpretation were not accepted, and since the League of
Nations as such has been dissolved, the legally unacceptable conclu-
1 South West Africa, Preliminary Objections, Judgment, I.C.j. Reports I962378.
2 Ibid.,p. 382.
3 Ibid.,pp. 382-383.
+ Ibid., p383. COUNTER-MEMORIAL OF SOUTH AFRICA 235
sion would be reached that the mandated populations would not
have had the possibility of recourse to international judicial author
ity in respect of possible abuses or deviations by the Mandatory.
And it must be recalled that the right of defence before the law is
expressly mentioned in the Declaration of Human Rights 1."
.And he states further:
"But the intention of the Article was not to say that: 'The States
Members of the League, so long as it continues to exist, shall indivi
dually have the rights , .. 1',etc. That latter interpretation would
render ineffective the judicial security in the Mandate in the event
of the disappearance of the League of Nations; and that cannot
have been the intention of the authors of the agreement because the
effect would be to prejudice the peoples under tutelage 2."
Since the reference to the Declaration of Human Rights in the second
.Iast passage does not appear to have been ~ntended as independent
justification for the Iearned Judge's conclusion, the whole basis of the
reasoning seems to be that any other interpretation would, by reason
of facts which have supervened and which were unforseen in 1920, give
rise to_a result which the learned Judge considers undesirable. Clearly
.such reasoning amounts to revision, and not interpretation. As was so
.aptly statcd by Judges Spender and Fitzmaurice:
"But it is not a legitimate process of interpretation to read a
provision on the basis of presumed intentions deduced in the light
of nothing but after-knowledge. One can only deduce intentions in
the light of what the parties might reasonably have been expected
to foresee at the time, and not on what those intentions might have
been ~1adthe parties had an actual foreknowledge of the future,
which they could never in fact have had 3."
104. For the reasons advanced above, Respondcnt submits that there
is no justification for assigning to the expression "anothcr Member of
the League of Nations'' any but the natural meaning.
III. Can a Term Be lmplied in the Mandate to Provide the Necessary
Adaptation to the Existence of the Provisions of Article 7 of the Mandate
a/ter the Dissolution of the Leagite of Nations.)
· ro5. In the light of the attitudes adopted by Applicants 4, this ques
tion must be considered with a view to two possibilities. Firstly, is there
scope for an implied term to the effect that on dissolution of the League
the rights of Members would be exercised by l\iembers of the new organi
zation, i.e., the United Nations?
It has already been submitted that there is no possible warrant for
finding that the Mandate contained an implied terrn providing geuerally
5
fortransferofthe League's supervisory fonctions to the United Nations •
It is inconceivable that there could, by a process of general tacit intent,
have been a transfer of the rights of Members to invoke the compro-
1
2 South West Africa, Preliminary Objections, Judgment, I.C.j. Reports r962p.379·
Ibid.,p. 382.
' Ibid., p, 515.
4 1,pp. 140-449.
J Vide Chap. IV, paras. 14-18,mpra.236 SOUTH WEST AFRICA
missory clause without there being a transfer of supervisory functions
and Applicants indeed submitted that transfer in the two respects went
hand in hand 1. Inasmuch as the object of the compromissory clause
was to protect the rights of League Members, transfer of competence
to invoke the clause must necessarily presuppoSe that also the League
Members' substantive rights have devolved on Members of the United
Nations. The same considerations which conclusively establish that there
could have been no implied term providing for succession of the United
Nations to the functions of the League 2,also establish that there could
be no implied tenn provicling for succession of the Members of the
United Nations to the rights formerly held by the Members of the League
of Nations.
As has been pointed out 3,no 1fember of the Court accepted Appli
cants' submissions in regard to such succession.
ro6. In the second instance, the question is whether the Mandate
carried an implication that ail States which were Members of the League
at its dissolution, would continue to have legal rights in the Mandate,
including the right to bring contentious proceedings against the Man
datory.
This would presuppose that the authors of the Mandate contemplated
the possibility of dissolution of the League, and meant to guard against
the disadvantages attendant thereon. As·submitted above there is no
warrant whatsoever for such a presupposition •.
In addition, this suggestion would have to involve that the authors.
of the Mandate foresaw that on dissolution of the League, there would
nevertheless still be a Court which could exercise the functions allotted
to the Permanent Court. This would attribute an unwarranted degree
of prescience to the authors of the Mandate.
ro7. The "Essentiality" of theCompromissory Clause.
At this stage it is desirable to refer to an argument used by the Court
5
in its Judgment on the Preliminary Objections • The argument is that
the compromissory clause played a vital role in the machinery of the
League relative to mandates, in that, as the Council was bound by the
unanimity rule, a ,\landatory could at will block any Council resolution,
and that for that reason the right to brîng contentions proceedings was
vested in League Members to enable them to impose the will of the
Council on the Mandatory.
Respondent has dealt with the question whether this argument is
inherently valid, and has submitted that it is not 6• At this stage Respond
ent wishes to consider what relevant consequences woukl fl.ow from
an assumptjon that the compromissory clause was intended to play the
vital role in the mandate system, as described by the Court.
It is not clearwhat use the Court made of this suggested "essentiality".
As pointed out above, the principle of essentiality or maximum cffect
may be used either for purposes of interpretation, i.e., to assign a mean-
1 1, pp.,4'.:29, 445-446.
2 Vide Chap. IV, paras. 14-18, supra.
3 Ibid., para.14, supra.
4 Ibid., para. 15.
5 South West Africa, Preliminary Objections, Judgment, 1.C.J. Reports I962,
pp. 336 ff.
6 Vide paras. 13-15, supra. COUNTER-MEMORIAL OF SOUTH AFRICA 237
.ing to a doubtful text, or as one of the factors from which an implied
·tenn could be inferred 1• It has also been indicated that although the
.Judgment is cast in the mould of an interpretation of Article 7, it in
fact accepts the ordinary meaning of the words but holds. that such
·meaning was extended as a result of the operation of certain features,
-of which "essentiality" in the sense above described, was one 2• The
-only basis upon which "essentiality" could therefore be relevant in the
instant case is as one of the factors that might be reJied upon ln an
.attempt to establish an implied agreement. For the present, the question
iswhether such an implication arises from the Mandate itself.
Dealing thcrefore with "essentiality" in the sense described in the
Judgment, i.e., that the compromissory clause was designed to impose
·the Council's will on the Mandatory, one must, in determining whether
.an implied term can be read into the Mandate, consider the intentions
or presumed intentions of the authors of the Mandate. If they had at all
-contemplated the possible future dissolution of the League, they would
have realized that the Council itself, with ail its incidents, would dis
.appear with the League. It follows that once the Council went, there
·would be no point in retaining an institution, the raison d'Btreof which
was to impose the Council's will on the Mandatory. Had there been the
-essentiality in the sense relied upon by the Court, it follows therefore
·that it would not have served as any inducement to the parties to retain
-the compulsory jurisdiction in the event of a future dissolution of the
League.
108. Another feature relied upon by the Court was the so-called
,reliability of judicial supervision. This is expressed in the following way:
"In the second place, besiclesthe essentiality of judicial protection
for the sacred trust and for the Iights of Member States under the
Mandates, and the lack of capacity on the part of the League or the
Council to invoke such protection, the right to implead the Manda
tory Power before the Permanent Court was specially and expressly
conferred on the Members of the League, evidently also because it
was the most reliable procedure of ensuring protection by the Court,
whatever might happen to or arise from the machinery of adminis
3
trative supervision .''
This passage may be interpreted in two ways. It may mean that the
:right to implead the Mandatory was conferred on the Members of the
League (in preference to conferring it on any other entity or body)
·because Members could be relied upon to exercise this right properly.
·On this interpretation, the Court was considering only the relative
merits of various possible entities as initiators of legal proceedîngs. If
·this is the correct reading of the Judgment, it is diffi.cult to see the rele
vance of this consideration to the question of survival or otherwise of
·the compromissory clause after dissolution of the League.
On the other band, it may be interpreted as meaning that the right to
·implead the Mandatory was more reliable than any other procedure,
·e.g.,than administrative supervision, because the machinery of adminis-
• Vide Chap. III, para. 27, supra.
2 Vide para. 101,supra.
3 South West Africa, Preliminary Objections, Judgmenl, I.C.J.Reports z96z,
:pp. 337-338. 238 SOUTH WEST AFRICA
trative supervision was more liable to cease functioning than the Court.
If. this is the correct interpretation, then it might be a factor tending.
to the implication of a term in the Mandate. But it would involve that
the parties in 1920 foresaw the possibility of a break-up of the League,
realized that this would or might entait the complete lapse of administrative
supervision, and therefore provided for judicial supervision which could
fonction even when administrative supervision had fallcn away.
Again, howevcr, it is quite clear that the parties in 1920 did not
foresee the possibility of a break-up of the League. And it seerns com
pletely artificial to suggest that they would in 1920 have considered the
Permanent Court to be a more durable institution than the League of
Nations, to the extent that they thought it would survive the dissolution
of the League.
109. For the reasons set out above, Respondent submits that no
term can be implied in the Mandate to provide for the existence of the
provisions of Article 7 after the dissolution of the League of Nations. ·
IV. Was any Agreement, Express or Implied, Entered into during the
Period I945-I946 providing for the Adaptation of the Compromissory
Clause to an Existence a/ter the Dissolution of the League of Nations?
no. The Charter of the United Nations Organization.
In the 1950 Advisory Opinion, the majority of the Court held as
follows:
"According to Article 7 of the Mandate, disputes between the
Mandatory State and another Member of the League of Nations
relating to the interpretation or the application of the provisions
of the Mandate, if not settled by negotiation, should be submitted
to the Permanent Court of International Justice. Having regard
to Article 37 of the Statute of the International Court of Justice,
and Article So, paragraph 1, of the Charter, the Courtis of opinion
that this clause in the Mandate is still in force and that, therefore,
the Union of South Africa is under an obligation to accept the com
pulsory jurisdiction of the Court according to those provisions ."
This passage is relied upon by the Applicants in their .Memorials 2•
It is therefore necessary to consider to what extent Article 37 of the
Statute of the Court and Article So (r) of the Charter rnay be said
to provide, or assist in providing, for an adaptation of Article 7 of the
Mandate to an existence in the absence of the League of Nations.
III. Article 37 of the Statute of the Court.
This Article is cited verbatim above 3• It goes no further than to sub
stitute the International Court of Justice for the Permanent Court of
International Justice in treaties or conventions containing a reference
to the latter.
Its effect could at most 4 be to read Article 7 of the Mandate as if
it provided as follows:
1 International Status of South- West Africa, Advisory Opinion, l.C.J. Reports I950,
p. 138.
2 1,pp. 88-89.
3 Vide para. 31, supra.
4 That isif,contrary to Respondent's submission in section C, supra, the;'.!.fandate
should be regarded as a "treaty or convention in force". COUNTER-MEMORIAL OF SOUTH AFRICA
239
"The Mandatory agrees that, if any dispute whatever should
arise bctween the l\fandatory and another Membcr of the League of
Nations relating to the interpretation or the application of the
provisions of the Mandate, such dispute, if it cannot be settled by
negotiation, shall be submitted to the International Court ofJustice."
When Article 37 of the Statute of the Court was accepted by the
Signatories to the Charter of the United Nations in the year 1945, the
League of Nations was still in existence and it continued in existence
until April 1946. Article 37 of the Statute does not in terms, and was
not intended to, amend treaties or conventions by altering qualifica
tions upon which the right to refera dispute to a tribunal or the Court
was dependent-it merely substitutcd a new forum for the adjudica
tion of disputes 1.
The effcct of Article 37 was discussed or rcferred to by various
Members of the Court in the Judgment and opinions on the Prelimi
nary Objections 2•
Respondent does not read the Judgment or any of the opinions as
giving a different interpretation to Article 37 than the one suggested
above.
II2. Article 80, Paragraph I, of the Charter.
Not only was this Article as noted above 3 referred to by the Court
in the 1950 Advisory Opinion, and relied upon by the Applicants in
1:heir Memorials 4 but Applicants placed particular emphasis on it in
the Oral Proceedings on the Preliminary Objections • However, the
Court in its Judgment on the Prcliminary Objecbons did not base Hs
fi.nding on this Article, and indeed made no mention thereof in its
reasoning.
In his dissenting opinion Judge Basdevant referred to:
"... the silence preserved in the reasoning of the Judgment with re
gard to the Applicants' reference to Article 80, paragraph 1, of the
Charter 6".
In view of this silence, which wa.s found also in the fi.ndings in the
separate opinions, Respondent wishes to refer only to the considera
tion already given to the effect of Article 80 (1) above 5, where it was
demonstrated that this Article was not intended to, and could not, pre
serve the rights of the League or its Members frorn lapsing as a result
of the dissolution of the League of Nations.
n3. (a) It is submitted therefore that the Charter of the United
Nations did not make any provision for the adaptation of the
1
Vide Ambatielos, PYeliminary Objection, Judgment, I.C.J. RepoYls z95z, p. 39.
Vide also Hudson, M. O., "The Twenty-ninth Year of the \Vorld Court", A.J.I.L.,
Vol. 45 (1951), p.15; Rosenne, op.cit.,p.282.
2 Vide,e.g.,South West Africa, Preliminary Objections, Judgmen/, I.C.J. Reports
.I96z, pp. 334·335; pp. 367-368, 376-377, 384 (Judge Bustamante); pp. 414-415 ·
(Judge Jessup); pp. 472-473, 505 (Judges Spender and Fitzmaurice); pp. 613-615
(Judge van Wyk).
3 Vide para. r ro,supra.
4 I,p. 88.
5 Vide Chap. IV, para. 24, supra.
6 South West Africa, Preliminary OMections,"Judgment, l.C.J. Reports z96z, p459. SOUTH WEST AFRICA
compromissory clause to an existence after dissolution of the League of
Nations.
(b) The further question then arises whether any other agreement
was concluded during the years 1945-1946 as a result whereof the
rights or interests 1 previously possessed by r-.tembersof the League,
would in future be possessed by States not having the qualification
of such memben,hip.
n4- Was an Agreement Concluded outside the Charter of the United
Nations during the Yetirs I945-I946?
Here again, the same two alternatives are to be borne in mind as
in the case of possible implication in the Mandate itself 2• Thus, in the
first instance, Respondent could conceivably have agreed with the United
Nations Organization (and/or its Members) with or without the con
sent of the League of Nations and/or its Members, that the rights of
Members of the League were to be transferred to Members of the
United Nations. Although, as pointed out above 3. Applicants did in
fact contend (albeit apparently not on the basis of an agreement in
1945-1946) for a general succession of the United Nations and its Mem
bers to the rîghts of the League of Nations and its Members regarding
Mandates, this contention was not accepted by any Member of the Court,
and is manifestly unsound for the reasons there set out 4•
The second possibility is an agreement between the Mandatory and
the Members of the League of Nations whereby the rîghts previously
vested in States in their capacities as Members of the League would re
main vested in them despite Joss of membership. Since the Court in its
Judgment on the Preliminary Objections relied on such an agreement,
it may be convenient to consider this topic with reference to the Court's
Judgment as will be done in the next succeeding paragraphs.
n5. The ]udgment of the Court on the Preliminary Obiections.
It has already been pointed out that the Court in its consideration of
the question whether, after dissolution of the League, there were still
States qualified to învoke the compromissory clause, stated its approach
to be one of "interpretation", but that in fact its decision rested not on
the meaning of the words of Article 7, but on various features which
5
were said to have extended the meaning •
In paragraphs ro7 and 108 above, Respondent considered the first
two features relied upon by the Court in concluding that there are still
States entitled to invoke Article 7 of the Mandate. These features are
the "essentiality" and the "reliability" of "judîcial supervision". Since
"essentialîty" and "reliability" of "judicial supervision" cannot by them
selves provide for the continuation of such "supervision" in an amended
form, they can at most supply motives or reasons which might have
prompted the parties to provide for its continuation. Assuch they may
be factors in implying an agreement. It is not stated in the Judgment
what inference is drawn from these features. They were dealt with above
1
That is, the competence to invoke the compromissory clause, as well as the
su2stantive rights and interests to which the clause was intended to relate.
Vide paras.105-lo6,supra.
3 Vide Chap. IV, para.14, supra.
• Ibid. Vidi, also paras. 15-17, following thereon.
' Vide para. 101, supra. • COUNTER-MEMORIAL OF SOUTH AFRICA 241
from the point of view of a possible implied tenn arising from the
Mandate itself 1• Respondent will next consider what value they have
as supporting material for the Court's conclusion that an agreement was
concluded in April 1946 whereby rights of States which were Members
of the League were maintained after dissolution of the League.
n6. The "essentiality" of "judicial supervision" as will be recalled,
is said to arise from the consideration that in the last resort the Council
of the League was powerless to impose its will on the Mandatory in
view of the unanimity rule, and the fact that the Council was not em
powered to institute contentious proceedings.
The merits of this argument have been considered above, where it
was submitted that it is unsound 2• Here also 3 Respondent wishes to
consider the implication of essentiality in this sense on the assumption,
for purposes of argument, that it did in fact exist during the lifetime of
the League. For present purposes, the question then is, what effect was
this consideration likely to have had in the minds of the Members of
the League at its dissolution? The circumstances during April 1946
were as follows:
(a) The League of Nations was being dissolved and the Council could
of course not survive the League itself. Since the Council would
no longer exist, there was no point in providing for the continuation
of a provision the raison d'itreof which was ex hypothesi to provide
for the enforcement of the Council's will.
(b} The United Nations Charter had corne into force on 24 Oeta
ber 1945. The Members of the League were well aware of the pro
visions of the Charter. In particular, they were well aware that the
Mandatoiy as a Member of the United Nations did not have the
power to block resolutions of the General Assembly, or of any other
organ of the United Nations, inasmuch as the unanimity rule does
not operate in that organization. If it was envisaged that supet
visory functions would be taken over by the United Nations, the
"essentiality" of the compromissory clause in the framework of the
League of Nations could not have been a consideration for reten
tion of the provisions of the clause in the framework of the United
Nations, in which organization it could not have served the pur
pose of enabling the will of the supervisory authority to be impased
on the l\fandatory. The logic of the proposition just stated 1s ac
cepted by the Court in another context. When dealing with the
fact that some Trusteeship agreements do not contain compro
missory clauses, it states:
"To deny the existence of the agreement it has been said that
Article 7 was not an essential provision of the Mandate instrument
for the protection of the sacred trust of civilisation. If therefore
Article 7 were not an essential tool in the sense indicated, the
daim of jurisdiction would fall to the ground. In support of this
argument attention has been called to the fact that three of the
four 'C'Mandates, when brought under the trusteeship provisions
of the Charter of the United Nations, did not contain in the tes-
t Vide paras. 107-108.
2 Vide paras.13-15.
3 Vide para. 107,supra. SOUTH WEST AFRICA
pective Trusteeship Agreements any comparable clause and that
these three were the Trusteeship Agreements for the territories
previously held under Mandate by Japan, Australia and New
Zealand. The point is drawn that what was essentia1 the moment
before was no longer essential the moment after, and yet the
principles under the Mandates system corresponded to those under
the Trusteeship system. This argument apparently overlooks one
important difference in the structure and working of the two systems
and loses its whole point when it is noted that under Article r8 o/
the Charter of the United Nations, 'Decisions of the GeneralAssem
bly on important questions shall be made by a two-thirds mafority
of the members present and voting', whereas the unanimity rule
prevailed in the Council and the Assembly of the League o/ Nations
under the Covenant. Thus legally valid decisions can be taken by
the General Assembly of the United Nations and the Trusteeship
Council under Chapter XIII of the Charter without the concur
rence of the trustee State, and the necessity for invoking the Per
manent Court for judicial protection which prevailed under the
Mandates system is dispensed with under the Charter 1." (Italics
added.)
It follows, therefore, that the "essentiality" relied upon by the Court
could have been of importance only in the context of the League of
Nations. Once it was decided to dissolve the League, any reason for
keeping the compromissory clause alive on the ground of such "essen
tiality" fell away.
n7. The "reliability" of "judicial supervision" has been dealt with
above relative to a possible implication of a term in the Mandate itself z,
There it was pointed out that it is not clear what was meant by relia
bility in this context. Respondent will assume however that the Court
intended to convey that "judicial supervision" was regarded as more
reliable than "administrative supervision" since the latter was more
liable to cease functioning than the former.
Respondent has already pointed out that there is nothing to support
such a finding. In any event, however, the factor of reliability in this
particular sense could hardly have been relevant at all at the time of
dissolution of the League, when the administrative supervision of the
mandate system in fact came to an end without provision for any
substitute. There could then no longer be a question of weighing up the
relative reliability of administrative and judicial supervision: the only
question could be whether the latter-if thought of at ail at that stage
was worth the trouble of special measures to keep it alive. This is dealt
with below, relative to the agreement found by the Court to have been
concluded in this regard.
II8. It is submitted, therefore, that neither the "essentiality" nor the
"reliability" of the "judicial supervision" could have played any role
in the minds ·of the Members of the League resulting in inducement to
enter into an agreement in April 1946, as found by the Court.
II9. With regard to the alleged Agreement of April z946, it is neces-
1 South West Ajl'ica,Preliminary Objections,Judgment, I.C.J. Reports z96z, p. 342.
i Vide para.108, supra. COUNTER-MEMORJAL OF SOUTH AFRJCA 243
sary to examine the actual facts from which the Court seeks to deduce
it.This tapie is first raised in the J udgmen t as follows:
"The third reason for concluding that Article 7 with particular
reference to the term 'another .Member of the League of Nations'
continues to be applicable is that obviously an agreement was
reached among all the Members of the League at the Assembly
session in April 1946 to continue the different Mandates as far as it
was practically feasible 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. This agreement is evidenced not only by the
contents of the dissoltttion resolution of 18 April 1946, but also by the
discussions relating to the qiiestion of Mandates in the First Commit
tee of the Assembly and the whole set of surrounding circumstances
which preceded, and prevailed at, the session 1." (Italics added.)
The agreement is accordingly, in the Court's view, evidenced by:
(a) the contents of the League resolution of 18 April 1946;
(b) the discussions relating to the question of Mandates in the First
Committee of the Assembly; and
(c) the whole set of surrounding circumstances which preceded, and
prevailed at, the Session.
These various features are discussed by the Court at pages 338 ff.
Judge Jcssup, in his separate opinion, relies on a statement made by
the representative of Respondent in the Meeting of the League Assern
bly on 9 April 1946 as one of the bases for his finding that the corn
promissory clause survived the dissolution of the League 2• Since
this basis of his finding overlaps with that employed by the Court,
Respondent will deal with them simultaneously.
120. Inasmuch as the compromissory clause imposed an obligation
on Respondent to submit to jurisdiction at the instance of "another
Member of the League of Nations", this obligation could only by the
consent of the Respondent be altered or extended in favour of indivi
dual States not possessing the qualification of League membership.
What has to be established therefore, is an act of consent by Respondent
to jurisdiction in favour of specified States, which act was accepted by
or on behalf of the States concemed 3•
I2I. The question therefore is whethcr South Africa undertook in
April I946 to submit to jurisdiction at the instance of States who were
at that stage Members of the League. It is clear that there was no express
submission. However, as the Permanent Court said in the Minority
Schools case:
"... there seems to be no doubt that the consent of a State to the
submission of a dispute to the Court may not only result from an
express declaration, but may also be inferred from acts condusively
establishing it 4". (Italics added.) ·
1
2 South West Africa, PreliminaryObjections, judgment, I.C.J. Reports r962,338'.
3 Ibid., pp. 417 ff.
4 Ibid.,p. 526 (Judges Spender and Fitzmaurice).
Rights of Minorities in Upper Silesia (Minority Schools), judg-No. rz, r928,
P.C.l.j.,Series A. No. r5, p.24.244 SOUTH WEST AFRICA
Later the Court repeated:
"... there is no rule laying down that consent must take the form
of an express declaration rather than that of acts conclusively estab
lishing it 1". (Italics added.)
122. The relevant facts must therefore be considered with a view to
determining whether they conclusively establish consent to jurisdiction
on Respondent's part. As regards the events leading up to and at the
Jast Session of the League Assembly, the following are of importance:
(a) At the San Francisco Conference during the discussions concern-
ing the provisions of the Charter relative to a proposed trustecship
system (in Committee II/4 on II May 1945), the South African
representative made a long and explicit statement, the full text of
which is set out in Chapter II, paragraph 31, supra.
At this stage Respondent wishes to emphasize only the conclud-
ing portion, which reads as follows: ·
"The Delegation of the Union of South Africa therefore
daims that the Mandate should be terminated and that the
territory should be incorporated as part of the Union of South
Africa.
As territorial questions are however reserved for handling
at the Jater Peace Conference where the Union of South Africa
intends to raise this matter, it is here only mentioned for the
information of the Conference in connection with the Man-
dates question. ·
As stated in the Memorandum, this is nota matter that can
be decided here, but I am directed to mention it for the infor
mation of thé Conference ·sothat South Africa may not after
wards be held to have acquiesced in the continuance of the
Mandate or the inclusion of the territory in any form of trus
teeship under the new International Organisation."
(b) The history of the resolutions whereby the United Nations made
provision for "assumption" of certain League functions and powers
was dealt with in Chapter Il, paragraphs 33-35, supra. Aspointed out
there, a specific proposa! env1saging investigation and recommenda
tion concerning possible "transfer" of "fonctions ... under the
mandate system" was rejected and nothing substituted for it. Al
though the proposa! related primarily to "administrative super
vision" it would also have resulted in at least a consideration of any
"judicial supervision" which may have existed as a part of the
mandate system. The inference seems inescapable that the omissions
were deliberate, particularly since Respondent and certain other
Manda tories had made it clear that trusteeship agreements would not
be conduded as a matter of course. The South African reservations
were particularly explicit 2•
(c) When the Members of the League of Nations met in April 1946
the position, which must have been known to the Members, was as
follows: ·
1 Rights of Mi11oritiesin Upper Silesia (Minority Schools), Judgment NIZ, I9Z8,
P.C.l.J., Series A, No. r5, p. 25. Vide also South West Africa, Preliminary Objec·
tians, Judgmenl. l.C.J. RepOYtsI96z, pp.419-420 (Judge Jessup).
2 Vide Chap. li,para. 35, supra. COUNTER-MEMORIAL 01? SOUTH AFRICA
~15.
. (i) The Charter of the United Nations made provision for the
voluntary placing of mandated territories under trusteesliip.
(ii) Sorne States had made it quite clear that they would not, or
might not, conclude trusteeship agreements. South Africa, in
particular, was clearly on record as contemplating the incor-
poration of South West Africa. ·
(iii) There had been a deliberate omission to provide f~r the contin-
. uation or adaptation of the Mandates by the United Nations 1•
I23, It is in these circumstances that Respondent's representative
made the statement.to which Judge Jessup attribut!)s such decisive im
portance. It will be recalled that the statement made on behalf of South
Africa was one ·of a series made on behal_fof the various Mandatory.
Powers (excluding Japan) pursuant to informal discµssions betwee~
them 2 •
For ~onvenience, the South African statement is here repeated in full.
It read:
·"Since the last League meeting, new circumstances have arisen
obliging the mandatory Powers to take into review the existing
arrangements for the administration of their mandates. As was fully
explained at the recent United Nations General Assembly in London,
the Union Government have deemed it incumbent upon them to con
sult the peoples of South West Africa, European and non-European
alike, regarding the form which their own future Govemment should
take. On the basis of these consultations, and having regard to the
unique circumstances which so signally differentiate South-West
Africa-a territory contiguous with the Union--,from all other man
dates, it is the intention of the Union Government, at the forth
coming sess.ionof the United N'ations General Assembly in NewYork,
to formulate its case for according South-West Africa a status under
which it would be internationally recognised as an integral part ofthe
Union. As th!'!Assembly will know, it is already administered under
the terms of the mandate as an integral par~ of the Union. In the
meantime the Union will continue to administer the territory scrupu
lously in accordance with the obligations of the mandate, for the
advancement and promotion of the interests of the inhabitants, as
she has done during the past six years when meetings of the Man-
dates Commission could not be held. ·
The disappcarance of those organs of the League concerned with
the supervision of mandates, primarily the ,Mandates Commission
and the Leaguc Council, will nccessarily preclude complete com
pliance with the letter of the mandate. The Union Govcrnment will
nevcrtheless regard the dissolution of the League as in no way
diminishing its ç,bligations under the mandate, which it will continue
to discharge with the full and proper appreciation of its responsibil
ities until such time as other arrangements are agreed upon con
cerning the future status of the territory 3."
lt Will be noted that this statement, in common with ail the other
statements by Mandatories, did not refer in terms to "judicial supervi
sion" of any kind or to any continuation of the compulsory jurisdiction
' Vide Chap. IV, para. 29,supra.
2 Vide Chap. II, para.41, supra.
; L. ofN., O.] .Spec. Sup.No. 194, pp. 32:-33; Chap. H, para. 41(b)(ii}supra. SOUTH WEST AFRICA
of the Court. The expressed intention of the South African Government
was "to administer the territory scrupulously in accordance with the
obligations of the Mandate, for the advancement and promotion of the
interests of the inhabitants, as she has done during the past six years ...
Clearly this did not comprehend any intention to submit to supervision,
"judicial" or otherwise. Submission to jurisdiction can hardly be said to
be a part of administration of a territory.
But the statement went further to point out that "complete compli
ance with the letter of the Mandate' would no longer be possible by
reason of the "disappearance of those organs of the League concerned
with the supervision of Mandates, primarily the Mandates Commission
and the League Council". Thereafter followed the sentence upon which
Judge Jessup apparently places main reliance:
"The Union Government will nevertheless regard the dissolution
of the League as in no way diminishing its obligations under the
mandate, which it will continue to dischargewith the full and proper
appreciation of its responsibilities ... " (Italics added.)
It must be noted that the word "discharge" (like the word "adminis
ter" used previously) connotes the active performance of an act, and
not the mere passive acquiescence in or submission to an act performed
or a right exercised by another, such as would be involved in submitting
to jurisdiction.
Reading the statement as a whole. it is quite clear that the South
African representative had in mind the two basic types of obligations
in terms of the Mandate. Firstly, there were the obligations to adminis
ter the territory for the well-being of the inhabitants. These obligations
were to be continued. And secondly there were the obligations regarding
supervision. These could not be complied with any more and accordingly
fell away. It seems clear, in Respondent's submission, that no attention
was specifically directed towards the compromissory clause by any
person at any stage of the discussions, most likely because it was con
sidered of no importance.
124. The two aspects of the statement which are of particular im
portance for present purposes, are:
(a) It was clearly an expression of intention only, and cannot be regarded
as a promise or undertaking intended to create rights or obligations
vis-à-vis other States 1•It was much too imprecise for that purpose,
and there was no indication of the States in whose favour any
promise, if such was intended, would operate.
(b) The expression of intention was confined to the obligations regarding
administration of the terri tory for the benefit of the inhabitants.
Judge Jessup does not suggest that the South African statement alone
contained a consent to jurisdiction-in fact he referstotheSouthAfrican
statement and those made during the same Session on behalf of other
Mandatories as "this and similar declarations" • An examination of the
other statements shows that one or other or both of the aspects em-
1 Vide in this regard McNair, A. D.The Law of Treaties(r961), pp.14-15,quoted
in South West Africa, Preliminary Objections, Judgment, l.C.J. Reports I96p. 405
(Judge Jessup).
2 South West A frica, Preliminary Objections, J udgment, l.C.]. Reports I94I8.p. COUNTER-MEMORIAL OF SOUTH AFRICA 247
phasized in subparagraphs (a) and {b) above, were also present in each
<>tfhem. Thus, the British statement contained the following:
".•. it is the intention of His Majesty's Government in the United
Kingdom to continue to administer these territories in accordance
with the general principles of the existing mandates 1". (Italics
added.)
The French statement:
"The French Government intends to pursue the execution of the
mission entrusted toit by the League of Nations. 2t considers that it
is in accordance with the spiritof the Charter ... " (Italics added.)
The New Zealand statement:
"New Zealand does not consider that the dissolution of the League
of Nations ... will have the effect of diminishing her obligations to
the inhabitants of Western Samoa, or of increasing her rights in the
territory. Until the conclusion of our Trusteeship Agreement for
Western Samoa, therefore, the territory will continue to be adminis
tered by New Zealand, in accordance with the terms of the Mandate,
for the promotion o/ the well-beingand advancement o/theinhabitants ."
(Italics added.)
The Belgian statement:
"Belgium will remain fully alive to all the obligations devolving on
members of the United Nations under Article 8o of the Charter 4."
(ltalics added.)
The Australian statement:
"After the dissolution of the League of Nations ... 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 obligations
imposed upon it for the protection and advancement o/ the inhabitants
of the mandated territories, which ifregards as having still full force
and effect ... Australia will continue to administer the present
mandated territories, in accordance with the provision of the Man
dates, for the protection and advancement o/ theinhabitants. In making
plans for the dissolution of the League, the Assembly willvery prop
erly wish to be assured as to the future of the mandated territories,
for the welfare of the peoples of which this League has been respon
sible 5." (Italics added.)
Apparently, in Judge Jessup's view, all these Mandatories must be
taken conclusively to have submitted themselves to the jurisdiction of
the new Court by making the statements from which the above passages
have been cxtracted.
The Court was, however, not mentioned-not in any of the statements,
nor in any o/ the discussions. On the contrary, the language of all the sta_te
ments was entirely inconsistent with an intention to assume a legal obligation
torenew a furiscliction which in terms was about tolapse. And the statements
1 L. of N., O.]., Spec. Sup.No. 194, p. 28; Chap. II, para. 41 (b) (i), supra.
2 Ibid.,p. 34; Chap. II. para. 41 (b) (iii)supra.
3 Ibid.,p. 43; Chap. II, para. 41 (b) (iv),supra.
4 Ibid., p.43; Chap. rr, para. 41 (b) (v),supra.
5 Ibid.,p. 47; Chap. II, para. 4c (b) {vi),supra, SOUTH WEST AFRICA
did not even touch upon the most vital aspect of any jurisdiction clause,
viz., the identity of the parties who would be entitled to invoke it.
If all the Mandatories did not intend to bind themselves in this way,
one would have the strange position of South Africa, who was openly
and avowedly pressing for incorporation of South West Africa, going
out of its way to consent to jurjsdiction, whiJe other l'\.fandatories were
not prepared to do so. It is hardly imaginable that any of the persans
present could have derived such an impression !rom the South African
statement.
125. Reference has been made above to the Chinese draft resolution
which sought to provide expressly for transfer of the League's super
visory fonctions in respect of Mandates to the United Nations, but
which resolution was not proceeded with 1.
This draft resolution was raised a/ter the declarations made on behalf
of the United Kingdom and Respondent, but be/ore the declarations on
behalf of other States 2•
It is highly significant that Dr. Lone Liang who raised the proposed
resolution, dealt only with so-called administrative supervision. He, in
common with everybody else at the final session of the League, seems
to have been entirely unaware of, or indifferent to, any so-called "judicial
supervision''.
When the final League resolution of 18 April 1946 was moved by
Dr. Liang, it once more appeared clearly:
(a) that the Assembly was not concerned with any problem arising
from the imminent lapse of "judicial supervision" but, on the
contrary,
(b) that the Assembly was only considering the future administration
of the mandated territories, particularly with reference to the
disappearance of the supervisory organs of the League, and
(c) that the statements by the Mandatories comprised only expres
sions of intention, and not undertakings or promises intended to
create rights and obligations vis-à-vis other States. Thus Dr. Liang
said, inter alia, as follows:
"It was gratifying to the Chinese delegation, as representing a
country which had always stood for the principle of trusteeship, that
ail the Mandatory Powers had announced their intention to administer
the territories under their control in accordance with their obligations
under the mandates system until other arrangements were agreed
upon 3." (Italics added.)
And the same aspects appear also in the supporting addresses of the
French and Australian delegates 4•
126. It is against this background that the League resolution of 18
April 1946 must be read. For convenience, it is here set out in full:
"The Assembly: .
Recalling that Article 22 of the Covcnant applics to certain tern
tories placed under mandate the principle that the well-being and
1
. 2 Ibid., para. 41 (c). 41 (c) and (d}, supra .
3
L. of N., O.]., Spec. Sup. Xo. 194, p. 79; Chap. Il, para. 41 (d), supra.
• Referred to in South West A/rica, Preli,ninaryObjections, judgment, 1.C.J.
Reports .1.962,pp. 340-341and quoted in Chap. Il, para. 41 (d), supra. COUNTER-ltlEMORlAL OF SOUTH AFRICA 249
development of peoples not yet able to stand alone in the strenuous
conditions of the modern world form a sacred trust of civilisation:
I. Expresses its satisfaction with the manner in which the organs
of the League have performed the functions entrusted to them with
respect to the mandates system and in particular pays tribute to the
work accomplished by the Mandates Commission;
2. Reca!ls the role of the League in assisting Iraq to progress from
its status under an 'A'mandate to a condition of complete independ
ence, welcomes the termination of the mandated status of Syria., the
Lebanon and Transjordan, which have, since the last session of the
Assembly, becomc independent members of the world community;
3. Recognises that, on the termination of the League's existence,
its fonctions with respect to the mandated terri tories will corneto an
end, but notes that Chapters XI, XII and XIII of the Charter of the
United Nations embody principles corresponding to th.osedecfa.redin
Article 22 of the Covenant of the League;
4. Takes note of the expressed intentions of the members of the
League now administering territories under mandate to continue to
administer the~ for the well-being and development of the peoples
concerned in accordance with the obligations contained in the respec
tive mandates until other arrangements have been agreed between
the United Nations and the respective manda.tory powers 1."
It will be observed that although the resolution makes specific refer
ence to fonctions under the Mandates, none of these could remotely
relate to judicial supervision.
Paragraph I expresses satisfaction with the manner in which organs
of the League performed their functions with respect to the mandate
system. This cannot refer to the Permanent Court which was not an
organ of the League, but, and this is of even greater importance, at no
time during the subsistence of the League in fact performed any fonc
tion pertaining to "judicial supervision".
Paragraph 2 makes no express or implied reference to any fonction
of the Court.
Paragraph 3 refers only to the fonctions of the League (not of the
Permanent Court) and only to such fonctions as are mentioned in Article
22 of the Covenant of the League and Chapters XI, XlI and XIII of the
Charter of the United Nations. "Judicial supervision" is not expressly or
by implication mentioned in Article 22 of the Covenant, or in Chapters
XI, Xll and XIII of the Charter.
Paragraph 4 "takes note" of the "expressed intentions" of Mandatories
to continue to "administer them for the well-being and development of the
peoplcs cancemed". {ltalics added.) Paragraph 4 th.us clearly does not
refer to judicial supervision either. 1t relates only to the administration
of M andated territories for the well-being of the inhabitants. Furthermore,
its wording clearly bears out what has bcen said about the declarations
made by the Mandatories, i.e., that they merely consisted of expressions
o~intention. Clearly they were understood by thé League in that sense.
Fmally, paragraph 4 obviously does not purport to embody any agree
ment between the States present at that meeting. The f!Xpression"takes
note of the expressed intentions" can never amount to "records the
binding undertakings" or words of similar import.
1 l..ofN., O.}.,Spec. Sup. No. 194,pp. 278-279; Chap. TT,para. 41 (f),supra. SOUTH WEST AFRICA
127. Turning now again to the Judgment of the Court and the
separate opinion of Judge Jessup, the latter will for convenience be
dealt with first.
128. Judge J essup states that:
"... one of the 'obligations' under the Mandate which the Union of
South Africa thus [i.e., by its statement of 9 April 1946) newly
agreed to respect after the dissolution of the League, was the oblig1
tion under Article 7 to submit to the jurisdiction of the Court ... "
His reasoning is to the effect that the statement of 9 April 1946 pointed
out that the disappearance of "certain organs of the League" would prevent
full compliance with the letter of the Mandate, but did not "indicate
that with regard to the obligation under Article 7 it [Respondent]
intended to rely on the fact that in some ten days [i.e., after the dissolu
tion of, the League] there would be no State which could call itself a
'Member of the League of Nations' " since "it could hardly be claimed
that 'Members'of the League were 'organs' of the League, which disap
peared". This reasoning leads the leamed Judge to the conclusion that
the obligation to submit to the jurisdiction of the Court was not excluded
from Respondent's "pledge in sweeping terms, 'to regard the dissolution
of the League as in no way diminishing its obligations under the Man
date'" 2•
The fallacy in this reasoning lies, in Respondent's respectful submis
sion, in the assumption that the obligations under the compromissory
clause were included in Respondent's "undertaking" because they were
not excluded. In truth, as demonstrated above, the wording of the
operative part of the statement read against the background of the sur
rounding circumstances, including statements on behalf of other l\'Ian
datories, renders it clear that no consent to jurisdiction was contem
plated at all, and thus that the compromissory clause was in no way
included in the statement.
129. The Court, as pointed out in paragraph n4 above, relies on an
agreement concluded amongst Members of the League of Nations in
April 1946. Respondent has set out above why it contends that no
agreement at all was concluded-i.e., because the respective Manda
tories were merely giving utterance to expressions of their intention re
lating to mandated territories without any intention of creating legal
rights thereby. This aspect need not be repeated at this stage.
Regarding the content of the alleged agreement, however, the Court
repeatedly stresses that it was in effect "to continue the different Man
dates as far as itwas practically feasible or operable ... " 3• (Italics
added.)
One must therefore ascertain in what manner the Court reaches its
finding that the compromissory clause was "practically feasible or
operable" after the dissolution of the League of Nations.
130. The Court in this regard refers to the coming into force of the
United Nations Charter, and in particular the provisions relating to
Trusteeship, as well as to the fact that the United Nations had begun to
operate in January 1946. It then continues:
1 South West A/rica, P,eliminary Objections,Judgment, l.C.J. Reports r96418..
3 Ibid., p419.
Ibid., p338. COUNTER-MEMORIAL OF SOUTH AFRICA
"When the Assembly of the League actually met subsequently in
April of the same year, it had full knowledge of these events. There
fore before it finally passed the dissolution resolution, it took special
steps to provide for the continuation of the Mandates and the Man
date System 'untîl other arrangements have been agreed between the
United Nations and the respective mandatory Powers'. It was fully
realised by ail the representatives attending the Assembly session
that the operation of the Mandates during the transitional period
was bound to be handicapped by legal technicalities and fonnalities.
Accordingly they took special steps tomeet them 1." (rtalics added.)
The Judgment proceeds:
"To provide for the situation certain to arise from the act of dis
solution, and to continue the Mandates on the basis of a sacred trust,
prolonged discussions were held both in the Assembly and in its First
Committee to find ways and means of meeting the difficulties and
makin~ up for the imperfections as far as was practicable 2." (Italics
added.)
Nevertheless, as has been mentioned above, despite these "prolonged discus
sions", nobody at any stage uttered one single word relating to the future o/
the alleged "iudicial supervi"si'on". In the circumstances, the only con
clusion can be that nobody considered that there was any "judicial
supervision" at all, or, if there was any, that it was worth retaining.
This reticence about "judicial supervision", is in marked contrast to the
attitude of Members of the League in relation to "administrative super
vision", which was repeatedty·mentioned and discussed.
131. Later, the Court expresses its conclusion as follows:
"It is clear from the foregoing account that there was a unanimous
agreement among ail the Member States present at the Assembly
meeting that the Mandates should be continued to be exercised in
accordance with the obligations therein defined although the dissolu
tion of the League, in the words of the representative of South Africa
at the meeting, 'willnecessarily preclude complete compliance with
the letter of the Mandate', i.e., notwithstanding the fact that some
organs of the League like the Council and the Permanent Mandates
Commission would be missing. In other words the common under
standing of the Member States in the Assembly-including the Man
datory Powers-in passing the said resolution, was to continue the
Mandates, however imper/cet the whole system would be a/ter the
League's dissolution, and as muchas itwould be operable, until other
arrangements were agreed upon by the Mandatory Powers with the
United Nations concerning their respective Mandates 3." (Italics
added.)
Quite apart from the fact that, in Respondent's submission, there is
no warrant for finding that any agreement was concluded at all, it
seems abundantly clear that nobody could have understood the Man
datories' attitude to be of a content higher than as set out in this pas
sage; and thus, if there had been any agreement, its content could not
have been any higher. None of the Mandatories' statements indicated any
1 South West Africa, Preliminary Objections, judgmmtJ.C.J. Reports r962. p338.
2 Ibid., p339.
3 Ibid., p341. SOUTH WEST AFRICA
undertaking, intent or contemplation of adaptation of any of the provi
sions of the Mandate to the new situation supervening after the disso-·
lution of the League. On the contrary, these statements as well as the
resolution of the League, indicated acceptance as unavoidable that some
aspects of the Mandate would become inoperable, and contained no·
suggestion of any attempt to adapt them or. to provide substitutes for
them. Thus the declarahons (of which the resolution look note) related
only to the continuation of such aspects of the Mandate as were inherently
capable of continued operation in accordance with their terms despite
the dissolution of the League: and this is, in the above passage, indicated
as the content of the "agreement" found by the Court.
132. Notwithstanding this absence of design to adapt the Mandate
in any way, the Court nevertheless held that the agreement found by
it did provide for adaptation. Thus it says:
"Manifestly, this continuance of obligations under the Mandate
could not begin to operate until the day alter the dissolution of the
League of Nations and hence the litera! objections derived from the
words 'another Member of the League of Nations' are not meaning
ful, since the resolution of 18 April 1946 was adopted precisely with
a view to averting them and continuing the Mandate as a treaty be
tween the Mandatory and the Membersof the League of Nations 1."
(Italics added.) ·
The Court does not, however, indicate on what basis it finds that
there was such an intent ("view") to avert the "literai objections".
Manifestly it cannot be derived !rom the content of the "agreement"
as found, since, as pointed out above, the avowed content of the "agree
ment" directly contradicts this view. lt does not derive !rom the pre
paratory discussions, because there was never any discussion of the
compromissory clause or of the effect which the imminent dissolution
of the I~eague would have on the expression "another Member of the
League of Nations" as it occurred in that clause or in any of the other
clauses of the various mandate instruments. And the wording of the
resolution itse1f indicates no such intent, being on the contrary, in
its pertinent paragraph 4, limited to taking note of expressed intentions
regarding administration of the mandated territories for the well-being
and development of the peoples concerned. One can only, with respect,
conclude with Judge van Wyk that this finding of the Court "has no
2
factual basis" • The Judgment reveals none-and Respondent is not
aware of any.
133. Finally, the Court states in support of its finding of an agreement
as under discussion (to maintain the status quo as far asJ'ossible) t~at
the interval between the dissolution of the League an the commg
into force of other arrangements was expected to be of short duration 3•
Respondent, with respect, does not appreciate the cogency of this
consideration. Had the parties considered that it was necessary to make
provision for a short while only, they would hardly have gone to the
trouble of entcring into a special agreement regarding "judicial super
vision" which had never been invoked during the 25 years of the League's.
existence.
1 South West A/rica, PreliminaryObjections,]udgmentI.C.J. Reports z962, p. 341.
2 Ibid., p633.
3 Ibid.,p. 342. COUNTER-MEMORIAL OF SOUTH AFRICA 253
-r34. As a last consideration regarding the alleged agreement in 1946,
'Respondent wishes to refer to Article 102 of the Charter of the United
Nations, which provides as follows:
·"1. Every treaty and every international agreement entered into by
any Member of the United Nations after the present Charter cornes
into force shall as soon as possible be registered with the Secretariat
and published by it.
2. No party to any such treaty or international agreement which has
not been registered in accordance with the provisions of paragraph
1 of this Article may invoke that treaty or agreement before any
organ of the United Nations."
In the present case, the "agreement" was allegedly entered into after
-the Charter came into force, but no such agreement has been registered.
·Consequently, if such agreement existed, the result might well be that
.it could not be invoked before this Court, which is an organ of the
United Nations.
What is more important, however, is that the non-registration indi
,cates forcibly that the participants in the resolution of 18 April 1946
did not consider that any treaty or international agreement had been
,created thereby or in regard thereto 1.
135. For the reasons aforestated, Respondent submits that no agree
ment express or implied was entered into in April 1946 involving con
·sent on the Mandatory's part to be bound to submit to the jurisdiction
,of the International Court of Justice at the instance of States which
·were Members of the League of Nations at its dissolution.
V. The Application of Some Principle of International Law, not
Arising /rom Agreement, Express or Implied
136. Respondent has dealt with the interpretation of the mandate
instrument, and with the questions whether the survival and adaptation
-of the compromissory clause might have been effected by agreement,
-.expressor impJied, entered into either at the time of the creation of the
Mandate, or during the years 1945-1946. The only remaining question is
·whether such survival and adaptation might have arisen from the oper
.ation of somc o_bjective principle of international law.
The concept of a compromissory clause being amended without the
-.consent of the party bound thereunder by the substitution of different
parties for the ones who were entitled to invoke it according toits terms,
is necessarily contrary to the basic principles of international law. No
:authority need be quoted for-the proposition that jurisdiction in inter
national law can rest only on the consent of the party impleaded.
Tt would be completely contiary to this principle to find that a com
·promissory clause could be amended in the manner set out above,
without the consent of the State bound thereby. Nevertheless various
.arguments suggesting such amendment have been propounded. Respond
ent will deal with each of them separately, but in every case it must
be kept in mind that the whole concept of jurisdiction being conferred
·by an objective rule of law is hostile to the basic principles of interna-
1 South West A frica, Prelirninary Objections, Judgrnenl, l.C.]. Reports63562, p.
,(Judge van Wyk). 254 SOUTH WEST AFRICA
tional law. This is a fundamental objection common to ail of them,
and Respondent does not propose repeating it every time.
r37. In so far as Applicants have relied on a principle of "succes
sion" in accordance with which the rights of the League and its Mem
bers would automatically devolve upon the United Nations and its
1
Members, Respondent has already dealt with this issue • It is conse
quently not nccessary to consider it again.
r38. Applicants also advanced a principle of "carry-over", by which
Members of the League at the date of its dissolution were said to have
retained the rights which they had previously possessed in their capacity
as Members.
In their Observations they stated that there was at least a de facto
carry-over of the League's responsibilities to the extent that an im
portant function of the League continued beyond the League's formai
existence • They sought to justify this suggestion as follows:
"The concept of the limited de facto survival of an entity which
has been formally dissolved is a concept familiar to civilised legal
systems. Thus, in many States of the United States of America, a dis
solved corporation remains de facto in existence until it winds up its
corporate affairs. Other States of the United States enable persons
who were corporate directors at the time of a corporate dissolution
to sue as trustees on any claim of the corporation. This is but another
way of recognising the continuing vitality of the rights and obliga
tions created by the corporation prior toits dissolution. The 'carry
over' principle of dissolved corporations is implicit in the rule that
suit may be brought on behalf of the defunct corporation only by
former directors. Civil law countries have similar legislation, which
keep alive and carry-over the legal existence of rights and duties of
dissolved entities 3."
This contention was dealt with by Respondent in its argument in
chie! in the Oral Proceedings on the Preliminary Objections• and was
not thereafter raised by Applicants again. Respondent does not propose
dealing with it again .except to submit that it is without substance.
None of the Judges relied on it, and it was dealt with only by Judge
5
van Wyk, who rejected it •
r39. Sorne of the members of the Court also employed arguments
involving principles which do not appear to arise !rom agreement, ex
press or implied. They are dealt with m the next succeeding paragraphs;
r40. In its Judgment, the Court states:
"Those States who were Members of the League at the time of its
dissolution continue to have the right to invoke the compulsory juris
diction of the Court, as they had the right to do before the dis
solution of the League. Thal right continues to exist for as long as the
Respondent holds on to the right to administer the territory under the
Mandate 6." (Italics added.)
1
2 Vide Chap. IV, paras. 14-17 and 71-73, supra.
3 I, pp. 446-448.
4 1, p. 447·
Oral Proceedings, 9 Oct. 1962, afternoon.
6 South West A/rica, PreliminaryObjeclionsJudgment, I.C.J. Reports I962, p. 6o5.
Ibid., p. 338. COUNTER-MEMORIAL OF SOUTH AFRICA 255
It is, with respect, not appreciated how the fact that Respondent
"holds on to the right to administer the Territory" can by itself serve
to keep alive the compromissory clause in Article 7 in an amended
/orm. 1f this clause lapsed on dissolution of the League, then that
would be in circumstances in which cither the substantive provisions
of the Mandate also lapsed or in which the substantive provisions still
remained in existence. ln the latter case, there would be no anomaly in
Respondent retaining administration of the Mandate without a provi
sion for compulsory jurisdiction.
In the former case, i.e., if the Mandate as a whole lapsed on dissolu
tion of the League, the fact that Respondent "holds on" to the right
to administer the territory, whether legitimatcly or not, cannot by any
rule of law result in the amendment and adaptation of the compromis
sory clause so as to impose on Respondent a compulsory jurisdiction to
which it had not consented.
141. Sir Louis Mbanefo, rested his judgment on a somewhat similar
ground. He stated as follows:
"The purpose of the Mandate, however, is the well-being and de
velopment of the peoples ofthe territories as a sacred trust ofcivilisa
tion. That purpose has not yet been achieved, and no one has sug
gestcd that it has been abandoned or rendered invalid with the dis
solution of the League.
Although the League was dissolved, the Mandate still continues
and the rights and obligations embodied in it became asit were,main
tained at the levelat which they wereonthe dissolution ofthe League.
It is on tlûs ground that the Respondent can justify its right to con
tinue to administer the territory and those States who were Members
of the League at the time of its dissolution the right to continue to
invoke the compromissory clause of Article 7. The right to invoke
Article 7 remained vested in those States who were Members of the
League at the time of its dissolution, and cont1nues notwithstanding
the termination of the League's functions .''
Sir Louis Mbanefo does not appear to use the "purpose of the Man
date'' as a factor from which, together with other factors, an implied
term relative to the continued existence of the compromissory clause
is deduced. If that nevertheless were to be the basis of his reasoning,
Respondent refers to its submissions regarding the implication of
terms 2•
However, the learned Judge appears to suggest that there is some
rule of Jaw to the effect that an institution such as the Mandate cannot
lapse before its purpose has been achieved. This, with respect, is clearly
not so. Reference need only be made to the passage quoted from The
Law of Trea3iesby Lord McNair as authority against the existence of any
such rule •
Secondly, if some such rule existed, it could hardly go further than to
provide that the institution should survive according to its terms. Sur
vival cannot "somehow operate to add stature to the institution, so to
1 South West Africa, Preliminary Obiections,Judgment, l.C.J. Reports x96z445•
2 VJde paras. IOS·I09,supra.
3 V•de Chap. III, para. 30, supra. · SOUTH WEST AFRICA
speak, giving it an added effect" 1• Such a principle could not operate
to amend the terms of the institution so as to render them operable
where otherwise they would not be. In this respect, Sir Louis Mbanefo's
reference to rights being maintained "at the level at which they were on
the dissolution of the League", is, it is respectfully submitted, fallacious.
As bas been pointed out above 2,there is a vast difference in substance
as well as in form between an obligation to be brought to Court by a
Member of the League as a functioning organization, and, on the other
band, one operating in favour of an immutable number of States quite
<livorced from the control and activities of the League.
Jt is submitted therefore that no principle of law operates to produce
the effect set out in the separate opinion of Sir Louis Mbanefo.
VI. Conclusion regarding the Efject of theDissolution of the League
r42. For the reasons set out above, Respondent submits that the
compromissory clause lapsed, also on the ground that after dissolution
of the League there were no States entitled to invoke the Clause.
E. GENERAL CONCLUSION ON PART BOF CHAPTER V
r43. The purpose of the above consideration of the comprornissory
dause was to determine whether, on the lapse of the provisions of
Article 6 of the Mandate, it could have served to keep the Mandate
alive. It is submitted that, in addition to the reasons advanced in Part
A above 3, this question must be answered in the negative also on the
grounds that-
(aJ the compromissory clause was not intended to provide for any
supervisory fonctions in respect of Mandates, and, in any event,
(b) it has itself lapsed as a result of- ·
(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 mem~
bership in the League mentioned in the clause as a requisite
for invoking it.
1 South West Africa, Preliminary Objections, Judgment, I.C.j. Reports r9517 p.
(Judges Spender and Fitzmaurice).
2 Vide paras. 72•79 and 93supra.
3 Part A, paras.12.16,supra. CHAPTER VI
SUBMISSIONS
For the reasons hereinbefore advanced, supplemented as may be
necessary in later stages of these Proceedings, Respondent, as far as
this portion of its Counter-Memorial is concemed, prays and requests:
(a) that all of Applicants' Submissions I to 9 1 be dismissed, on the
ground that the Mandate for South West Africa lapsed in toto
upon dissolution of the League of Nations;
(b) alternatively, and in the event of the honourable Court fmding
that the Mandate for South West Africa is still in existence:
that Applicants' Submissions Nos. 7 and 8 be dismissed, as well
as their Submission No. 2 in so far as it relates to petitions, an
nuai reports and supervisory fonctions, on the ground that Res
pondent's former obligations to report and account to, and to
submit to the supervision of, the Council and the League of Nations,
lapsed upon dissolution of the League and have not been replaced
by any similar obligations relative to supervision by any organ of
the United Nations or any other organization or body.
1
I,pp. 197-r98. Annexes to Book II of the Counter-Memorial filed by the
Govemment of the Republic of South Africa
AnnexA
PARTICIPATION :BY MEMBERS OF THE UNITED NATIONS IN DEBATES IN
THATÜRGANIZATION DURINGTHE YEARS r947, r948 AND 1949 CON
CERNING THE"QUESTIONOF50UT!f WESTAFRICA"
FIRST PART
Index to Statements of Alt States which Participated
ARGENTINA
r947
Fourth Committee
38th Meeting, 7 October 1947, Mr. Lucero, p. 52.
r·4Fourth Commi!tee
r3oth Meeting, 2I November r949, Mr. Tedln Uriburu, p. 2r8.
134th Meeting, 23 November r949, Mr. Tedin Uriburu, p. 242.
r39th Meeting, 28 November r949, Mr. Tedln Uriburu, p. 272.
r4oth Meeting, 29 November r949, Mr. Tedin Uriburu, p. 276.
AUSTRALIA
1947
Fourth Committee
39th Meeting, 8 October r947, Mr. Evatt, p. 58.
Plenary
ro4th Meeting, r November r947, Mr. Evatt,p. 58r.
Trusteeship Council
2nd Session, rst Part, 6th Meeting, 1 December r947, Mr.Forsyth,
p. I22.
2nd Session, rst Part, 15th Meeting, 12 December r947, Mr. For
syth,pp. 476, 494, 506; Mr. Loomes, p. 509.
2nd Session, rst Part, r8th Meeting, r6 December r947, Mr. For
syth,p. 596.
1948
Trusteeship Council
3rd Session,3rst Meeting, 23 July r948, Mr. Forsyth, p. 409.
3rd Session, 4rst Meeting, 4 August r948, Mr. Forsyth, pp. 532,
536,538. •
3rd Session, 42nd Meeting, 4 August r948, Mr. Forsyth, pp. 540,
542,545,546,547,548,549, 55I, 552.
1949
Fourth Committee
r34th Meeting, 23 November r949, Mr. Hood, p. 238.
r949
Trusteeship Council
5th Session, 25th Meeting, 20 July 1949, Mr. Hood, pp. 3ro,
3r2. COUNTER-MEMORIAL OF SOUTH AFRICA 259
BELGIUM
1947
Fourlh Committee
33rd Meeting, 27 September 1947, Mr. Ryckmans, p. 17.
38th Meeting, 7 October 1947, Mr. Ryckmans, p. 52.
44th Meeting, 14 October 1947, Mr. Ryckmans, p. 90
45th Meeting, 15 October 1947, Mr. Ryckm,ans, pp. 94, 96.
Trusteeship Council
2nd Session, 1st Part, 6th Meeting, 1 December 1947, Mr. Ryck
mans, pp. 124, 125, 126, 128.
2nd Session, 1st Part, 15th Meeting, 12 December 1947, Mr. Ryck
mans, pp. 473, 482, 489, 497,501.
2nd Session, 1st Part, 18th Meeting, 16 December 1947, Mr. Ryck
mans, pp. 576, 577, 580, 595, 604.
1948
Fourth Committee
79th Meeting, 12 November 1948, Mr. Ryckmans, p. 324.
82nd Meeting, 17 November 1948, Mr. Ryckmans, p. 362.
83rd Meeting, 18 November 1948, Mr. Ryckmans, p. 372.
84th Meeting, 19 November 1948, ·JJfrRyck"!ans, p. 375.
Trusteeship Council
3rd Session, 31st Meeting, 23 July 1948, Mr. Ryckmans, pp. 406,
410, 412.
3rd Session, 41st Meeting, 4 August 1948,Mr. Ryckmans, pp. 531,
535, 536.
3rd Session, 4znd Meeting, 4 August 1948, Mr. Ryckmans, pp. 540,
542,543,544,545,547,548,549,550,551.
1949
Fourth Committee
129th Meeting, 18 November 1949, Mr. de Bruyne, p. 211.
132nd Meeting, 22 November 1949, Mr. de Bruyne, p. 227
134th Meeting, 23 November 1949, Mr. de Bruyne, pp. 238, 242.
137th Meeting, 25 November 1949, Mr. Fenaux, p. 257.
139th Meeting, 28 November 1949, lvlr. Fenmtx, p. 272.
140th Meeting, 29 November 1949, Mr. Fenaux, pp. 280, 282.
Plenary
269th Meeting, 6December 1949, Mr. Lebeau, p. 533.
Trusteeship Council
5th Session, 1st Meeting, 15 June 1949, Mr. Ryckmans, p. 2.
5th Session, 25th l\foetin20 July 1949, Mr. Ryckmans, pp. 310,
312.
BOLIVIA
1947
Fourth Committee
40th Meeting, 9 October 1947, Mr. Moreno, p. 61.
BRAZIL
1947
Fourth Committee
33rd Meeting, 27 September 1947, Mr. Penteado, p. 16.
39th Meeting, 8 October 1947, Mr. Penteado, p. 55.260 SOUTH WEST AFRICA
I948
Fourth Committee
78th Meeting, II November I948, Mr. Maia, p. 318.
I949
Fourth Committee
131st Meeting, 2I November 1949, Mr. d'Aquino, pp. 219, 220,
222, 223.
I32nd Meeting, 22 November I949, Mr. d'Aquino, p. 223.
135th Meeting, 24 November 1949, Mr. d'Aquino, p. 243.
136th Meeting, 25 November I949, Mr. d'Aquino, p. 253
137th Meeting, 25 Novernber 1949, Mr. Jobim, p. 256.
139th Meeting, 28 November I949, Mr. ]obim, p. 269.
140th Meeting, 29 November 1949, Mr. Jobim, pp. 274, 278, 281.
Plenary
269th Meeting, 6 December 1949, Mr. d'Aquino, p. 529.
BURMA
I948
Fourth Committee
82nd Meeting, I7 Novernber 1948, U So Nuyn, p. 363.
BYELORUSSIAN SOVIET SOCIALIST REPUBLIC
1947
Fourth Committee
32nd Meeting, 26 September I947, Mr. Shmigov, p. 12.
40th Meeting, 9 October 1947, Mr. Kiselev, pp. 64, 66.
CANADA
19Fourth Committee
39th Meeting, 8 October 1947, Mr. Bradette,p. 56.
47th Meeting, 23 October I947, Mr. Bradette, p. I06.
1949
Fourth Committee
132nd Meeting, 22 November 1949, Maior-Generat Burns, p. 229.
136th Meeting, 25 November 1949, Mr. Blais, p. 250.
I38th Meeting, 26 Novernber 1949, Mr. Blais, p. 267.
139th Meeting, 28 November 1949, Mr. Blais, p. 268.
CHILE
1947
Fourth Committee
40th Meeting, 9 October 1947, Mr. Soto, p. 6r.
1949
Fourth Committee
134th Meeting, 23 November 1949, Mr. Valenzuela, p. 237.
139th Meeting, 28 November 1949, Mr. Valenzuela, p. 272.
CHINA
I947
Fourth Committee
31st Meeting, 25 September 1947, Mr. Liu Chieh, p. 6.
38th Meeting, 7 October 1947, Mr. Liu Chieh, p. sr.
40th Meeting, 9 October I947, Mr. Liu Chieh, pp. 6r, 65.
45th Meeting, 15 October 1947, Mr. Liu Chieh, p. 95. COUNTER-MEMORIAL OF SOUTH AFRICA 26r
Plenary
105th Meeting, I November 1947, Mr. Chieh, p. 598.
Trusteeship Council
2nd Session, 1st Part, 6th l\leeting, I Decernber 1947, Mr. Liu
Chieh, pp. I2I, 123, 125, 126, 131, 133.
2nd Session, 1st Part, 15th Meeting, 12 Decernber 1947, Mr. Liu
Chieh, pp. 473,478,485,486,498,501,502,503,504,505,507,
SIO, SIL
2nd Session, 1st Part, 18th Meeting, 16 Decernber 1947, Mr. Lin
Mousheng, pp. 575, 577, 578, 580; Mr. Liu Chieh, p. 601.
1948
Fourth Cornmittee
76th Meeting, 9 November 1948, Mr. Liu Chieh, p. 294.
77th Meeting, IO November 1948, Mr. Liu Chieh, p. 299.
Trusteeship Council
3rd Session, 31st Meeting, 23 July 1948, Mr. Liu Chieh, pp. 4u,
4 4·
3rd Session, 41st Meeting, 4 August 1948, Mr. Liu Chieh, pp. 532,
535 (President), 536.
3rd Session, 42nd Meeting, 4 August 1948, Mr. Liu Chieh, pp. 540,
541 (President), 542 (President), 543 (President), 548,549 (Pre
sident), 550, 551 (President).
1949
Fourth Committee
129th Meeting, 18 November 1949, Mr. Lùe, p. 208.
134th Meeting, 23 November 1949, Mr. Lfo, p. 237.
139th Meeting, 28 November 1949, Mr. Tang, p. 27I.
140th Meeting, 29 November 1949, Mr. Liu, pp. 277, 280.
Trusteeship Council ·
5th Session, 27th Meeting, 21 July 1949, Mr. Liu, p. 334.
COLOMBIA
194Fourth Committee
33rd Meeting, 27 September 1947, Mr. Yepes, p. 14.
40th Meeting, 9 October 1947, Mr. Sourdis, p. 64.
Plenarv
ro5th Meeting, 1November 1947, Mr. Yepes, p. 602.
COSTARICA
1947
Fourth Cornmittec
40th Meeting, 9 October 1947, Mr. Fournier, p. 63.
Trnsteeship Council
2nd _Session, 1st Part, 15th Meeting, 12 December 1947, Mr.
Morales, pp. 476, 488, 499, 506.
1948
Fourth Committce
82nd :Meeting, 17 November 1948, Mr. Canas, p. 365.
84th Meeting, 19 November 1948, Mr. Canas, p. 374.
Trusteeship Council
3rd Session, 42nd Meeting, 4 August 1948, Mr. Canas, pp. 541,
546, 548. SOUTH WEST AFRICA
1949
Trusteeship Council
5th Session, 1st Meeting, 15 June 1949, Mr. Canas, p. 3.
CUBA
1947
Fourth Committee
32nd Meeting, 26 September 1947, Mr. Meyer, p. 9.
39th Meeting, 8 October 1947, Mr. Meyer, p. 55.
47th Meeting, 23 October 1947, Mr. Meyer, p. ro5.
1948
Fourth Committee
82nd Meeting, 17 November 1948, Mr. PérezCisneros, pp. 355,
366.
84th Meeting, 19 November 1948, Mr. PérezCisneros, p. 373.
1949
Fourth Committee
130th Meeting, 21 November 1949, Mr. PérezCisneros, pp. 216,
217.
131st Meeting, 21 November 1949, Mr. PérezCisneros, pp. 219,
22I, 222.
134th Meeting, 23 November 1949, Mr. L6pez, p. 236.
136th Meeting, 25 November 1949, Mr. L6pez, p. 252.
139th Meeting, 28 November 1949, Mr. L6pez, p. 271.
140th Meeting, 29 November 1949, Mr. L6pez, p. 280.
CZECHOSLOV AKIA
1947
Fourth Committee
45th Meeting, 15 October 1947, Mr. Hyka, p. 95.
1948
Fourth Committee
80th Meeting, 13 November 1948, Dr. Chyle,p. 335.
DENMARK
1947
Fourth Committee
31st Meeting, 25 September 1947, Mr. Lannung, p. 8.
33rd Meeting, 27 September 1947, Mr. Lannung, p. 17.
38th Meeting, 7 October 1947, Mr. Lannung, p. 46.
40th Meeting, 9 October 1947, Mr. Lannung, p. 63.
45th Meeting, 15 October 1947, Mr. Lannung, pp. 93, 95.
47th Meeting, 23 October 1947, Mr. Lannung, p. ro6.
Plenary
104th Meeting, r November 1947, Mr. Lannung, p. 574.
1948
Fourth Committee
81st Meeting, 16 November 1948, Mr. Lannung, p. 348.
82nd Meeting, 17 November 1948, Mr. Lannung, p. 355.
Plenary
164th Meeting, 26 November 1948, Mr. Lannung, p. 577.
1949
Plenary
269th Meeting, 6 December 1949, Mr. Lannttng, p. 529. COUNTER-MEMORIAL OF SOUTH AFRICA
DOMINICAN REPUBLIC
1948
Fourth Comrnittee
82nd Meeting, 17 Novernber 1948, Mr. de Marchena, p. 361. .··-
1 9Fourth Cornmittee
130th Meeting, 21 Novernber 1949, Mr. de Marchena, pp. 217,
219.
131st Meeting, 21 Novernber 1949, Mr. de Marchena, pp. 220,222,
223.
132nd Meeting, 22 November 1949, Mr. deMarchena, pp. 223,229.
I35th Meeting, 24 November 1949, Mr. de Marchena, p. 247.
137th Meeting, 25 November 1949, Mr. de Marchena, p. 257.
139th.Meeting, 28 November 1949, Mr. de Marchena, p. 272
140th Meeting, 29 November 1949, Mr. de Marchena, pp. 274,
276. .
EGYPT
1947
Fourth Committee
32nd Meeting, 26 September 1947, Taha El-Sayed Bey Nasr, p. 13.
38th Meeting, 7 October 1947, Taha El-Sayed Bey Nasr, p. 51.
1949
Fourth Committee
137th Meeting, 25 November 1949, Mr. Farrag, pp.•257, 258.
FRANCE
1947
Fourth Comniittee
32nd Meeting, 26 September 1947, Mr. Mayer, p.II.
39th Meeting, 8 October 1947, Mr. Mayer, p. 53.
40th Meeting, 9 October 1947, Mr. Mayer, p. 66.
45th Meeting, 15 October 1947, Mr. Mayer, p. 95.
Trusteeship Council .
2nd Session, 1st Part, 6th Meeting, 1December 1947, Mr. Carreau,
pp. 126, t30,132.
2nd Session, 1st Part, 15th Meeting, 12 December 1947, Mr. Gar•
reau, pp. 471, 472, 480, 484, 500, 508, 5IO, 5n.
2nd Session, 1st Part, 18th Meeting, 16 December 1947, Mr. Car
reau,pp. 578, 579, 580, 594, 597,600, 6o3.
1948
Fourth Committee
79th Meeting, 12 November 1948, Mr. Carreau, p. 322.
Trusteèship Council
3rd Session, 31st Meeting, 23 July 1948, Mr. Carreau, pp. 407,
409, 415, 416.
3rd Session, 41st Meeting,4 August 1948, Mr. Ga"ea11, pp. 533,
3rd Session, 42nd Meeting, 4 August 1948, Mr. Carreau, pp. 542,
544, 547, 549·
1949
Fourth Committee SOUTH WEST AFRlCA
130th Meeting, 21 November 1949, Mr. Carreau, pp. 215, 217,
219.
131st Meeting, 21 November 1949, Mr. Carreau, pp. 220, 221, 222.
133rd Meeting, 23 November 1949, Mr. Carreau, p. 230.
134th Meeting, 23 November 1949, Mr. Carreau, pp. 240, 241.
136th Meeting, 25 November 1949, M r. Carreau, pp. 252, 254.
137th Meeting, 25 November 1949, Mr. Carreau, pp. 255, 256,
257.
138th Meeting, 26 November 1949, Mr. Carreau, p. 267.
139th Meeting, 28 November 1949, Mr. Carreau, pp. 269, 271.
140th Meeting, 29 November 1949, Mr. Carreau, pp. 274, 279,
281.
Trusteeship Council
5th Session, 25th Meeting, 20 July 1949, Mr. Laurentie, p. 3II.
5th Session, 27th .Meeting, 21 July 1949, Mr. Carreau, pp. 330
(President), 331 (President), 332 (President).
GREECE
194Fourth Committee
33rd Meeting, 27 September 1947, Mr. Diamantopoulos, p. 14.
1948
Fourth Committee
79tt1l\l~eting12 November 1948, Mr. Tranos, p. 320.
.S2nd ~lcetmg, 17 November 1948, Mr. Tranos, p. 363.
1 949
!·ourth Committee
131st Meeting, 21 Novernber 1q49, Mr. Lely, p. 219.
133rd l\leet~ng 23 .No,·embei 1~149.Mr. Lely, p. 232.
134tl1 :\leetmg, 2J ~o\'ember 1949. lit,.Lely, p. 238.
135th Meeting. 24 November 1949. li;JLely, p. 242.
137th Meeting, 25 ~ovember 1q49, Mr. Lely, p. 256, 257, 258.
Plenary
269th Meeting. b December 1949. Mr. Lely, p. 530.
GUATEMALA
1947
Fourth Committee
31st Meeting, 25 September 1947, Mr. l11endow, p. 8.
40th Meeting, 9 October 1947, Mr. Mendoza, p. t:>j.
Plenary
105th Meeting 1, :r-.:ovember1947, Mr. Mendoza, p. bo4.
1949
Fourth Committee
130th Meeting, zr November 1949 Mr. Mendoza, pp. 217, 218.
131st Meeting, 21 Novembt:r 1949, Mr. JHendoza, p. 223.
132nd Meeting, 22 November 1949. Air. Mendoza, pp. 226, 229.
133rd Meeting, 23 November 1949, Mt. Mmduza, p. 231.
134th Meeting, 23 November 1949, Mr. Mendoza, PP. 236. 241.
135th l\Ieeting, 24 November 1949, Mr. M enduza, p. 244.
136th Meeting, 25 November 1949, Mr. Mendoza, pp. 252, 253.
137th Meeting, 25 November 1949, Mr. Mendoza, pp. 254, 255,
257,258. COUNTER-MEMORIAL OF SOUTH AFRICA
139th Meeting, 28 November 1949, Mr. Mendoza, pp. 268, 270,
27r.
140th Meeting, 29 November 1949, Mr. Mendoza, pp. 273, 274,
141st Meeting, 2 December 1949, Mr. Mendoza, p. 282.
Plenary
269th Meeting, 6 December 1949, Mr. Mendoza, p. 533.
HAITI
194Fourth Committce
32nd Meeting, 26 September 1947, Mr. Dorsinville, p. 12.
40th Meeting, 9 October 1947, Mr. Dorsinville, p. 59.
Plenary
105th Meeting, l November 1947, Mr. Vieux, p. 606.
1948
Fourth C<;mmittee
79th Meeting, 12 November 1948, Mr. Apollon, p. 32r.
194Fourth Committee
131st Meeting, 21 November 1949, Mr. Alexis, pp. 220, 221.
132nd Meeting, 22 November 1949, Mr. Alexis, p. 228.
133rd Meeting, 23 November 1949, Mr. Alexis, p. 234.
134th Meeting, 23 November 1949, Mr. Alexis, pp. 238, 240.
136th Meeting, 25 November 1949, Mr. Alexis, p. 254-
lj7th Meeting, 25 November 1949, Mr. Alexis, pp. 255, 256.
138th Meeting, 26 November 1949, Mr. Alexis, p. 265.
139th Meeting, 28 November 1949, Mr. Alexis, pp. 268, 270, 271.
140th Meeting, 29 November 1949, Mr. Alexis, pp. 274, 278.
HONDURAS
1947
Fourth Committec
33rd Meeting, 27 September 1947, Mr. Alvarado Trochez, p. 18.
INDIA
1947
Fourth Committee
3rst Me!:'ting,25 September 1947, Rajah Sir Maharaj Singh, p. 4.
32nd Meeting, 26 September 1947, Rajah Sir Maharaj Singh, p. 9.
33rd 1'feeting.27 September 1947, Rajah Si'r Maharaj Singh,
p. 18.
38th Meeting. 7 October 1q47, Rajah Sir Marahaj Singh, p. 45.
40th Meeting, g October 1947. Ra_iahSir Maharaj Singh, p. 62.
45th Meeting, 15 October 194j. Rajah Sir Maharaj Singh, p. 93.
Plenary
ro4th Meeting, I November 1947. Raiah Sir Maharaj Singh,
p. 5i3·
ro5th Meeting, r November 19.fï,1\fr~. Pandit, p. .596.
105th Meeting, 1 November 1947, Rajah Sir Maharaf Singh,
pp. 622, 649.
1948
Fourth Committee
77th Meeting, ro November 1948, Mrs. Pandit, p. 300.266 SOUTH WEST AFRICA
81st Meeting, 16 November 1948, Mrs. Pandit, p. 351.
82nd Meeting, 17 November 1948, Mr. Shiva Rao, p. 358.
83rd Meeting, 18 November 1948, Mr. Shiva Rao, pp. 369, 370.
84th Meeting, 19 November 1948, Mr. Shiva Rao, pp. 373, 376.
Plenary ·
164th Meeting, 26 November 1948, Mrs. Pandit, p. 582.
194Fourth Committee
129th Meeting, 18 November 1949, Mr. Shiva Rao, p. 210.
131st Meeting, 21 November 1949, Mr. Shiva Rao, pp. 220, 22r.
132nd Meeting, 22 November 1949, Mr. Shiva Rao, pp. 224, 226.
134th Meeting, 23 November 1949, Mr. Shiva Rao, p. 236.
136th Meeting, 25 November 1949, Mr. Shiva Rao, pp. 251, 253.
137th Meeting, 25 November 1949, Mr. Chaudhuri, p. 255.
138th Meeting, 26 November 1949, Mr. Chaudhuri, p. 267.
139th Meeting, 28 November 1949, Mr. Chaudlrnri, pp. 268, 269.
140th Meeting, 29 November 1949, Mr. Chaudhuri, p. 277.
Plenary
269th Meeting, 6 December 1949, Mr. Chaudhuri, pp. 530, 535.
IRAQ
1947
Fourth Committee
32nd Meeting, 26 September 1947, Mr. Khalidy, p. IO.
33rd Meeting, 27 September 1947, Mr. Khalidy, p. 17.
40th Meeting, 9 October 1947, Mr. Khalidy, pp. 60, 66.
Plenarv
105th Meeting, 1 November 1947, Mr. ]amati, j,. 621.
Trusteeship Council
2nd Session, 1st Part, 6th Meeting, 1 December 1947,Mr. Khalidy,
pp. 121, 126, I28, 131, 132. .
2nd Session, 1st Part, 15th Meeting, 12 December 1947, Mr.
Khalidy, pp. 482, 492, 493, 494, 496, 500, 506, 508, 509, 512.
2nd Session, 1st Part, 18th Meeting, 16 December 1947, Mr.
Khalidy, pp. 578, 579, 580, 595, 599, 603.
1948
Fourth Committee
79th Meeting, 12 November 1948, Mr. Khalidy, p. 322.
82nd Meeting, 17 November 1948, Mr. Khalidy, p. 360.
Trusteeship Council
3rd Session, 42nd Meeting, 4 August 1948, Mr. Khalidy, pp. 540,
541,544,546,548,550.
1949
Trusteeship Council
5th Session, 25th Meeting, 20 July 1949, Mr. Khalidy, p. 312.
5th Session, 27th Meeting, 21 July 1949, Mr. Khalidy, p. 334.
ISRAEL
1949
Fourth Committee
132nd Meeting, 22 November 1949, Mr. Harman, p. 229. COVNTER-MEMORIAL OF SOUTH AFRICA
LIBERIA
1947
Fourth Committee
· · 33rd Meeting, 27 September 1947, Mr. Dennis, p. 17.
40th Meeting, 9 October 1947, Mr. Dennis, p. 61.
1949
Fourth Committee
132nd Meeting, 22 November 1949, Mr. Kolenky, p. 228.
134th Meeting, 23 November 1949, Mr. King, p. 242.
136th Meeting, 25 November 1949, Mr. King, p. 251.
139th Meeting, 28 November 1949, Mr. King, p. 26g.
140th Meeting, 29 November 1949, Mr. Cooper, p. 280.
Plenary
269th Meeting, 6 December 1949, Mr. Cooper, p. 53r.
MEXICO
1947
Fourth Committee
33rd Meeting, 27 September 1947, Mr. Padilla Nervo, p. 16.
39th Meeting, 8 October 1947, Mr. Padilla Nervo, p. 54,
Plenary
105th Meeting, 1 November 1947, Mr. Padilla Nervo, p. 591.
Trusteeship Council
2nd Session, rst Part, 6th Meeting,I December 1947, Mr. Padilla
Nervo, p. 129.
2nd Session, 1st Part, 15th Meeting, 12 December 1947, Mr.
Noriega, pp. 475, 483, 492, 497, 499,509.
2nd Session, 1st Part, 18th Meeting, 16 December 1947, Mr.
Noriega, pp. 579, 593, 594,596, 597, 598, 599, 604, 605. ·
1948
Fourth Committee
79th Meeting, 12 November 1948, Mr. Noriega, p. 326.
82nd Meeting, 17 November 1948, Mr. Noriega, p. 360.
84th Meeting, 19 November 1948, Mr. Noriega, p. 377.
Trusteeship Council
3rd Session, 31st Meeting, 23 July 1948, Mr. Padilla Nerva,
pp. 408, 414.
3rd Session, 41st Meeting, 4 August 1948, Mr. Noriega, pp. 533,
536, 538.
3rd Session, 42nd Meeting, 4 August 1948, Mr. Noriega, pp. 541,
543,544,545,546,548,549.
1949
Fourth Committee
130th Meeting, 21 November 1949, Mr. Noriega, pp. 217, 218.
131st Meeting, 21 November 19491 Mr. Noriega, pp. 219, 221.
134th Meeting, 23 November 1949, Mr. Noriega, pp. 235, 238.
136th Meeting, 25 November 1949, Mr. Noriega, p. 251.
137th Meeting, 25 November 1949, Mr. Noriega, pp. 256, 257.
139th Meeting, 28 NQvember 1949, Mr. Noriega, pp. 268, 270.
140th Meeting, 29 November 1949, Mr. Noriega, pp. 273, 277,280,
281,282. .
Trustecship Council
5th Sess10n,1st Meeting, 15 June 1949, Mr. Padilla Nerva,pp. 2, 3.268 SOUTH WEST AFRICA
5th Session, 25th Meeting, 20 July 1949, Mr. Noriega, pp. 310,.
312.
5th Session, 27th Meeting, 21 July 1949, Mr. Noriega, pp. 331.
335.
NETHERLANDS
19Fourth Committee
31st Meeting, 25 September 1947, Mr. Kernkamp, p. 8.
38th Meeting, 7 October 1947, Mr. Kernkamp, p. 52.
45th Meeting, 15 October 1947, Mr. Kernkamp, p. 93.
47th l\Ieeting, 23 October 1947Mr. Kernkamp, p. 106.
Plenary
105th Meeting, l November 1947, Mr. Kernkamp, p. 605.
1949
Fourth Committee
136th Meeting, 25 November 1949, Mr. Spits,p. 251.
NEW ZEALAND
1947
Fourth Committee
33rd Meeting, 27 September 1947, Sir Carl Berendsen,p. 17.
Trusteeship Council
2nd Session, 1st Part, 6th Meeting, 1 December 1947, Sir Carl
Berendsen,pp. 125, 126,127, 132.
2nd Session, 1st Part, 15th Meeting, 12 December 1947, Sir Carl
Berendsen, pp. 478, 508.
1948
Trusteeship Council
3rd Session, 31st Meeting, 23 July 1948, Mr. Reid, pp. 409,413.
3rd Session, 42nd Meeting, 4 August 1948,Mr. Reid, pp. 546, 550,
551, 552.
1949
Trusteeship Council
5th Session, 25th Meeting, 20 July 1949, Sir Carl Berendsen,
p. 3II.
5th Session, 27th Meeting, 21 July 1949, Sir Carl Berendsen,
. p. 334-
NICARAGUA
1947
Fourth Committee
38th Meeting, 7 October 1947, Mr. Sanson-Teran, p. 52.
NORWAY
1949
Fourth Committee
129th Meeting, 18 November 1949, Mr. Worm-Miûler, p. 212.
134th Meeting, 23 November 1949, Mr. Worm-Muller, p. 241.
PAKISTAN
1947
Fourth Committee
39th Meeting, 8 October 1947, Mr. Pirzada, p. 54- COUNTER-MEMORIAL OF SOUTH AFRICA 269
Plenary
105th Meeting, l November 1947, Mr. Pirzada, p. 617.
1948
Fourth Committee
78th Meeting, II November 1948, Mr. Chaudhury, p. 314.
19Fourth Committee
135th Meeting, 24 November 1949, Mr. Shahban, p. 243.
PANAMA
1947
Fourth Committee
33rd Meeting, 27 September 1947, Mr. Jllucca, p. 16.
40th Meeting, 9 October 1947, Mr. Morales, p. 61.
45th Meeting, 15 October 1947, Mr. Illucca, p. 94.
:PERU
1947
Fourth Committee
39th Meeting, 8 October 1947, Mr. Labarthe, p. 56.
19Fourth Committee
136th Meeting, 25 November 1949, Mr. ArévaloCarreno, p. 252.
iPHILIPPINE REPUBLIC
1947
Fourth Committee
31st Meeting, 25 September 1947, Generat Romulo, p. 7.
39th Meeting, 8 October 1947, General Romttlo, p. 57.
Trusteeship Council
2nd Session, 1st Part, 6th Meeting, 1 December 1947, Mr. Inglés,
p. 127.
2nd Session, 1stPart, 15th Meeting, 12 December 1947, Mr. Inglés,
pp. 472, 475, 495.
2nd Session, ISt Part, 18th Meeting, 16 December 1947, Mr. Inglés,
p. 600.
J."948
Fourth Committee
78th Meeting, II November 1948, Mr. L6pez, p. 316.
79th Meeting, 12 November 1948, Mr. L6pez, p. 326.
82nd Meeting, 17 November 1948, Mr. L6pez, p. 361.
Trusteeship Council
3rd Session, 31st Meeting, 23 July 1948, Mr. Carpio, pp. 408,
413, 4r6.
3rd Session, 42nd Meeting, 4 August 1948, Mr. Carpio, pp. 547,
550, 552.
:HJ49
Fourth Committee
128th Meeting, 18 November 1949, Mr. Inglés,p. 203.
129th Meeting, 18 November 1949, Mr. Carpio, p. 212.
133rd Meeting, 23 November 1949, Mr. Inglés,p. 231.
138th Meeting, 26 November 1949, Mr. Inglés,p. 267.
139th Meeting, 28 November 1949, Mr. Carpio, p. 268.
140th Meeting, 29 November 1949, Mr. Carpio, pp. 274, 278,280. 270 SOUTH WEST AFRICA
Trusteeship Council
5th Session, 25th Meeting, 20 July 1949Mr. Inglés, pp. 3og, 311.
5th Session, 27th Meeting, 21 July 1949, Mr. Ingles, pp. 329,
.330, 333, 335.
POLAND
1947
Fourth Committee
31st Meeting, 25 September 1947, Mr. Drohofowski, p. 6.
38th Meeting, 7 October 1947, Mr. Drohofowski, p. 49.
45th Meeting, 15 October 1947, Mr. Bramson, p. 94.
47th Meeting, 23 October 1947, Mr. Bramson, p. ro6.
Plenary
ro4th Meeting, l November 1947, Mr. Zebrowski, p. 589.
1948
Fourth Committee
80th Meeting, 13 November 1948, Mr. Lapter, p. 328.
82nd Meeting, 17 November 1948, Mr. Mencel, p. 359.
Plenary
164th Meeting, 26 November 1948, Mr. Zebrowski, p. 590.
1949
Fourth Committee
134th Meeting, 23 November 1949, Mr. Zebrowski, p. 240.
135th Meeting, 24 November 1949, Mr. Zebrowski, p. 248.
139th Meeting, 28 November 1949, Mr. Zebrowski, p. 271.
SWEDEN
1948
Fourth Committee
82nd Meeting, 17 November 1948, Mr. Bergvall, p. 357.
SYRIA
1947
Fourth Committee
32nd Meeting, 26 September 1947, Emir Adel Ars/an, p. II.
45th Meeting, 15 October 1947, Mr. Zeineddin, p. 94.
Plenary
ro5th Meeting, 1 November 1947, Mr. Zeineddin, p. 6r6.
1949
Fourth Committee
130th Meeting, 21 November 1949, Mr. Mughir, p. 214.
131st Meeting, 21 November 1949, Mr. Mughir, p. 222.
140th Meeting, 29 November 1949, Mr. Mughir, p. 279.
THAILAND
1949
Fourth Committee
128th Meeting, 18 November 1949, Prince Wan Waithayakon,
p. 208.
133rd Meeting, 23 November 1949, Prince Wan Waithayakon,
p. 232.
139th Meeting, 28 November 1949, Prince Wan Waithayakon,
p. 271.
140th Meeting, 29 November 1949, Prince Wan Waithayakon,
pp. 275, 279, 282. COUNTERsMEMORIAL OF SOUTH AFRICA 271
Plenary ,.
269th Meeting, 6 December~ll949, .Prince Wan Waith.ayakon,
p. 534.
UKRAIN IAN SOVIET SOCIALIST REPUBLIC
1947 . :.~~
Fourth Committee
32nd Meeting, 26 September 1947, Mr. Voina, p. 13.
40th Meeting, 9 October 1947, ·Mr. Voina, p. 59.
UNION' OF.SOUTH AFRICA
1947
· Fourth Committee . i}
31st Meeting, 25 September 1947, Mr. Lawrence',p. 3.
32nd Meeting, 26 September 1947, Mr. Lawrence, p. 9.
33rd Meeting, 27 September 1947, Mr. Lawrence, p. 15'.
·'38th Meeting, 7 October 1947, Mr. Lawrence,-p. 47.
40th Meeting, 9 October 1947, Mr. Lawrence, p. 64.
47th Meeting, 23 October 1947, Mr. Andrews, p. 106. ~: '.-.-.·
Plena.ry .
165th Meeting, r Novernl;ier 1947, Mr. Lawrence, pp. 626, 649.
1948 . . •. . u .,· .
Fouith Committee 1 • ,.
76th Meeting, 9 November 1948, Mr. Louw, pp. 287, 296.
77th Meeting, IO November 1948, Mr. Louw, p. 297.
78th Meeting, II November 1948, Mr. Louw, p. 307.
· 81st Meeting, 16 November 1948, Mr. Louw, pp. 340, 343, 344.
82nd Meeting, 17 November 1948, Mr. Louw, p. 366. ·
. 83rd Meeting, 18 November 1948, Mr.·Louw, pp. 367, 370.
84th Meeting, 19 November 1948, Mr. Louw, pp. 376, 377.
Plenary '.{'
164th Meeting, 26 November 1948, Mr. _Louw, p. 586.
1949
Fourth Committee
.128th Meeting, 18 November 1949, Mr. Jooste, p. 199.
129th'Meeting, 18 November 1949, Mr. Jooste, p. :21:2.
130th Meeting, 21 November 1949, Mr. Jooste, pp. 213,217,218.
131st Meeting, 21 November 1949, Mr. Jooste, pp. :220,222.
132nd Meeting, 22 November 1949, Mr. Jooste, pp. 224, 226.
134th Meeting, 23 November 1949, Mr. Jooste, pp. 239, 241. p
135th Meeting, 24 November 1949, Mr. Jooste, p. 242. ·
136th Meeting, 25 November 1949, Mr. Jooste, pp. 249, 250, 253.
137th Meeting, 25 November 1949, Mr. Jooste, pp. 254, 258.
138th Meeting; 26 November 1949, Mr. Eustace, p. 267.
139th Meeting, 28 Novembér1949, Mr. Jooste, p. 270.
Plenary
269t'h Meeting, 6 December 1949, Mr. Jooste, pp. 523, 536, 537·
UNION OF SOVIET SOCIALIST REPUBLICS (1 ,,
1947
Fourth Committee
32nd Meeting,-26September 1947, Mr. Stein, p. 9.
33rd Meeting, 27 September 1947, Mr. Tsarapkin, p. 18.
38th Meeting, 7 October 1947, Mr. Stein, p. 52.272 SOUTH WEST AFRICA
40th Meeting, 9 October 1947, Mr. Stein, p. 65.
45th Meeting, 15 October 1947, Mr. Stein,p. 96.
Plenary
105th Meeting, 1 November 1947, Mr. Stein,p. 6n.
1948
Fourth Committee
80th Meeting, 13 November 1948, Mr. Tsarapkin, p. 337.
Srst Meeting, 16 November 1948, Mr. Tsarapkin, p. 346.
82nd Meeting, 17 November 1948, Mr. Tsarapkin, p. 357.
Trusteeship Council
3rd Session, 31st Meeting,23 July 1948, Mr. Tsarapkin, pp. 406,
408, 409, 417.
3rd Session, 41st Meeting, 4 August 1948,Mr. Tsarapkin, pp. 537,
558.
3rd Session, 42nd Meeting, 4 August 1948,Mr. Tsarapkin, pp. 541,
551.
1949
Fourth Committee
134th Meeting, 23 November 1949, Mr. Zarubin, p. 240.
135th Meeting, 24 November 1949, Mr. Zarubin, p. 242.
137th Meeting, 25 November 1949, Mr. Zarubin, p. 258.
139th Meeting, 28 November 1949, Mr. Zarubin, p. 271.
Trusteeship Council
5th Session, 25th Meeting, 20 July 1949, Mr. Saldatav, p. 311.
5th Session, 27th Meeting, 21 July 1949, Mr. Saldatav, pp. 331,
332, 333, 335.
UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN
JRELAND
1947
Fourth Committee
33rd Meeting, 27 September 1947, Mr. Battamley, p. 14.
47th Meeting, 23 October 1947, Mr. Davies, p. 105.
Trusteeship Council
2nd Session, 1st Part, 6th Meeting, 1 December 1947, Sir Alan
Burns, p. r25.
2nd Session, 1st Part, 15th Mee•.ing, 12 December 1947, Sir Alan
Burns, p. 507.
1948
Fourth Committee
77th Meeting, IO November 1948, Mr. Gardan-Walker, p. 298.
Trusteeship Council
3rd Session, 41st Meeting, 4 August 1948, Sir Alan Burns,
pp. 531, 536.
3rd Session, 42nd Meeting, 4 August 1948, Sir Alan Burns,
pp. 540,547,548,551,552.
1949
Fourth Committee
131st Meeting, 21 November 1949, Sir Terence Shane, p. 222.
133rd Meeting, 23 November 1949, Sir Terence Shane, p. 233.
134th Meeting, 23 November 1949, Sir Terence Shone, p. 240.
135th Meeting, 24 November 1949, Sir Terence Shone, p. 246. COUNTER-MEMORIAL OF SOUTH AFRICA
273
137th Meeting, 25 November 1949, Mr. Fletcher-Cooke, p. 257.
139th Meeting, 28 November 1949, Sir Terence Shane, pp, 169,
272. l
140th Meeting, 29 November 1949, Sir Terence Shone, p. 276.
Plenary ., ,,
269th Meeting, 6 December 1949, Sir Terence Shone, p. 534.
Trusteeship Council ··
5th Session, 27th Meeting, 21 July 1949, Sir Alan Burns, pp.,331,
332. ..
UNITED STAT,, OF.AMERICA
1947
Fourth Committee
31st Meeting, 25 September 1947, Mr. Dulles, p. 5.
33rd Meeting, 27 September 1947, Mr. Dulles, p. 18.
38th Meeting, 7 October 1947, Mr. Dulles, p. 50.
·40th Meeting, 9 October r947, Mr. Sayre, p. 65.
-:45th Meeting, I5 October 1947, Mr. Sayre, p. 94..
Plènary .
104th Meeting, 1 Noverilber 1947, Mr. Sayre, p. 577.
Trusteeship Council .
2nd Session, 1st Part, 6th Meeting, 1 December 1947, Mr: G_erig,
p. 130. .
2nd Session; rst Part, 15th Meeting, 12 December 1947, Mr.
Sayre (President), p. 470. :! •
2nd Session, Ist Part, 15th Meeting, 12 December 1947; Mr.
Gerig, pp. 481, 482; 489;,490, 495, 497, 499, 501, 503, 505.
2nd Session; rst Part, 18th Meeting, 16 J?ecerriber 1947, Mr.
Gerig,pp. 576, 580, 600. p ,,:
1948
Fourth Committee .
81st Meeting, 16 November 1948, Mr. Sayre, p. 350.
82nd Meeting, I7 November 1948, Mr. Sayre, p. 363. .
Trusteeshlp Council , .,,
3rd Session, 3rst Meeting, 23 July 1948, Mr. Sayre, p. 410. ·
3rd Session, 4rst Meeting,4 August 1948, Mr. Sayre, p. 534.
3rd Sessio!).,"42nd Meeting, 4 August 1948, .Mr. Sayre, pp. 539,
540, 541, 542, 543, 544, 546,547, 548, 549. "
1949
F'ourth Committee ·,. ·
131st Meeting, 21 November r949, Mr. Fahy, p. 221. ,,·.,
133rd Meeting, 23 November 1949, Mr. Fahy, p. 231. ·
134th Meet,ing,23 Noveml;ier-1949, Mr. Fahy, pp.·238, 240.
137th M~eting, 25 November r949, Mr. Fahy,_pp. 254, 255, 256.
139th Meeting, 28 November 1949, }(Ir.Fahy, pp. 268, 269.
140th Meeting, 29 Novèmber r949, Mr. Fahy, pp. 276, 282.
Plenary
269th Meeting, 6 December 1949, Mr. Fahy, p. 533.
Trusteeshlp Council
5th Session, 1st Meeting, 15 June 1949, Mr. Sayre, pp. 2, 3.
5th Session, 25th Meeting, 20 July 1949, Mr. Sayre, pp. 309, 3II.
5th Session, 27th Meeting, 2I July 1949, Mr. Sayre, p. 332. 274 SOUTH WEST AFRICA
URUGUAY
194,'
Fourth Committee
40th Meeting, 9 October I947, Mr. Arrosa, p. 60. IJ.
·'.PJenary · ·
rn5th Meeting, I November 1947, Mr. Arrosa, p. _6I4.
I948, · ' ,
Fourth Committee
78th Meeting, II November 1948, Mr. Gerona,p. 3rn.
82nd Meeting, I7 November 1948, Mr. Jiménez,p. 359.
Plenary
164th Meeting, 26 NoveI11berI948, Mr. Gerona,p. 579.
I9Fourth Committee . .,
IJist Meeting, 21 November I949, Mr..MacEachen, p. 222.
I36th Meeting, 25 November 1949, Mr. MacEachen, p. 254.
139th Meéting,28 November I949, Mr. MacEachen, p. 272.
r4oth M~ting, 29,Novemb,err949, Mr. MacEachen, p:280.
VENEZUELA
• ·947' "
Fourth Committee
·.33rd·Meeting,27 September I947, Mr. Lovera, p. r6.
.,r948 .
Fourth Committee
. ·. 80th Meeting, r3 November r948, Mr. Lovera, p. 337.
·'. .·.82nd Meeting, r7 .November r948, Mr. Lovera, p.357.
1949
Fourth Committee ,:;.
r3oth Meeting, 2r November r949, Mr. Stolk, pp. 2r8, 2r9.
r39th Meeting, 28 November I949, Mr. Marturet, p. 272.
YUGOSLAVIA '
r947
Fourth Committee
3rst Meeting, 25 September r947, Mr. Rilmikar, p. 7.
. ·'.45th Meeting, r5 October r947, Mr. Ribnikar, p. 94.
r948 ·
Fourth Committee
82nd Meeting, I7 November r948, Mr. Vil/an, p. 364.
r949
Fourth Committee
r31st Meeting, 21 November 1949, Mr. Vil/an, p. 22r.
r34th Meeting, 23 November r949, Mr. Vil/an, p. 235.
140th Meeting, 29 November r949, Mr. Trebinjac, p. 275. COUNTER-MEMORIAL OF SOUTH AFRICA 275
SECOND PART
E~tract~/rom Statements by Representatives of C.ertainStates·
1947
AUSTRALIA.
Fourth ·committee
Mr. _Evatt: "Although the General Assembly was entitled to
recommend that a ·trusteeship agreement be submitted, the
corintries represented at San Francisco had never ·întended
it to be a legal obligation to place any territory under trustee
ship. The obligation to submit information under Chapter'XI
,. of Chapter XII." und(G.A., 0.R., Second Sess., Fourth Comm.,sions
39th Meeting, 8 Oct. 1947,p. 58.)
Plenary
Mr. · Evatt: "Therefore, there is no gap in the Charter of the
United Nations. If the Union of South Africa does not bring
its Territory under the Trusteeship System, it is still, in my
view, a Non-Self-Goveming Territory. The Union Govem
meiltwiH have to give, vo1untarily, reports for the infonnation
of the Secretary-General. The Secretary-General can.do ashe
chooses with this information."(G.A., O.R., Second Sess.,Vol.I,
104th Plenary Meeting, r Nov. 1947, p. 588.)
Trusteeship Council
Mr. ·Forsyth: "The reports on Trust Territories are submitted
·not merely to inform the Trusteeship Council but to enable
the Trusteeship Council to exercise its main fonction, the
supervision of administration. In the case of South West
Africa, which is not a Trust Territory, the Trusteeship Council
· does not have the fonction of supervising administration.
The administration of South West Africa has been reserved
by the Government of the Union of South Africa as its own
concern, and that Government, not having placed the territory
under trusteeship, does not recognize.the power of the Trustee
ship Councilto supervise its administration. There is, therefore,
a fondamental difference between the purpose for which the
report on South West Africa is submitted and the P-urposefor
which reports on Trust Territories are submitted." (T.C., O.R.,
Second Sess., First Part15th Meeting, 12Dec. 1947,p. 477.)
CHINA
Fourth Committee
Mr. Liu Chieh: "The only choice lay between trusteeship and the
grant of independence. Article 80, paragraph 2,of the Charter
further proved the obligatory character of the [trusteeship)
Africa under trusteeship, it would not be deprived of the admi
nistration of the territory; and the only change would be the
placing of that administration under international SU{'er
vision." (C.A., O.R., Second Sess., Fourth Comm., 31st Meetmg,
25 Sep. 1947, p. 6.) SOUTH WEST AFRICA
Plenary
Mr. Chieh: "We are told that the Union of South Africa would
administer the Territory of South West Africa in the spirit of
the Mandate of the League of Nations. I do not doubt the
sincerity of this statement on the part of the Union of South
Africa, but we all know that the mandate system has ceased to
exist and that the Trusteeship System has been established.
Would it not be more desirable, to administer the Territory
in question under a living system than under the shadow of
aghost system?" (G.A., O.R., Second Sess., Vol. I, rn5th Plenary
Meeting, r Nov. 1947, p.6or.)
COLOMBIA
Fourth Committee
Mr. Yepes: "If the Mandatewereto becontinued, on whose behalf
would it be exercised? The Lea$.Ue of Nations was defunct.
In international as wellas in civil law, the Mandatory Power
could not continue to hold a mandate after the institution to
which it was responsible had ceased to exist." (G.À., O.R.,
Second Sess., Fourth Comm., 33rd Meeting, 27 Sep. 1947, p. 14.)
Plenary
Mr. Yepes:" ... on whose behalf would the mandate of the old
League of Nations be exercised?
It could certainly not be the League of Nations, for it has
ceased to exist, and the mandate could not be exercised on
behalf of adead institution.ln civil law, as we ail know, power
of attorney ceases upon the death of the principal. The same
idea extends, by analogy, to international law. We can conclude
that, since the League of Nations is dead, mandates exercised
under its authority have also lapsed, and the territories con
cerned must fall under the Trusteeship System established
by Article 77 of the Charter." (G.A., O.R., Second Sess., Vol. I,
ro5th Plenary Meeting, r Nov. 1947, p. 602.)
CUBA
Fourth Committee
(i) Mr. Meyer: "... the information submitted by the Govern
ment of the Union of South Africa with regard to South West
Africa could not be examined since South West Africa was
neither a Trüst Territory nor a Non-Self-Governing Territory."
(G.A:, O.R., Second Sess., Fourth Comm., 32nd Meeting, 26 Sep.
1947, p. IO.)
(ii) Mr. Meyer: "... disputed the contention of the Government
of the Union of South Africa that it had no alternative to
retaining the status quo, nor did he recognize that South West
Africa constituted a category sui generis. The Charter was
very clear in recognizing only three categories: Trust Territories,
the Non-Self-Governing Territories and independent States."
(G.A., O.R., Second Sess., Fourth Comm., 39th ·Meeting, 8 Oct.
1947, p. 55.) ·
FRANCE
Trusteeship Council· ·
Mr. Carreau: "That text [of the General Assembly Resolution] COUNTER-MEMORIAL OF .SOUTH AFRICA
277
was very carefully drafted after lengthy discussion because the
Assembly, in referring the report of the Government of the
Union of South Africa to the Trusteeship Council, wanted above
all totake the first step in the direction of international super
vision over the former mari.dated Territory of South West
Africa, pending reconsideration of the AssembJy resolution by
the Government of the Union of South Africa and a decision of
that Government in that connection ...
Indeed, in the absence of a trusteeship agreement, the
Council-and the same would have been true of the Fourth
Committee-could examine the report of the South African
Government only for information." (T.C., O.R., Second Sess.,
First Part, 15th Meeting,12 Dec. 1947, p. 480.) ·
INDIA
Fourth Committee
India submitted a draft resolution which in paragraph S therof
contained the following statement:
"Whereas the territory of South West Africa,thoughnotself
governing, is at present outside the control and supervision
of the United Nations."
(C.A., O.R., Second Sess., Fourth Comm., Annex 3h, p. 197.)
IRAQ
Fourth Committee
Mr. Khalidy: "... pointed out that the trusteeship system of the
United Nations had replaced the mandate system ....
The mandate system had ceased to funct10n. The Union of
South Africa had not accepted the trusteeship system, to
which there was no alternative. The trusteeship system offered
the only legal right to administer a territory formerly under
mandate." (G.A., O.R., Second Sess., Fourth Comm., 32nd
Meeting, 26 Sep. 1947, p. 10.)
Plenary
Mr. ]amali: "Now the League of Nations is dead, but the prin
ciples underlying the mandate are not dead. Chapter XII of
the Charter certainly replaces Article22 of the Covenant ....
There is no obligation [to place a Mandated territory under
the trusteeship system], but these members of the General
Assembly who worked on the trusteeship Chapter of the Charter
at San Francisco will remember that, although there was no
obligation on the mandatory power to put a territory under the
Trusteeship System, it was implied that the mandatory Power
would either put such a territory under trusteeship in due
course, or declare its independence ... .
There is no further alternative ... .
I believe that the retention of the Territory of South West
Africa, neither under the Trusteeship System nor as an inde
pendent territory, is a retrograde step. It is contrary to the
spirit of the Charter, and it is a denial of the right of the United
Nations to supervise the welfare and freedom of ail peoples all
over the world." (G.A., 0.R., Second Sess., Vol. I, 105th Plenary
Meeting, 1 Nov. 1947, pp. 621-622.) SOUTH WEST AFRICA
Trusteeship Council
Mr. Khalidy: "I had occasion to say at the time [in the Fourth
Committee] that South West Africa is neither a colony, a
mandated territory nor a Trust Territory. ltis not a mandated
territory, I said, and I still say so because the League of Nations
from which the mandate derived legally, is dead." (T.C., O.R.,
Second Sess., FirstPart, 15th Meeting, 12 Dec. 1947, p. 482.)
NETHERLANDS .
Fourth Committee
Mr. Kernkamp: "He felt that the refusai of South Africa to place
the territory under the international trusteeship system was
regrettable because since independence had not been granted
to the territory its withdrawal from any system of international
supervision was a retrogressive step." (G.A., 0.R .• Second
Sess.,Fourth Comm., 38th Meeting, 7 Oct. 1947, p. 52.)
Plenary ·
Mr. Kernkamp: "The mandate system now does not operate.
As there is no longer a supervising authority, there is rio longer
a mandate system. The voluntary transmission of information,
merely for the sake of information, by the UnionofSouthAfrica
to the Trusteeship Counci1does not give the Counci1the same
jurisdiction as the Permanent Commissionon Mandates had....
. . . we consider that the present situation constitutes a step
backward, in so far as a territory once under international
supervision is now under no superintendence ... " (G.A., O.R.,
SecondSess., Vol.I, 105th Plenary Meeting, l Nov. 1947,p. 605.)
NEW ZEALAND
Fourth Committee
Sir Carl Berendsen: ''Speaking as the representative of New
Zealand, he favoured the international supervision of all back
ward peoples, but maintained that there was no legal obligation
on any Mandatory Power to place a mandate under the trustee
ship system. The Committee could not therefore accuse the
Union of South Africa of failing in its duty.(G.A.,O.R., Second
Sess.• FourthComm., 33rd Meeting, 27 Sep. 1947,p. 17.)
Trusteeship Council
Sir Carl Berendsen: "This [South West Africa] is not a Trust
Territory. We derive no powers from the Charter. Our only
powers are derived from the resolution of the General Assembly,
and our powers are limited by that resolution.... But we are
not entitled-and I regret it very much indeed-we are clearly
not entitled to send a visiting mission. We are clearly not
entitled to accept petitions. We are clearly not entitled to hear
oral representation." (T.C., O.R., Second Sess., First Pari15th
Meeting, 12 Dec. 1947, pp. 478-479.)
PAKISTAN
Plenary
Mr. Pirzada: "A simple comparison of the relevant Articles in
Chapters XI and XII of the Charter will show clearly the
advantage of one system over the other. The first advantage COUNTER-MEMORIAL OF SOUTH AFRICA
279
that I would stress is that, under the present mandate system,
only one country is responsible for the proper administration
and the development of political and other institutions
within the Territory. It is the conscience of one State which
will be guiding it ail the time to follow the provisions laid down
in Chapter XI of the Charter. On the other hand, if it cornes
under the International Trusteeship System, it will be the
conscience of all the United Nations, as represented in the
Trusteeship Council, which will be guiding the administration
of the Territory and which, therefore, has a greater chance of
being directed in the interests of the people of that Territory.
The second advantage which the Trusteeship System has
over the ordinary administration under Chapter Xl is that
international supervision is provided under the International
Trusteeship System, according to Article 75 of the Charter.
As against that, under Chapter XI of the Charter, which relates
to the administration of Non-Self-Governing Territories-to
which class this Territory of South West Africa will have to
belong if it is not brought under the Trusteeship System-there
is no provision for international supervision, and the only
supervision that exists takes the form of supplying information
on non-political matters for the consideration of the United
Nations: in other words, economic, social, and other matters ....
There are two systems under the Charter of the United
Nations, namely the administration of Non-Self-Goveming
Territories, and the administration of territories under the
Trusteeship System. This would be a third system-adminis
tering in the spirit of the mandate-which the Charter does
not recognize and whîch the Charter seems to abolish al
together. ...
Therefore, by refusing to place this Territory under the
Trusteeship System, the Union of South Africa is going back
on both principles recognized by the Covenant of the League
of Nations: first, trusteeship of an international body; second,
supervisory control of an international body." (C.A., 0.R.,
Second Sess., Vol. 1, ro5th Plenary Meeting, r Nov. 1947,
pp. 618-619.)
PHILIPPINE REPUBLIC
Fourth Committee
(i) Ceneral Romulo: "The Union of South Africa had contended
that it had obtained its powers from the League of Nations,
but it had forgotten the new obligations it had assumed under
the Charter. Chapter XI of the Charter contained a declaration
which applied to all the Non-Self-Governing Territories,
whether mandated or not. That declaration embodied obli
gations which far exceeded those of the mandate system. The
resolution of the Union Parliament impJied that these obli
gations would be fulfilled by the submission of information."
(C.A., 0.R., Second Sess., Fourth Comm., 31st Meeting, 25 Sep.
1947, p. 7.)
(ii) Ceneral Romulo: "While supporting the draft resolution
submitted by the representative of lndia, [he] could not280 SOUTH WEST AFRICA
subscribe to the fifth paragraph of that proposai, to the effect
that South West Africa was 'at present outs1de the control and
supervision of the United Nations'. Chapter XI of the Charter
applied toail the Non-Self-Goveming Territories....
According to Article I03 of the Charter, obligations under
the present Charter superseded other international obligations,
and that meant in effect that the Union of South Africa was
bound to fulfil its obligations under Chapter XI as long as
South West Africa remained outside the trusteeship system."
(G.A., 0.R., Second Sess., Fourlh Comm., 39th Meeting, 8 Oct.
I947, p. 57,)
UNION OF SOUTH AFRICA
Fourth Committee
(i) Mr. Lawrence: "In respect of its administration of South West
Africa, that Governmcnt (of the Union of South Africa] would
maintain the status quo in the spirit of the Mandate. It would
not submit a trusteeship agreement, but would transmit
information annually. Information relating to i:946 was now
in the bands of the Secretary-General." (G.A., O.R., Second
Sess., FourthComm., 3Ist Meeting, 25 Sep. I947, p. 4.)
(ii) Mr. Lawrence: "In reply to the request made by the Danish
representative at the thirty-first meeting regarding clarification
of document A/334, Mr. Lawrence stated that the Mandate
Government of the Union of South Africa hadigationfullhpowers of
administration over South West Africa, and it proposed to
continue to exercise them, just as it would continue to fulfil its
obligations under the Mandate to promote the moral and
material well-being of the population and to advance social
progress. The Union of South Africa did not daim that South
West Africa was a colony, but it was willing to submit annual
reports like those required for the Non-Self-Goveming Terri
tories under Article 73 c [sic].
The right to petition had ceased to exist with the disappear
ance of the League of Nations, the authority to which petitions
could be addressed. In the absence of a trusteeship agreement,
the United Nations had no jurisdiction over South West Africa
and therefore no right to receive petitions." (G.A,, O.R., Second
Sess., FoitrthComm., 33rd Meeting, 27Sep. I947, pp. I5-I6.)
Plenary
Mr. Lawrence: "In addition, the Govemment of the Union of
South Africa has expressed its readiness to submit annual
reports for the information of the United Nations. That under
taking stands.
basis that the United Nations has no supervisory jurisdictionhe
in respect of this Territory, they willserve to keep the United
Nations informed, in much the same way as they willbe kept
informed in relation to Non-Self-Governing Territories under
Article 73 e of the Charter." (G.A., O.R., Second Sess., Vol. I,
105th Plenary Meeting, I Nov. I947, pp. 632-633.) COUNTER-MEMORIAL OF SOUTH AFRICA
UNION OF SOVIET SOCIALIST REPUBLICS
Plenary
Mr. Stein: "It is also known that the South African Govern
ment refused to comply with this recommendation (to submit
a trusteeship agreement] and 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'. I say that this ,is an absurd
juridicalstatus, since now, in 1947, after the League of Nations
and the mandate system have ceased to exist, reference is made
to this system in order to conceal the actual annexation of
South West Africa." (G.A., O.R., Second Sess., Vol. I, 105th
Plenary l\leeting,1Nov. 1947, p. 612.)
THE UNITED STATES OF AMERICA
Fourth Committee
Mr. Dulles: "The Union of South Africa had no legal title to the
territory at present, because its only title was a Mandatory
under the League of Nations." (C.A., O.R., Second Sess., Fourth
Comm., 38th Meeting, 7 Oct. 1947, p. 50.)
Trusteeship Council
Mr. Gerig: "It was said here earlier this afternoon, and I did not
hear any member object, that while we all hope-my delegation
as much as any delegation feels that way-that there will be a
trusteeship agreement for this territory, we do not, in the
absence of a trusteeship agreement, have supervisory functions
over this territory. Therefore, I doot think we ought to imply
that we do have supervisory fonctions to ensure that the Union
Government discharges its duties under the present mandate,
admitting that it exist." (T.C., 0.R.,Second Sess., First Part,
15th Meeting, 12 Dec. 1947, p. 505.)
URUGUAY
Fourth Committce
(i) Mr. Arrosa: "The duty to submit trusteeship agreements was
not only a moral one. Article 80, paragraph 2, of the Charter
permitted no delay on the part of the Mandatory Powers. At
a time when only two classes of dependent territories remained
in existence,the Non-Self-Governing Territories and the Trust
Territories, South West Africa's position had clearly become
anomalous." (G.A., O.R., Second Sess., Fourth Comm., 33rd
Meeting, 27 Sep. 1947, p. 14-)
(ii) Mr. Arrosa: "His delegation was of the opinion that since
the mandate system was defunct and South West Africa
was neither independent nor a colony, the Union of South
Africa was underan obligation to place it under the international
trusteeship system." (G.A., 0.R., Second Sess., Fourth Comm.,
40th Meeting, 9 Oct. 1947, p. 60.)
Plenary
Mr. Arrosa: "We maintain once more that it is impossible to
conceive of a mandate continuing, even only in spirit, now
that the body which granted it, the League of Nations, has SOUTH WEST AFRICA
ceased to exist. There is here a clear anomaly, for.the Territory
in question is neither independent nor a colony.
The international system now in force takes account of two
classes of dependent terri tories only: those called by Chapter
XI of the Charter 'non-self-goveming', and .those placed under
tbe Trusteeship System in accordance with Chapters XII and
XIII. There is no third category or class of dependent terri
tories." (G.A.O.R., SecondSess., Vol. I,ro5th Plenary Meeting,
1 Nov. 1947, p. 615.)
1948
BELGIUM
Fourth Committee
Mr. Ryckmans: "Under the Mandate System, South West Africa
had been administered under a C Mandate, and it had always
been understood that the Territory would eventually be
incorporated in the Union of South Africa.
On the other hand, [he] felt bound to draw the attention
of the Soutb African representative and the Committee to the
terms of Article Bo,which provided that nothing in Chapter XII
of the Charter should be 'construed in or of itself to alter in any
manner the rights whatsoever of any States or any peoples .. .'.
That included the people of South West Africa, who, having
had the benefit of international supervision under the Mandate
System, could not be deprived of that right." (G.A., 0.R.,
Third Sess., Part 1, Fourth Comm., 79tb Meeting, 12 Nov. 1948,
pp. 325-326.)
CHINA
Fourth Committee
Mr. Liu-Chieh: "It was !rue that, as no trusteeship agreement
had been concluded for South West Africa, the United Nations
could not intervene or exercise its power of supervision in
regard to that Territory. But paragraph 2 of Article 80 imposed
an obligation to conclude such an agreement without delay."
(G.A., 0.R., Third Sess., Part I, Fourth Comm., 76th Meeting,
9 Nov. 1948, p. 296.)
COSTA RICA
Fourth Committee
Mr. Canas: "The United Nations should not act as though its
hands were lied by the Mandate. Il had not been a party to
the mandate agreement, and could not therefore be obliged
to act in accordance with its provisions. lndeed, the Union
of South Africa itself did not consider that the Mandate was
stillin existence, since it had stated that it would administer
the Territory of South West Africain the 'spirit' of the Mandate.
As a legal contract between the Union of South Africa and
the League of Nations, the Mandate had disappeared with the
League, and there had been no provision whereby the United
Nations became a party to the Mandate." (G.A., 0.R., Third
Sess., Part 1, Fourth Comm., 82nd Meeting, 17 Nov. 1948,
p. 365.) COUNTER-MEMORIAL OF SOUTH AFRICA
CUBA
Fourth Committee
Mr. PérezCisneros: "In his opinion, however, the revised joint
resolution did not make it clear that the United Nations had
assumed the League of Nations' responsibility in relation to
South West Africa, the onl)I' Mandated Territory not yet
placed under the Trusteeship System.... It should be clearly
stated also that the reports were sent to the United Nations so
that the Organization could exercise its functions of contrai
and supervision, in the same manner as would have been done
by the League of Nations ... " (C.A.,O.R., Third Sess., Part I,
Fourth Comm., 82nd Meeting, r7 Nov. r948, p.356.)
FRANCE
Fourth Committee
Mr. Carreau: "The French delegation had frequently had occasion
to recall 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. When the United Nations was set up, there remained
· nothing of the Covenant of the League of Nations exŒpt its
moral influence. The Mandate System was reconstituted as the
Trusteeship System with certain characteristic differences....
The South African Government had on several occasions
expressed its desire to administer the Territory of South West
Africa in the spirit of the Covenant. It accepted the moral
obligation of ensuring the well-being and the development
of the population, leading it in due course to autonomy and
ultimately to independence." (G.A., O.R., Third Sess., Part /,
Fourth Comm., 79th Meeting, 12 Nov. 1948, pp. 322, 324.)
INDIA .
Fourth Committee
Mrs. Pandit: "The provisions of Article 80 of the Charter, safe
guarding the existingrightsof the people of South West Africa
until a Trusteeship Agreement had been concluded, had to be
recognized. One of those rights, undcr the mandate system, had
been the examination, by the Permanent Mandates Commission,
of annual reports submittcd by the Union Government on the
administration of the Territory of South West Africa. A
representative of the Union Government had been personally
present for interrogation. That right could not be extinguished
merely because the Permanent Mandates Commission had
ceased to ex1st." (C.A., O.R., Third Sess., Part I, FourthComm.,
8Ist Meeting, 16 Nov. 1948, p. 352.)1
1 "It is respectfully submittthat the only respect in which the position has
changed [as a result of the dissolution of the Leaguel is that Article 6 of the '.'.lanoate
and the first portion of Article 7 of the Mandate have become incapable of Leing
complied with. In other respects, the rights and obligations of the mandarory are
exactly the same as they wcrc before. The result is that the mandatory is not obliged
the Mandate at all because the procedure by which it could bave modified the te,ms284 SOUTH 'WEST AFRICA
UNION OF SOVIET SOCIALIST REPUBLICS
Trusteeshlp Council
(i) Mr. Tsarapkin: "... hls delegation held that the Trusteeship
· Council could not consider the report submitted by the Govern
ment of the Union of South Africa, because the status of the
Territory was at present undetermined. While it was true that
the Territory in the spirit of the existing mandate, it shoulder
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." (T.C., O.R.,
Third Sess., 31st Meeting, 23 July r948, p. 406.)
(ii) Mr. Tsarapkin: "He was of the opinion that a report on the
Territory of South West Africa could be considered only after
this Territory is included in the Trusteeship System and a
Trusteeship Agreement isapproved by the General Assembly ...
He considered that there exist only two alternatives to deal
with the former Mandated Territory of South West Africa
either this Territory should become an independent State or
should be included in the Trusteeship System ... " (T.C.,
O.R., Third Sess., 41st Meeting, 4 Aug. 1948, p. 537.)
UNITED KINGDOM .
Trusteeship Council
Sir Alan Burns: "The Council had been asked to consider the
report on the administration of South West Africa simply
because that Territory was formerly under mandate, and the
General Assembly hoped soon to see it placed under the Trustee
ship System. It was important, therefore, to bear in mind that
of South West Africa and its report thereon to the Generalation
Assembly were siii generis; the Council had no right to assume
that the General Assembly would take any particular course
of action on the ha.sis of the Council's report." (T.C., O.R.,
Third Sess., 41st Meeting, 4 Aug. 1948,p. 531.)
URUGUAY
Fourth Committee
Mr. Gerona: ", .. pointed out that the obligation to send an
annual report on the administration of mandated territories
had been imposed on every Mandatory Power by the provision
of Article 22, paragraph 7, of the Covenant of the League of
Nations.... .
Article 80 of the United Nations Charter provided, in con
nection with the Trusteeship Agreements, that ...
That provision of the Charter clearly safeguarded the rights
of indigenous populations and imposed on the Administering
Authorities the duty of reporting progress and of communi-
of the Manda:te has ceased be applicable." ("Written statement of the Govern
ment of India", in International Status of South West Africa, P/eadings, Oral Argu
ments, Documents, p. 148.) COUNTER-MEMORCAL OF SOUTH AFRICA 285
cating to the international community how they were fulfi.lling
their obligations .
.It could be maintained that since the organ which was to
receive that information, namely, the Council of the League of
Nations, was no longer in existence, the Mandatory Power was
automatically relieved of its obligation to report progress. The
Council had studied the reports in its capacity as an organ of the
international community; it acted as a co-ordinating centre for
the other States concerned, i.e., members of the civilized and
organized international collectivity. The dissolution of the
League of Nations meant the disappearance of only the common
co-ordinating centre. But that co-ordinating centre was once
more in existence: it was the United Nations, and it was through
the organization that the Union of South Africa should fulfil
its obligations twards the international community and give an
account of.its administration." (G.A., 0.R., Third Sess., Part I,
Fourth Comm., 78th Meeting, u Nov. 1948, pp. 3n-312.)
::1949
:BRAZIL
Fourth Committee
Mr. d'Aquino: "South West Africa, however, was nota sovereign
State, but a territory placed under the Mandate System of the
League of Nations and, consequently,•was under the supervision
of the community of Nations, namely, the General Assembly."
(G.tA., O.R:, Fourth Sess., Fourth Comm., 132nd Meeting,
. . 22 Nov. 1949, pp. 223-224.)
:CANADA
·Fourth Cominittee
Mr. Blais: "The Canadian deiegàtion· 'was submitting that
ame.ndment ['Expresses regret that the Government of the
Union qf South. ;\frica has not continued ... to submit reports
. on its administration of the Territory of South West Africa for
· . the information ofthe United Nations'] because the use of the
word 'repudiated' in the Indian text gave the impression that
the Union Govei:-nment was under a legal obligation to submit
information, which was not the casé." (G.A., O.R., Fourth
Sess., FourthComm., 139th Meeting, 28 Nov. 1949, p. 268.)
•CUBA . .
· Four'th Committee ,
Mr. PérezCi;neros: "The pre~tige of th:e·Un~ted Na.'tions was
at stake justas that of the League of Nations m~ght have been
in similar circumstances: the rights and duties of the United
Nations were the same as those of the League of Nations for
both organizations represented the international community.
The substance of the question was clear: although there was
no Trustee~hip Agreement in respect of So~th West Afric?',
there remamed the old Mandate which prov1ded for a certam
number of obligations. Those had to be observed and the
Power concerned could not denounce them by unilateral
action, Under the terrns of the Mandate, the Union of South286 SOUTH WEST AFRICA
Africa had been required to transmit information to the League
of Nations, because it was the_international community's duty
to be infonned how the territories it entrusted to the adminis
tration of some countries were being governed. That information
was to have been examined by the intern·ational community;
the populations concerned had had the right to send petitions;
furthermore, the right of petition had been recognized as 'an
essential human right' by the General Assembly at its third
session ... as a result of a proposal màde by the Cuban and
·French delegations. . . . · · ·
No Trusteeship 'Agreement had in fact been concluded in
respect of South West Africa. Attention -should be drawn,
however, to Article 80 of the Charter which explicitly stated .••
It was therefore clear that the situation which had prevailed
under the Mandate System should not be changed in the case
under discussion. The rights of the people concerned were
clearly compromised when the international community
ceased to receive information on how they were being adnùnis
tered, and when the peo_elethemselves could no longer exercise
their right ofetition." (G.A.,O.R., FourthSess., FourthComm.,
130th Meeting, 21 Nov. 1949, p. 216.)
GREEÇE
Plenary .
Mr. Lely: "He recalled that at the third session of the General
Assernbly the representative of the Union of South Africa had
stated that, when the Governrnent of the Union of South
Africa had given an assurance that it would send information
on the Terri tory, it had rriade a specific reservation that the
sending of such information would imply no commitment for the
future and would not beindicative ofaccountabilityto the United
Nations. · .- ·
[He] felt that that statement spoke for itself. The sending
of information was a voluntary act on the[art of the Union
Government. If that was so, and he believe that it was, then
the Union _Govemment had_ not repudiated any previous
assurance." (G.A., O.R., Fourth Sess., 269th Plenary Meeting,
6 Dec. 1949, p. 530.)
UNITED KINGDOM
Fourth Committee
Sir Terence Shone: "It could not be said that the Government
of the Union of South Africa had repudiated its previous
assurance since it had complete liberty to decide whether or
not to transmit information." (G.A., 0.R., Fourth Sess., Fourth
Comm., 135th Meeting, 24 Nov. 1949, p. 247.) COUNTER-MEMORIAL OF SOUTE AFRICA
Annex B
ARTICLE 22 OF THE COVENANT OF THE LEAGUE
OF NATIONS
[See Annex A totheMemorials, 1,p. 200.J
Annex C
MANDATE FOR GERMAN SOUTH-WEST AFRICA
[See Annex B to the Memorials,I,p. 2or.J BOOKïIIIa
CHAPTER 1
GEOGRAPHICAL FEATURESOF SOUTHWEST AFRICA
A. Introductory
r. A brief survey of the main geographical features of South West
Africa is, in Respondent's submission, essential for a proper consideration
of the issues before the Court.
The natural environment of a country not only regulates the size,
character and distribution of its pt?pulation, but also constitutes a major
factor in deterrnining the potentlal pattern and rate of its development.
In the context of the present case, however, it is also true that geogra
phical factors and natural resources are relevant and assume importance
only to the extent that they can be used by man for his benefit, or that
they constitute obstacles to be overcome in develo_pingthe Territory.
This survey will indicate that the natural environment ofSouth West
Africa is to a large extent unfavourable for man's p11tp9sesand that
it displays great diversity, resulting in special problems of administration
and development. The adverse physical environment places a premium
of the Territory.n in realizing the limited and diverse natural potential
Consequently the two factors of natural environment and human
resources, as well as their inter-relationship, are basic to the interpreta
tion of conditions and achievements in South West Africa, and cardinal
to the evaluation of any policy of administration and development in
the Territory.
B. Location
l. GENERAL
2.The Territory of South West Africa lies along the Atlantic sea
board in the south-western portion of Africa, as illustrated by Map I,
on page 290.
The Territory stretches from the southern border of Angola to part
of the northern and north-western border of the Cape Province of the
Republic of South Africa; and from the Atlantic Ocean in the west to
the western border of BechuanaJand in the east. The Tropic of Capricorn
divides the Territory into two nearly equal parts. The northern half of
South West Africa therefore falls in what is generallv known as Tropical
~~ .
II. BORDERS
3. As in the case of many other territories in Africa, the land bound
aries of South West Africa were originally drawn by statesmen who
not only had little knowledge of local topographical and ethnie condi- SOUTH WEST AFRICA
tions, but were mainly guided by considerations other than local interests
and problems of administration. Thus, for instance, the northern
boundary intersects the area inhabited by Ovambo tribes so that three
tribes fall into Angola, north of.the boundary, one tribe is eut in two,
while the remainder fall into South West Africa. A similar position
obtains in the case of the tribes living on the Okavango River. In such
circumstances effective boundary control, e.g., to prevent the spread
of human or animal diseases, becomes a virtual impossibility ..
;r,t,• ••• ,,. ,. o• ,. ,,. 1,1• ~·
LOCATION "OF SOUTH WEST AFRICA
LUITA'
"'-r''----+---'-.,-----....l.,.;--.,.,.---'--.._ __ +--+-'-'""""'--""-1,!"""-'-----!'·
~ . -,\--..........
:_t_.... .......
...
Pm;,ltJI C.H~ _ !' ,
. ''!I u
/
® .TO" <I'
"'
11'6'. POIITUG.UINl-"
IL -U[apa LtOll[
.. T +TOC..O ..
IIM1110~UNI
,- FAtHCH!IOWALILÀND ,,.
R1 • AW...IVPUND~
• • iVl'4il l,.ANC
- IASUl'OLil.NO
.• • WALYl!ll"-'f
FltPùllLOf' IOl,IJH Al""'IC.4
;iOO O ~00 800 U:00
Mop 1 ,;,1,;i.m•tr-41,
.. ,,.
The .Eastern Caprivi Zipfel presents the same problems arising from
the fact that the political boundaries bear no relation to the borders of
areas inhabited by particular ethnie groups. ln addition its inclusion in
the Territory adds to the diversity of the population by bringing portions
of tribes living in Rhodesia and Bechuanaland into a political unit with
the other inhabitants of South West Africa, with whom they have no
ethnie or other ties at ail, and from whom they are, for practical purposes,
almost completely isolated geographically. This factor creates special
problems of administration, which will be dealt with later. COUNTER-MEMORIAL OF SOUTH AFRICA
ill
·~ •o"
.,,___,.__ _,_ _
r·----.i. 2~
! ·!
!
... l 24•
'[. ! A COMPARATIVE STUDY
\ :
IN
.... \ SIZES ...
SOUTH WEST
AFRICA
,..
...
Map 2
IC...OfflCIU'H ...
.. ... ... ...
C. Area ·
4. South West·Africa has an area of 824,269 sq. km. (318,261sq. miles)
miles) which, although part of the Republic of South Africa, is for:
convenience administered as part of South West Africa 1.Map 2,above,
shows the relative extent of the Territory.
The Territory is nearly four times the size of the United Kingdom
and nearly seven and a half times as large as Liberia. On the other
hand, it has Iess than haU the population of Liberia • While the area
of South West Africa is vïrtually the same as that of Nigeria, the latter
1 Vide BritishLettersPatent dated q Dec. 1878, inBritish and Foreign State
Papers I878-I879,Vol. LXX, pp. 495-496, for the British anne,cation of Walvis Bay.
Hope Go11ernmet1t azettNo. 6519 (8 Aug. 1884), p. 1, it was annexed to the Colony
of the Cape of Good Hope. Itsadministrationas part of South \Vest Africa was
provided forby sec. 1 of Act No. 24 of 1922 andFroc.No. 145 of 1922 (S.A.),
II Sep. 1922, inThe Laws of South West Africa I9I5-r9zzp. 20 andpp. 56-57.
graphic Yearbook r960, 99.ria. as at 1956 wa.s given as 1,250,000 inDemo SOUTH WEST AFRICA
. .,·-·-·-·-·-·-·-·-·-·-·- _.-~ ..-.·
---·-· ..--... ----~ --·:.---=_~.--·-·'
.--~ p
MAJOR TOPOGcRAPHIC
REGIONS
Q Thel Ne1mib
El:§ Thel ContraiPlatctau
§ Th<i K<1l<1he1ri
100 50 0 100 200
Map 3 F3 F3 Fd
Kllamctres.
carries a population 60 times larger than that of South West Africa 1•
The Territory constitutes nearly 3 percent. of the total area of Africa,
while its population of approximately half a million amounts to only
about 0.2percent. of the total population of Africa. With the exception
of Bechuanaland, which adjoins the Territory, it has thelowestpopulation
density in Africa south of the Sahara 2, and one of the lowest density
figures in the world 3•
1 The population of Nigeria as at 1959 was given as 33,663,000 in U.N. Demo
graphic Yearbook I960, p. 100.
2 Both have population densities of Jess tban one person per square kilometre,
but the density in Bechuanaland is slightly lower than that of South \Vest Africa-
11idefigures in U.N.Statistical Yearbook I96z, pp. 24-25.
J The only countries other than South \Vest Africa and Bechuanaland which,
according to the figures published in U.N. Statistical Yearbook I96z, pp. 21-39,
have population densities of Jess than one person per square kilometre, are Libya,
Mauritania, French Southern and Antarctic Territories,a small part of Spanish
North Africa, Spanish Sahara, Tristan da Cunha, Greenland, French Guiana, the
Falkland Islands, Mongolia, and the Svalbard and Jan Mayen Island (inhabited only
during the winter season). For purposes of comparison, the following population
densities in persons per square kilometre have been extracted from the same source:
Liberia, 12; Ethiopia, 17; United States of America, 20; The Netherlands, 346. COUNTER-MEMORIAL OF SOUTH AFRICA 293
From north to south the Territory measures about I,280 km. (800
miles) and from west to east an average distance of 720 km. (350 miles),
which gives it an oblong shape with nearly 80 per cent. of the population
concentrated in the northem half of the Territory, that is, north of a
line taken just north of Walvis Bay.
D. Topography
5. Topographically, the Territory can be divided into three separate
regions, viz., the Namib, the Central Plateau and the Kalahari, as will
appear from Map 3, on page 292.
6. The western marginal area between the escarpment and the coast
is known as the Namib. It is an extremely arid and dcsolate desert
region stretching along the entire coast-line of the Territory and rising
rapidly but cvenly inland. The lateral width of the area varies from 80
to I30 km. (50 to 80 miles), and it constitutes more than I5 percent. of the
total land area of South West Africa. It consists mainly of vast plains
and seas of constantly moving sand, with occasional low, scattered
mountains. Practically the whole population of this region, being less
than 6 percent. of the entire population of South West Africa, is con
centrated in four coastal urban areas 1.
7. The Central Plateau is the area Iying to the east of the Namib.
It also stretches ail the way from south to north. It varies in altitude
between r,ooo and 2,000 m. (3,280 to 6,560 ft.) and in itself offers a
diversified landscape of rugged mountains, rocky outcrops, sand-filled
valleys and softly undulating plains. It covers slightly more than 50
percent. of the land area of the Territory.
8. Finally, the Kalahari covers the eastem, north-eastern and north
crn areas of South West Africa. The dominant feature of this region is
its thick cover of terrestrial sands and limestones. This region is often
regarded as desert, but, as the rainfall of the northern Kalahari exceeds
600 mm. (24 in.), the Kalahari hardiy falls into the same category as
the Sahara or the Namib.
In appearance it is mainly an area of level monotonous plains covered
with sand dunes, which, in contrast with those of the Namib, have been
settled by vegetation. The main problem confronting present and
future exploitation is not an inadequate total amount of rainfall or a
sparse vegetation-indeed, the Kalahari offers considerable potential
for large-stock rearing-but since the rainfaH seeps away rapidly through
the thick, loose sand and the underlying porous limestone, there is a
near total lack of surface water, while ground water is sometimes so
deep as to be economically unexploitable.
However, by way of contrast, the eastern section of the Caprivi Strip,
which stretches out to the Zambesi and Linyanti (known in its higher
reaches as the Kwando and the Chobe) Rivers, exhibits totally different
conditions. Because of the extremely: low gradients there, nearly one
quarter of the region is annually flooded during the period of peak t!ow.
Floods also occur annually in the eastern part of Ovamboland, which is
generally better watered than the rest of this area.
1 Swakopmund, Walvis Bay, Luderitz and Oranjemund.294 SOUTHWEST AFRICA
E. Climate
l. INTRODUCTORY
9. The climate of any particular area is composed of various elements
such as temperature, rainfall, prevailing winds, etc. Of these, rainfall is
the most important climatic element in affecting life and economic
development in the Territory, since it provides the key to agricultural
potential. Respondent consequently proposes dealing separately with
the rainfall of the Territory, before summarizing its various climatic
regions with reference also to other climatic elements.
AVERAGE ANNUAL RAINFALL
(in Mm.)
[J L~ss than 50mmpa.
~ 50 -100 mm. p.a.
~ 100 -200mm.pa.
§ 200 - 300mmp.a.
m 300 - 400 mm. p.a.
t,.,lap 4
ffll'400 - 5mm. p.a.
IOO 50 0 100 200 BI SOO- 600.mmP.<l.
F3F3Kllometros.
• Mora tlla600 mm. p.a.
II. RAINFALL
ro. To assess the influence of rainfall properly, three aspects must
be taken into account, namely the average annual amount of rainfall,
its seasonaldistribution,and itseffectiveness. COUNTER~MEMORIAL OF SOUTH AFRICA
(a) Average Annual Rainfall
IL The average annual rainfall appears from Map 4, on page 294.
It will be seen that practically the whole of the coastal region receives
an average annual rainfall of less than 50 mm. (2 in.), wlùle the north
eastem part of the country has an average annual rainfall exceeding
400 mm. (16 in.). Thus the average annual rainfall over the Territory
creates conditions varying from extreme aridity to sub-humidity. The
rainfall over the plateau area improves steadily from south-west to
north-east. It is only along the Okavango Riyer in the north and in the
Caprivi Zipfel that rainfall conditions-6oo mm. (24 in.)-may be
regarded as favourable for more intensive human occupation.
)
ts.umab
.otjiworongo
1.-··--·4
.'
·wind:tioak---i
i
•••••••••••••••••.•
••••• 1
:::::::::::::::::::::: ::. Numt:ie1rof months witon
::::::::::::::: ::: :::::: i CIVG'roga ox,ccio,50rmm.
· : : : : : : : : Kll11tmaishoop: ·.: :
·················@·· -- . !.
'
.:: ::: =::;::: :: :: - ::i D L~•• th<ln 1 montp.o.
·: :::::::;;;::;: ::::::i
::::::: :::::: ::::·.::i 8 1• 2 month• p Q.
.::;,•''"'\L{Lt i> § 2·4 mon\h• pa.
Map 5
§fi 4 • 5 month5p.a.
10F350 F-3 tF-3 2,0
Ki1ometr1:s. ~ More th<ln 5monthS p_a.
In terrns of land area, only 32.r per cent. of the Territory receives an
average annual rainfall of more than 400 mm. (16 in.), which can be
regarded as the absolute lower limit for dry-land agriculture in warm·
temperate summer rainfall regions such as South West Africa.
(b) Seasonal. Distribution of Rainfall
12. On the whole, South West Africa may be regarded as a summer
rainfall region. Over the greater part of the interior plateau, more than SEASONAL AND REGIONAL VARIATIONS IN RAINFALL INCIDENCE (1940-1960)
DistribuJion of Seasons
%
Seasons Above Ex- Average
Serious Drought Normal average ceptionally Annual
Station droughts or good good Rainfall
(60-74% of (75-125% of rainfall rainfall for
(0-59% of average average Period
average annual annual (126-140% (140% of
No. % annual rainfall) rainfall) of average average (I940-I960)
rainfall) annual annual
rainfall) rainfall)
(mm.)
Ludcritz 28 100 10 0 25
61 4 r7.4
Keetmanshoop 16 100 31 13 25 12 19 139.5
Windhoek 20 100 JO 20 45 10 15 356.4
Ondangua 20 100 15 15 45 5 20 482,1
Runtu 19 100 5 0 90 0 5 603.7 COUNTER-MEMORIAL OF SOUTH AFRICA
297
70 per cent. of the annual rainfall occurs between the months of October
and March-e.g., Windhoek 85.9 percent. and Runtu 93 per cent. 1 The
length of the rainy season varies in different parts of the Terri tory.
The northern and north-eastem areas are favoured not only by a
larger annual amount of precipitation, but also by a rainy season of
longer duration than the rest of the Territory. As is shown in Map 5,
on page 295, if ail months with an average rainfall exceeding 50 mm. are
regarded as part of the rainy season, only the area to the north-east
of a line corresponding roughly with the 400 mm. line on Map 4, on page
294, has a rainy season of 4 months or more. Over the central highlands
the rainy season varies between two and four months and it then gradu
aUy decreases towards the south-east.
(c) Elfectivenessof Rainjall
13. In common with other dry regions of the earth, the effectiveness
of the South West African rainfall is even less than that indicated by the
average annual amount. This can be attributed to two factors, viz.,
(i) high variability of rainfall, and
(ii) high evaporation.
(i) Variability
14- ln South West Africa the rainfall is extremely variable from year
to year, and differs from place to place so that the average can never
be depcnded upon. Hence the Long Term Agricultural Policy Commis
sion (1949) stated with regard to South West Africa:
"The Territory has ... no 'normal' rainfall as expressed by the
mean annual amount of precipitation. What must be accepted in
this connection is that drought and flood are normalities ... i."
The table on page 296 shows that not only is there a greater tendency
towards "normality" in the incidence of rainfall as one moves to areas
of higher rainfall-that is, the departures from the "normal" are strik
ingly larger in the cases of Luderitz and Keetmanshoop (where the
average rainfall is relativcly low) than in Ondangua and Runtu (where
the average rainfall is relatively higher)-but also that where the varia
tions are largest they tend to be strongly on the side of sub-normality
(droughts and serious droughts).
r5. The regional distribution of rainfall variab1lity is illustrated by
Map 6, on page 298. Variability may be defined as the deviation from
the mean annual rainfall computed from a fairly large number of years
of observation, and is usually expressed as a percentage. Thus, the
perccntual average deviation from the average annual rainfall of rainy
seasons during the period 1940 to 1960, was calculated for 27 stati~ns
well distributed over the Territory. Subsequently, lines of equal vana
bility werc drawn by means of interpolation at ro percent. intervals. A
pattern identical to that of Map 4, on page 294, and Map 5, on page 295,
emerges, namely a graduai decrease in variability from south-west _to
north-east. Along the coast line the variability exceeds 70 percent. wh1le
it varies between 50 percent. and 30 per cent. in the central part of the
Terri tory and drops below 30 percent. in the north-east. Hence the latter
1 As rneasured over periods o20 and 19 years respectively.
2 Report of the Long Term Agricultural Policy Commission (S.W.A.), p. 8. SOUTH WEST AFRICA
=:=:-_·:::::~::..·.:----:=:=:===~
.._-_-_-_- ----~-------------~
-----------------------------~
--=-=-=-=-=-=:- ;"--""·-="-'=-=
Wolvis. Bay -_-_-,..Wind,li,C,qk_-_-_-~
---------, VARIABILITY
--------_-:==..-_-.
:-:-:-:-:-:-j Po:runtual OczpartiJrii
trom Avo:ragiiAnnuat Ralnfcll
-~------,===~·
.------_-_,-_-----9
--------j
!<ili.t.m--:::j:--4 D Loss tha30•1.
t;j 30 • 40 •1.
-=~
~ 40 ·50'/,.
Mcp 6 l!l 50 • 60 .,.
.-·-..,,
a 60 • 7a•/,
100 50 0 100 200
Fl Kî1ometre,j ·88 8Ora- than. 70•1,
area has the combined advantages of a higher annual amount of rainfall,
a longer rainy season and smaller variability of rainfall.
(ü) Evaporation
16. The effectiveness of rainfall in South West Africa, especially in
the plateau areas, is further restricted by an extremely high rate of
evaporation which is vastly in excess of the rainfall 1, and which is
attributable to the fairly high day temperatures, the low humidity and
a low air pressure owing to the high altitude.
The Territory being a summer rainfall region, the season of highest
rainfall coincides with the season of maximum evaporation, with the
result that dry-land cultivation is possible practically only in those
areas where the annual rainfall exceeds 400 mm.
III. CLII\IATIC REGIONS
17. As indicated above, rainfall is the main factor distinguishing
between various climatic regions in South West Africa. Taking into
1 By "rate of evaporation"is meant the rate at which water evaporatesfrom an
open surface. As in the case of rainfall, evaporatiis measured in millimetresor
inches. Thus, for exarnple, in Windhoein January the average rainfall is 76.7 mm.,
wbereas the average evaporation from an open surface is -;i7mm. COUNTER-MEMORIAL OF SOUTH AFRICA
299
'.:e-----B - Ondangua
. : .'t=:B 1T--...
c,
'
'\~ Wlfldt,ogk.
Warvis
Ba l~r' •++•••••:•:2:~ CLIMATIC REGIONS
:\: ~Â2';:: .":
:: t~: : : :
"';1;\;::';:
• • •1• • • • • •
..,...,..
::,"'~:::=: D CooJ Oas.cir-sA
. "T'\••.
..,....... . ~ v,arr~OG'scrts.. e
Ludoeitz ·;))l';- ~onshoop=
W scimi-dcs.e-rt:5- - C
..": \:82
100 50 0 IOO ~00
·:\> ., E-î E3 F3 l
Mcp 7
account the various aspects relating to the rainfall 'mentioned above,
as well as ail other climatic elements, thrèe'basic climatic types may
,be differeritiated, viz.,· ·
,(a) cool deserts, occupying appr~ximately 17 percent. of the Territory's
area;
(b) warm deserts, occupying approximately 36percent. of the Territory's
area;
(c) semi-deserts, occupying approximately 48 percent. of the Territory's
area.
These divisions, each with their subdivisions, are indicated on Map 7,
above.
18. The main climaticfeatures of each of the regions depicted on Map 7,
above, are as follows 1 :
(a) The CoolDeserls
(i) The Cool Littoral Desert of the Namib Coastal Region (indicated
on Map 7, above, as AI)
This region, which comprises the whole coastal area up to 50 km.
inland, is characterized by mild temperatures throughout the year, a
virtual absence of rain, and frequent fog.
1 The terms used to classifytemperatures aredefinedasfollows: Cool :o°C. to ro°C.;
Mild: rooC. to 200C. This class is further divided into Cool-temperale (rn°C. to r5°C.)
and WaYm-temperate (150C. to 200C.); Warm: 20°C. to 27°C.; Hot: above 27°C.300 SOUTH WEST AFRICA
(ii)The Cool Desert of the Inner Southern Namib and the Adjacmf
Escarpment (indicated on Map 7, on p. 299, as A 2)
Mild temperatures are also experienced by this region, but the rain
fall is slightly higher(100-200 mm.) and the aspect less barren than in
the true Namib.
{iii) The Cool Desert of the South-Western Escarpment (indicated on M a'f>
7, on p.299, as A 3)
This region has the lowest winter temperature in the Territory and
at a station like Aus snow is recorded approximately once in five years.
The amount of rainfall is the same as that of the previous region, but
no pronounced summer maximum is registered.
(b) The Warm Deserts.
(i)The Warm Desert of the Kaokoveld and the Northern Inner
Namib (indicated on Map 7, on p.299, as BI a)
This area is essentially a transitional region with a meagre, unreliable
summerrainfall whlchincreases rapidly eastward. Sumrner temperatures
are warm to hot and winter temperatures mild.
(ii) The Warm Desert of Namaland (indicated on Map 7, on p. 299,
as BI b)
Namaland has warm to hot summers and cool-temperate winters
with an unreliable summer rainfall ranging between 100 and 300 mm.
As the rainfall is sufficient to support a sparse vegetation of srnall desert
shrub and grass, the region can be utilized for extensive small stock
farming 1.
(iii) The Transitional Desert of the Eastern Kaokoveld (indicated on
Map 7, on p. 299, as B 3)
Temperature conditions in the Eastern Kaokoveld are subtropical,
with the month of maximum temperature in the early summer. As
tempe-ratures are fairly high, the rainfall (approximately 300 mm.) îs
still too meagretoallow the area to be classedas semi-desert.
(îv) The Transitional Desert of the Central Orange River Gorge (indi
cated on Map 7, on p.299, as B 2)
This region, which experiences what is probably the highest summer
temperatures in the Territory, has no pronounced summer maximum
rainfall, though the total amount is only slightly in excess of 50 mm.
(c) The Semi-Deserts
(i) The Semi-Desert of Damaraland (indicatcd on Map 7, on p. 299,
as CI)
Damaraland has warm summers and cool-temperate winters with a
summer rainfall varying between 300 and 450 mm. As the rainfall
reliability is higher and the duration of the rainy season longer than
in the desert areas to the south, the vegetation has the character of a
thorn savannah and supports extensive large stock farming.
(ii)The Cool Semi-Desert o/ the Central Highlands (indicated on .Map 7,
on p. 299, asC 2)
Owing to their altitude, the highlands immediately to the south 8:nd
east of Windhoek experience fairly low summer temperatures, wh1ch
1
As to the meaning of extensive stock farming, vide footnote to para. 31, infra. COUNTER-MEMORIAL OF SOUTH AFRICA 301
lower the average annual temperature to less than the Jimit value of
[8°C. In most other respects, the region forms a continuation of the
:semi-desert of Damaraland.
(iii)The Warm North and North-Eastern Subtropical Semi-Desert (in
dicated on Map 7, on p. 299, as C J)
This region is favoured by the highest annual rainfall (500-600 mm.),
the smallest variability of rainfall (less than 30 per cent.) and a rainy
~,eason of longer duration (4 to 5 months) than any other part of the
Territory. Temperature conditions vary from warm to hot in early
·summer, when the highest temperatures are recorded, to wann-tem
perate in winter, while the vegetation may be described as deciduous
savannah.
F. Vegetation
19. The great diversity observed in the topographie and climatic
,conditions is more or Jess paralleled by regional diversity in vegetation
and soil. Thus, large areas of fairly dense vegetation are confined to
the north and north-east of the Territory (the relatively favourable
Semi-Desert Region). On the other hand, the areas to the west of the
Escarpment are so barren or so sparsely vegetated as to preclude any
form of agricultural exploitation whatsoever. In the central area the
vegetation changes gradually from an arid shrub steppe in the south
to an open thorn savannah with grass and scattered trees towards the
north.
G. Natural Resources
1. lNTRODUCTORY
20. Natural resources are defmed as "those aspects of man's endow
ment and (physical) environment upon which people are dependent
for aid and support ... 1". Natural resources are essentially neutral
material, but their assessment should be conducted in terms of their
:potential human utilization.
Il. WATER RESOURCES
21. Agricultural and industrial development in South West Africa
is seriously hampered by a severe lack of water resources. The effective
ness of the low and unreliable rainfall is diminished by the high rate
of evaporation already mentioned • It is estimated that more than 90
percent. of the average annual rainfall of the Territory is lost directly by
evaporation and indirectly through the transpiration of plants. Since the
major part of the balance of the rainfall precipitates over the nort~
eastern sector of the Territory, where there is no surface drainage, 1t
follows that only a small fraction of the total rainfall of the Territory
is actually available for utilization.
1 James, P. E. and Jones,C. F. {eds.), American Geography: lnventory and
Prospect (1954), p. 227.
2 Vide para. r6, supra.302 .SOUTH WEST AFRICA
Surface Flow ..
22. Inland rivers ·in South West Africa are all intermittent. Since
they are fed by a low and erratic rainfall, and. because their beds are
choked with erosional debris, there is a serious loss of ·surface flow
through seepage. Actual flow is limited to a fèwshort-lived streamfloods
during th~ rainy season, leaving a dry, san·dy river-bed dur_ingthe rest
of the year. During the highest flood of the Swakop River (whichîs a
typical South West'African inland river) recorded between r946'and 1956,.
the river's ïlow was coritinuous· for only 72 hours. The flood took only'
4 hours to reach its maximum flow of 294 cub: m. per second t and dis
charge was practically 'negligible duririg the last 30 hours of recorded·
flow. The Fish River in the south is the only ·river with a fairly sub-_
stantial number of permanent pools along its course and during good·
rainy seasons may have flowing water for up to 4 months of the year.
23. Attention has been given to the construction of surface storage
dams in the interrp.itte.nt, rivers. Since the Second_World War a_number
of storage dams for municipal use have been constJllcted in_the south,.
so that five ~ownspresently augment their w~ter supplies from this source ..
In 1962 a dam was completed in the Fish, Riv·er, froin which eventually
some 2,500 ha.. are to be irrigated. However, serious diffi.culties are
caused by the high silt content of flood water, andiby the high rate of
evaporation. To ,liinit evaporation, _çlams are const_rucJed as deep as.
possible; and for the same reason water is sometimes even purposely.
stored under a sandy 'silt-bed and brought to the surface again by
pumping, when required for use.
24. In the Native Reserve of Ovamboland, in the northern part of
the Territory, where the rainfall is nonnally sufficient to fulfil the
requirements of the inhabitants, the recurrent periods of drought never
theless make famine a real menace. To combat this problem the Admi
nistration had prior to 1960 caused nearly 100 dams of different types
and sizes to be constructed. Owing to the low gradient and the litholo
gical nature of the area 2most of these dams had to be,excavated in the
shallow water channels, where they are filled during the period of flood.
However, there is a limit to the depth to which such dams can be exca
vated, because of the presence of a high table of underground ·water
w_hichis unsuitable for human or animal consumption by reason of its
minera! content. \Vhen larger dams are required, the excavations are en
closed by circular earthen embankments into which the water is pumped.
The largest dam of this type in Ovamboland is larger than most of the
municipal storage dams in the Territory.
25. The only perennial rivers to be found in South West Africa are
exotic and, except for small sections, constitute part of the Territory's
boundaries. In the south the Orange River flows in a r,ooo m. gorge,
and offers only limited potential for irrigational development. According
to the boundary delineation of the Treaty between Germany and Great
Britain in 1890, the southem boundary of the Territory follows the
northem bank of the Orange River, so that South West Africa has no
1 r cub. m. per second equals 35.2 cusecs (cubic feet per second) or 792,000
gallons per hour.
2 The surface material in Ovarnbolandis sandy and pornus to great depths, thus
precluding ordinary dam c;onstructionwhich needs a firm bedrock. COUNTER-MEMORIAL OF SOUTH AFR1CA
1egal daim to water from the river. Respondent has, however, accorded'
the same privileges to riparian owners on the northem side of the river
1
as those·being held by the riparian owners in the Republic itself • Sorne
srnall-scale irrigation is accordingly taking place on the South West
African side of the river, while the Orange River water is also being
utilized for diamond mining at the Oranjemund settlement within the·
Territory. ·' ·
Along the northem boundary of the Territory, two peremùal rivers,
the Kunene and the .Okavango, offer themost reliable and accessiblewater.
mpplies in South West Africa, but there are a number of obstacles still•
to·be overcome before the water of these rivers can·be utilized for irri
gation by the Native peoples living in their vicinity. Thus, in the case:
of the Kunene, owing to the low gradient and brackish soils in Ovambo-1
land, irrigation will have to proceed with caution and the most suitable
crops and farming practices will have to be determined .by experi
mentation. Furthermore, as a result of the rugged and inhospitable.
gorge along which the river descends to the sea, utilization of its wat\!~,,
whether for irrigation purposes or for the generation of electric power,.
will requin~ detailed scientific s~rveys as well as considerable capital
and skill. · · · · · · ·
The Okavango seerns to offer better potentialities for irrigation· than:
the. Kunene. Ithas beeri determined that from the best potential dam
site in the Okavango sorne 50,000 to ·60,000 ha: could be irrigated.'
In this case problems concem the arousing of sufficient interest on the.
part of the inhabitants of the Okavango area, and the fitting of an irri
gation scheme into planned and .co-ordinated develbpment-matters to.
be dealt with in appropriate parts of this Counter-Memorial. .
The Linyanti and Zarnbesi Rivers are of importance only for the,
eastern tip of the Caprivi Zipfel, where difficulties are occasioned by
the swampy character ·of the· area; the presence of tsetse fly, and the
lack of suitable dam sites.
Underground Water
26. Underground water cornes to the surface at springs and fountains'
in some places in South West Africa, and many of the towns and Native·
settlements developed around the sites of perennial fountains. In ad
dition, seepage water in river beds is utilized in some places for domestic
pur'poses and even for small-scale irrigation. '
For the most part, however, underground water cannot be tapped
without making use of boreholes. In the central and extreme southerri
parts of the Territory, ground water is not stored readily and drilling
is often discouraging. Towards the east conditions are more favourable,.
some boreholes yielding up to 30,000 cub. m. per day, but further on
eastwards the depth of the boreholes increases to approximately 300 m.,
which, together with a corresponding decline in the quality of the water,
make exploitation costs almost prohibitive.
Conclusion
27. From the foregoing it is apparent that the only considerable
water potential is confined to the areas in the north and north-east of
the Territory. The scarcity of water resources in the remainder of the
1 Vide Act No. 54 of r956, sec. 174, in Statu/es of the Union of South Africa r956,
Part II, Nos. 48-73, p1301.304 SOUTH WEST AFRICA
Territory is a serious impediment to substantial industrial development,
and tends to restrict agricultural activity in the major part of the Ter-
ritory to livestock farming. ·
III. LAND RESOURCES
28. The land resources of any country depend basica1Jy on its climate,
vegetation and soils. As some of these aspects were discusseçl earlier,
the exposition given here is largely an assessment of their significance
with respect to agricultural development in South West Africa.
The three major primary industries based on land resources are crop
ping, stock farming and timber exploitation, and the Territory's poten
tialitics in respect of each will be discussed in tum.
(a) Cropping
29. As a result of the low and erratic rainfall, normal dry-land crop
ping 1 may be practised over only r.r percent. of the Territory's area;
possibilities for marginal and sub-marginal dry-land cropping 2exist over
ro percent. and 2r percent. of the area respectively, leaving67.9 percent.
of the country in whlch dry-land cropping is precluded 3. Irrigation
potential is best in the north-eastem areas, which are already better off
than the rest of the Territory in respect of rainfall; but these favourable
conditions are to a certain extent off-set by the low fertility of the
Kalahari sands. Over the rest of the Terri tory too the soil is at best only
of moderate fertility. Since South West Africa is situated in the transi
tional belt between the tropics and the temperate regions, temperature
conditions are not really favourable for either tropical or temperate
crops.
(b) Stock Farming
30. Stock farming is the predominant type of land use in the Ter
ritory. Environmental factors such as vegetation and water supplies lead
to a zonal distribution of stock farming in the Territory-small stock
in the arid southem areas, mixed small and large stock in the central
areas, and large stock in the better watered northem and north-eastem
areas. These features cast an interesting light on some aspects of the
pre-colonial history of some of the major population groups, viz., the
Nama, the Herero, the Ovambo and the Okavango tribes: the agri
cultural Ovambo and Okavango occupied the sub-tropical north; the
Nama, mainly interested in small stock, roamed over the arid steppes
of the south and also made use of the mixed grazing offered by the
thorn savanahs of the central areas; whereas the cattle-rearing Herero
invaded the same savannahs from the north and became engaged in
almost continuous warfare with the Nama ~.
1 Dry-land cropping is said to be normal when crop yields are fairly stable, the
yearly variationin yicld relativel~mali and total crop failures virtualunknown.
2 Jl,farginal dry-land croppingOn account of a higher rainfall variabilitcrop
yields are not only smal!er in quantithan in the case of normal dry-land cropping,
but also liable to violent fluctuatioTotal crop failures occur from time to time.
Sub-marginal dry-land cropping: Bath the amount and the reliability of precipita
tion are smaller than in the case of marginal dry-landcropping. Dry years do not
only result in crop failures, but preclude the possibilof cropping altogether.
3
4 Vide Map 8 a, on p. 305.
Vide Chaps. II and III, infra. COUNTER-MEMORIAL OF SOUTH AFRICA 305
................
______ ....··
CROPPING POTENTIAL
-===========~ Normal cropping
============~....
:--------c:-i MarginalDryland cropping
--:-:-:-:-:-i _-.J
a - - - - -: submarginalDryland cropping
No orylandcropping
--··
LIVESTOCK
Carrying Capacity
Hactarcz pczr Largo
Stock Unit
• Lez~ thcrn G
G-8 15-30
b m ~
8-10 30-45
• ~
Map8 10-15 0 abovc45
• SOUTH WEST AFRlCA
31. ·Thegrazing areas in the Territory have an extremely low carrying
capacity as can be seen from Map 8 b, on page 305 1•The southern areas
support only one large-stock unit or six small-stock units on an area
of 30 to 45 ha. ; in the central area the carrying capacity is approxi
mately one large-stock unit to rn ha.; while to the north the carrying
capacity increases to one large-stock unit per 8 ha. and probably one
large-stock unit per 6 ha. along the Okavango, Linyanti and Zambesi
Rivers. The low carrying capacity of the grazing is due chiefly to the
sparseness of the vegetation as a result of the low rainfall. Because the
quality of natural grazing in summer raînfall areas decreases with
maturity, farmers experience great difficulty in providing adequate
grazing for their stock in the spring and early summer months just before
the advent of the rainy season. Moreover, grazing in the Territory gener
ally suffers from a deficiency in phosphorus, and supplementary feeding
is consequently necessary.
(c) Timber Exploitation
32. The woodland vegetation of the north-eastern portion of the
Territory contains some species of trees that could be exploited com
mercially. It is estimated that the area of exploitable woodland is 20,000
sq. km. in the Ovamboland and Okavango Native Reserves, 10,000 sq.
km. in the unoccupied state land in the Grootfontein district, and
5,000 sq. km. in the-Eastern Caprivi Zipfel. Fire belts have had to be
eut to <lividethe forest areas into smaller units and thus to protect them
against fires, especially those lit by Bushmen in pursuit of game-a
frequent occurrence, e.g., in the Okavango. At present timber is being
supplied to the Tsumeb Mine, and two small saw mills are in operation
near Grootfontein, but exploitation is hampered by the absence of
adequate transport facilities in the uninhabited parts of the north-east
and the variety of species of timber occurring in these parts, which
necessitates selective exploitation and results in .higher costs of labour
and transportation.
(d) Conclusion
33. In Map 9, on page 307, the land resources of the Territory are
depicted regionally in terms of areas of relatively similar agricultural
land use and potential-so-called agricultural regions. The potential of
each of these regions 2 in respect of dry-land cropping, irrigation, stock
farmîng and timber exploitation is set out in the table on page 308.
In view of the facts set out in the previous paragraphs, it is not
surprising that the greater part of the population of South West Africa
is to be found in the northern and north-eastem parts of the Territory,
i.e., in the Ovamboland, Okavango and Eastern Caprivi Reserves. This
l The following limit values are applied in describing the potential intensiveness
of pastoral land-use in Southern Africa (vide \Vellington, J."A Tentative Land
Classification of Southern Africa", in The South Africlln GMgraphical Journal, Vol.
XXXV (1953),p. 17):
Intensive: One large-stock unit t2ha. or less.
Semi-intensive: One large-stock unit to 2-4 ha.
Extmsive : One large-stock unit to 4-8 ha.
Ultra-extensive: One large-stock unit to 8 ha. or more.
One large stock unit equalI cattle unit or 5 sheep or goat units.
2 Having regard to the climatic features, soil fertility, availability of water for
irrigationand other relevant factors referred to above. COUNTER-MEMORIAL OF SOUTH AFRICA 307
AGRICULTURAL REGIONS
tNorthG"rn and N::Jrlh·lil~star• ~ropping
andLo~ stock Farmi.Aog1on
2. Lorgci Stoè.k Fc.l"ming and Crq:ping
Raglon or thKnr-&twld Il
3. North-oas.Lorgc:tstoand
SubmarginaCrop,ping RGgion !mlffl
4, Ulttg;,c.iv~ Lal"gQstoc.k Ro-giol"\
ot southitOomaroland
5.CG:ntralJllro-o:;..tizn:liYQ: •b:itd
LÜdGritt. Stock FarmingRagion §
e.SouthQr-n Ultra ...a!atnQII
stockF"arming RQ:gion
Map 9 B
7. Tha Namitt F'7'l
l::_::_J
is, however, an aspect which will be dealt with more fully in later parts
of this Counter-Memorial.
IV. MINERAL RESOURCES
34- South West Africa has a great variety of minerai deposits but
only a few have proved of real economic importance. There are con
centrated occurrences of diamonds, lead/zinc, copper and salt deposits;
for the rest the Territory's minerai resources are characterized by rich
samples from small quantities widely dispersed over the country.
35. Diamonds are found in the southern Namib area of South West
Africa. The diamond mining at Oranjemund is by far the most profit
able of ail mining ventures in the Territory. Although the prospects
for the immediate future are good, diamonds are a dwindling resource.
The remaining life expectancy of the Oranjemund fields at present rates
of exploitation is put at no more than a few decades. At present dredg
ing for diamonds is taking place off the coast of the Territory, but
this type of mining is still in its infancy and it is difficult to say with
any certainty what its :prospects are. Large-scale mining also takes place
at Tsumeb, where vanous base metals such as lead, copper and zinc
are mined. The Oranjemund and Tsumeb mines together account for
about 96 per cent. in value of the Territory's total minera] output.
36. Apart from the two instances mentioned, minerai occurrences in
South West Africa are generally of insufficient size to warrant large-308 SOUTH WEST AFRICA
THE AGRICULTURAL POTENTIAL OF SOUTH WEST AFRICA
Regfon Dry-land Stock
cropping Irrigation farming Timber
1 1 1 1
I Normal to mar- Good Large stock, ex- Extensively ex-
ginal; soit fer- tensive ploitable
tility low to
moderate
2 Marginal; soi! 1 None Large stock, ex- Sorne exploi-
fertility J tensive tation pos-
moderate. 1 sible
3 1Subrnarginal; None Large stock, ex- Extensively ex-
soi! fertility tensive ploitable
low 1
1
4 1None Extremely 1 Large stock, ultra-1 Negligib!o
limited extensive
1
None
5 None Extrernely Large stock, and
lirnited small stock
ultra-extensive
6 None Limited Small stock; ultra- None
extensive to
marginal
7 Extremely Marginal small None
1None limited stock farming in
the better parts
1 1
scale mmmg operations. There are a number of small-scale mines in
the Territory producing tin, tungsten, copper, etc. On the coast, salt
is produced lly the evaporation of sca-water.
37. As far as minerai fuels are concerned, the known coal deposits
in the Territory are not worth exploiting, whereas prospecting for
petroleum, especially in the northern parts of the Territory, is still in
progress.
38. Deposits of iron ore are to be found at various places in the
Territory, but the iron content is generally too low to warrant exploita
tion. The only really good iron ores occur in a locality whcre transport
difficulties have up to the present not made them an economic proposi
tion, while the absence of known deposits of workable quantities of
ëoal reduces their potential in a local iron and steel industry.
V. MARINE RESOURCES
39. In the period after the Second World War South West Africa has
emerged as a considerable fish-producing Territory, due to the presence
and exploitation of a teeming marine life along the otherwise barren and
inhospitable coast. This marine asset is shared by Angola and the
Republic of South Africa along the south-western coast of Africa, and COUNTER-MEMORIAL OF SOUTH AFRICA
TRANSPORTATION
ROUTES
--
~:1,Mrw:tyP'rîwat.il~
fb:!IA.-MllwQ)III01.Dl:p:,tl. <If
Map 10
calls for close co-operation in research and conservation measures. The
marine fishing resources support a pilchard and crawfish industry.
40. Inland fish resources occur only in the extreme northern and
north-eastem parts of the Territory in perennial rivers and swamps. Al
though these resources are ,not exploited commercially to any con
siderable degree, they constitute an important part of the food supply
of the local inhabitants.
H. Transportation
41. Since South West Africa possesses no navigable rivers or other
natural means of transport, transportation within the Territory is
nonnally effected by road or railway. The main transportation routes
are indicated on Map IO, above. In view of the vastness of the
Territory and its low population dcnsity, the cost of transportation is
high and tends to be a limiting factor for both agriculture and industry.
42. The only natural harbour along the coastline is at Walvis Bay,
which forms a part of the Republic of South Africa, and which is far
from the more densely populated parts of the Territory. Overland310 SOUTH WEST AFRICA
transport from the major production and marketing centres in the Re
public of South Africa (whence the greater part of the imports to South
West Africa isderived) is also rendered expensive by the long distance
involved. Thus, for example, the distance from Windhoek to Johan
nesburg is more than 2,080 km. (r,292 miles) 1•
1. Conclusion
43. In the preceding paragraphs of this ChaI?ter, the natural poten
tialities of South West Africa, and the problems mvolved in any attempt
to realize them, have been very briefly sketched. The further factor on
which the development of the Territory up to the present bas depended,
and which holds the key to its future progress, namely its people, will
form the subject-matter of the succeeding two Chapters.
1 Comparable distancesare: From Rome to Paris 1,102 km. or 685 miles; to
London 1,563 km. or 971 miles; to Oslo 2,005 km. or I,246 miles; to Moscow 2,386
km. or 1,483 miles. CHAPTER II
POPULATIONGROUPSOF SOUTHWEST AFRICA
A. Introductory
I, The population of South West Africa is today, and has been for
centuries, a heterogeneous one. When Respondent assumed the Man
date in 1920, the Territory was occupied by at least nine major popula
tion groups differing widely as to appearance, ethnie stock, territories
of origin, culture, language and general level of development. Sorne,
like the Bushmen, lived a primitive nomadic life, existing from the pro
ceeds of the hunt and the wild produce of the veld. Others, like the
Ovambo, were agriculturalists, leading a settled existence in organized
communities. Still others, like the Herero and the Nama, were tradi
tionally pastoralists, following their herds wherever suitable grazing
could be found, but had largely been crushed and impoverished by
continuai wars before Respondent assumed control of the Territory. It
is impossible to understand and evaluate properly the nature and mag
nitude of the task undertaken by Respondent in accepting the Mandate,
and the methods applied in performing this task, without having regard
to the background and prior history of these varions population groups.
This topic will be considered in this and the following Chapter of the
Counter-Memorial.
2. The main population groups found by Respondent in South West
Africa were (in the order in which it is proposed to discuss them below}
the following:
(i) the Eastern Caprivi Peoples;
(ii)the Okavango Peoples;
(iii) the Ovambo;
(iv) the Bushmen;
(v) the Dama (also known as Bergdama or Bergdamara or Damara of
the Hills or Klipkaffir) ;
(vi) the Nama (also known as Khoi or Hottentots);
(vii) the Herero (also known as Cattle Damara, or Damara of the
Plains);
(viii) the Rehoboth Basters;
(ix) the European or White population group {mainly of German and
South African origin, including German officiais and soldiers) 1•
Sorne of these groups have up to the present lived in their own areas
in the northem and north-eastern parts of South West Africa, geo-
1
In addition there were certain minor groups such as the Himba and the Tjimba
of the Kaokoveld (who are herein dealt with as a part of the Herern nation-vide
paras. Sr-82, infra) and some Tswana and Xhosa, who at present amount to only
approximately o.6r per cent. of the population of the Territory and who are for
that reason not specially dealt with. The Coloured People (apart from the Rehobotb
Basters) are also not consideredto have been of sufficient significanchistorically
or numerically, in 1920 (whatever the position may be today) to warrant their
classificatioas a major population group as at that stage.312 SOUTH WEST AFRICA
graphically isolated from one another and from the inhabitants of
the central and southem parts of the Territory, and remote from the
main stream of South West African history. In this category one finds
the tribes of the Eastern Caprivi Strip, the Okavango, and, to a lesser
extent, Ovamboland. It will be convenient, therefore, to consider each
of these three groups separately before dealing with the other groups
which had, prior to Respondent's assumption of control, corne into
closer, and often violent, contact with one another.
The.history of the remaining groups, i.e., the Bushmen, Bergdama,
Nama, Herero, Basters and Europeans, is one of interaction and -fre
quent conflict with one another. The Bushmen and Dama did not;
however, as groups influence this history to any extent-for the most
part their role was played by individuals and consisted of submitting to,
or attempting to escape, suppression by others. They also may, there
fore, be considered separately, although, in the case of the Dama, brief
referencc will have to be made to general historical events in the nine
teenth century and early part of the twentieth century.
As from the first part of the nineteenth century, the history of the
Nama and the Herero is intertwined to such an extent with each other;
and later also with that of the White man in South West Africa, that
completely separate treatment of each group is impossible. The same
applies to the Rehoboth Basters, who only appeared on the scene in
South West Africa towards the latter part of the nineteenth century.
In regard to these groups, a separate discussion of each will be given,
including its history up to the beginning of the nineteenth century.
Thereafter the history of these groups forms a part of the general
history of southern and central South West Africa, and will be dealt
with as such in Chapter III, which will also contain a short summary
of the position of each of the population groups in the ycars imme
diately preceding the assumption of the Mandate by Respondent.
3. Tt may be mentioned that some of the information contained in
the following paragraphs has derived from officiais and ethnologists
who have either worked with. or studied the varions groups often
for the purposes of unpublished theses or lectures. It will therefore not
be possible to cite published works in support of all aspects of the
information concerned. Should any of these facts be disputed, or should
any member of the Court wish any aspect to be amplified or illustrated
by oral testimony, Respondent would at the hearing willingly provide
experts for that purpose.
B. The Eastern Caprivi Peoples
I.COMPOSITION OF THE POPULATION
4. The peoples of the Eastern Caprivi Zipfel 1 (often referred to
simply as the Caprivi, or the Caprivi Strip) are of Bantu stock, but
are not ethnically related to any of the other Bantu clusters found in
South \Vest Africa, i.e., the Ovambo and the Okavango peoples 2,or the
Herero.
1 As to the origin and meaning of the name "Caprivi Zipfcl",videfootnote to
para. 6, infra.
2 Save that the :\1bukushu of the Okavango (vide para22, infra) are relateto
the small number of Mbukushu found in the Caprivi. COUNTER~MEMORIAL OF SOUTH AFRICA
The main population groups in the Caprivi .are the Masubia and
Mafue. Together they constitute almost 88 per cent. of the total popula 7
tion. Small numbers of the l\fayeyi, Matotela, Mashi and Mbukushu tribes.
make up· the rest of the population. These small segments have in
course of time become incorporated in the Mafue group, to whose
chief they bear allegiance. · · ·
II. ÜRIGIN AND HISTORY l
5. The peoples of the Eastern Caprivi were, prior to the coming of
the White man, geographically, politically and historically eut off from
the rest of South West Africa. Their history was bound up with that
of the surrounding territories, Barotseland and Bechuanaland. In the
early part of the Jast century, the area surrounding and including the
Caprivi, was overrun by the Kololo 2,a Sotho tribe, under the leader
ship of one Sebitwana. After his death, the power of the Kololo waned,
and evcntually the Lozi (or Rotse-the inhabitants of Barotseland)
overthrew their conquerors (after a total rule of about 40 years) and
themselves became the dominant tribe in the arca. Their rule over the
tribes in the Caprivi came to an end when Germany effectively took
over its contrai, which, as is shown hereunder, occurred only in the begin
ning of the present century.
6. In an agreement of r July 1890 the British Government recognized
that the territory thereafter known as the Caprivi Zipfel 3 would
thenceforth fall within the German sphere of influence. The purpose of
the agreement was to provide access from South West Africa to the
Zambesi by a strip not less than 20 English miles in width at any point.
The German administration in South West Africa, however, made no
immediate attempt to exercise control over the area. In the result it
became a sort of no man's land, and is said to have been the happy
hunting ground of poachers and ne'er-do-wells. Severa! German ex
ploratory trips were undertaken and all reports referred to the unrestric
ted slaughter of game, including elephants, rhinos, etc., by numbers.
of European poachers.
7. In 1908 the German Government at Windhoek decided to initiate
some form of administration in the Caprivi Strip. Hauptmann Streit
wolf was sent with a small force, including a sergeant of police and a
medical orderly, to be the first Imperia! Resident. After a trying jour
ney from South \:Vest Africa, he reached a spot on the Zambesi across
the river from the British station at Sesheke, where he established his
headquarters and which he named Schuckrnannsburg in honour of the
then Governor of South West Africa.
8. On the arrivai of the Germans, the Lozi inhabitants of the area
crossed the Zambesi and joined their fellows in Northern Rhodesîa,
taking with them a number of the Masubia (whom they considered
their serfs) as well as their own cattle and that of the Masubia. After
1 The material for this section is derived largely fromReport on the Adminis
tration of tlie Eastern Caprivi Ziptr940 (unpub!ished).
2 Andersson, C. J..The Okrwango River:A Narrative of Travel, Explorationand
Advcnture (r861), p. r94.
3 Aftcr Count von Caprivi, the German Chancellor at the time. The word "Zipfel"
is descriptivand means "tip" or "point". SOUTH WEST AFRICA
long negotiation, and with the assistance of the British authorities, the
Lozi were prevailed upon to return the cattle belonging to the Masubia,
as well as the members of the Masubia tribe taken by them. The Lozi
themselves, however, were not prepared to retum. ·
9. In May 1909, Streitwolf, after an extensive tour, estimated the
total population of the Caprivi to be about 9,000, composed of some
5,000 members of the Masubia tribe, and some 4,000 of the Mafue
and Mayeyi tribes 1•
ro. Towards the end of January 1910 Streitwolf retumed to South
West Africa (travelling this time via Cape Town) to report to the Gover
nor at Windhoek. German control, however, continued to be exercised
from Schuckmannsburg until 1914-
II. During the period of German control the various tribes or rem
nants of tribes were consolidated into two units, the Masubia and the
Mafue, the latter also incorporating the Mayeyi, the Mbukushu, and
other smaller fragments. The Masubia occupied the eastem part of
the Caprivi, and the Mafue proper and the Mashi inhabited the interior
up to and along the Chobe River. The Mayeyi were settled on the
2
north bank of the Linyanti opposite Bechuanaland • The German
administration of these tribal units was largely of an indirect nature,
i.e., it was carried out by making use as far as possible of the traditional
tribal authorities.
12. In 1914, after the outbreak of the First World \Var, a Rhodesian
force collected at Sesheke, formally invested Schuckmannsburg, and
took over control of the Caprivi 3.During the period of the War, admini
stration of the Caprivi was undertaken by the Bechuanaland authorî
ties. Upon the grant of the Mandate, the Caprivi, together with the
rest of South West Africa, fell under the control of the South Afrîcan
Government. Its further history is a matter which, in so far as it may
be relevant, falls to be considered in later parts of this Counter-Memorial.
III. SOCIAL AND PouTICAL ÜRGANIZATlON
13. The social system of the Eastern Caprivi peoples was based
largely on the principle of patrilineal descent, i.e., children belonged
to the social group of their father. This manifested itself, inter alia, in
the custom of lobola, which is common among patrilineal Bantu. This
custom required a man or his family to hand over cattle to the father
of the woman whom he wished to acquire as wifc. Payment of the
lobola gave the man full legal rights over his children. Polygamy was
practised.
1 The 196o census (unpublished) gives the population figure for the Caprivias
15,840, of which the Masubia is estimated to constitut40 percent. and the Mafue
(with the smaller groups) the balance. In the introductonote to the report on the
1921 census in South \Vest Africa, the population in the Zipfel was giveas4,249,
apparently an under-estimate; vide Report on The Census of the Population Taken
on the 3rd May, r92r and The Census of Agriculture 30th April, r92r (S.W.A.p.vi.
2 It must be noted that the distribution of the population is considered here with
reference to the Caprivi Zipfel only. Segments of the same tribes were, and still
are, also found in surrounding areas such as Northern Rhodesia and Bechuanaland.
3 This was actually the first Allied occupation of enemy territory i1914-1918
War. COUNTER-MEMORIAL OF SOUTH AFRICA
The Eastern Caprivi people generally lived in small villages. A vil
lage sometimes had as many as 30 or more habitations, but it was
often much smaller. The senior man of each village acted as village
headman and had certain local powers, as will be indicated hereafter.
People not related to the village head could join the village with his
permission.
14. The inhabitants of the Eastern Caprivi were, as indicated above,
really only portions of tribes forming part of a kingdom which existed
during the greater part of the nineteenth century under alterna te Kololo
and Lozi domination. They were, at the tune when the Mandate came
into operation, ruled by two supposedly hereditary chiefs whose autho
rity was, however, none too strong. Many of the people still looked
upon the Lozi court as the most important governing body in tribal
matters, and constantly sought contact with their kith and kin across
the river. One of the chiefs was at the head of the Mafue, Mayeyi and
Mbukushu sections, and the other of the Masubia section. Both chiefs
followed the Lozi system of tribal ~ovemment.
According to this system the ch1ef was looked upon as head of his
people, the preserver of peace and good order, and the protector of
those in need. He was advised and assisted by a Ngambela, who func
tioned as a sort of "prime minister", and by counsellor-headmen. The
chief, the Ngambela and such headmen constituted a council known as
the Kuta.
The Ngambela was appointed by the chief from nominations re
ceived from the people in general assembly. Next to the chief, he was
the principal figure in the management of affairs. AU matters of State
were fi.rst referred to him, and he could, after consultation with the
counsellor-heaclmen, dispose of minor matters himself.
Each counsellor-headman represented a particular area. In the event
of vacancies of headmen in the Ki,ta, new members were nominated
by the chief in agreement with serving members, and the people were
informed thereof at a public meeting. New tribal laws were made by
the chief and other members of the Kuta, and all laws so made were
announced at tribal gatherings.
15. For the purposes of local administration, the territory under the
chief's jurisdiction was divided into wards. Each ward had its own
headman, who was elected by the residents of the ward in conjunction
with the Kuta member representing that area. The selection of a head
man had to be confumed by the Chief-in-Council, from whom the
headman also received instructions as to the duties he had to perform.
In addition, village headmen performed minor administrative and judi
cial functions under the general control of ward headmen.
IV. LANGUAGE
r6. Each of the five tribes had its own vemacular but all the people
also knew, and spoke, Silozi or, as it is also ca\led. Sikololo (the lan
guage of their erstwhile rulers, the Lozi). Silozi was therefore the corn
mon medium of communication, and in fact it stiU is. It Iater also
became the language of the schools. Itis a Bantu language, but quite
different from the other Bantu languages spoken in South \Vest Africa. . SOUTH WEST.AFRICA. ··,
V. RELIGION
17. The Caprivi peoples have their own traditional religion. They·
believe in a supreme being, or deity, who decrees and supervises the
fortunes of man in a remote way. . ·
A form of ritual whereby the intercession of the spirits of departed
ancestors is sought, is commonly practised. When the help of the ancestors
is needed, a ceremonial feast 1s held, and the Ngombodi (a person who
is believed to be in communion with the ancestral spirits) is sum
moned. A beast, black in colour, is slaughtered, and while its blood
{or beer, or both) is poured over a rough framework or platform speci
ally constructed for the occasion, the Ngombodi speaks to and implores
the aid of the departed spirits. The ceremony concludes when women
pour water over the Ngombodi, and then run away.
No missionaries settled in the Eastern Caprivi prior to 1920 (the
year in which the Mandate was granted to Respondent).
VI. ECON'OMY
18. The Eastern Caprivi peoples were, by tradition, primitive agri
culturalists and stock farmers, with the general material culture nor
mally pertaining to such people. They added to their food supply by
hunting, fishing, and collecting wild fruits. Their bouses were usually
made of material obtained in the immediate neighbourhood, mostly
reed and thatch.
19. Land was normally used on a communal basis. When it was
sought to establish a village, the chief's permission was first obtained.
Thereafter, the Kuta member who had jurisdiction over the area, de
marcated a stretch of land for the use of the village. The village head
man then divided up the area so demarcated amongst the villagers.
The individual to whom land was allotted, made no payment in respect
thereof, and he retained the right to use it for bis lifetime. It could,
however, be taken away from him if he repeatedly flouted the authority
of the chief, or othenvise seriously misbehaved.
20. Since there was no individual ownership of land, there was also
no inheritance of land, but land once allocated to a village remained
in the possession of its inhabitants. \Vhen a man died, bis close relatives
divided his movable property, or so much thereof as they considered
equitable, among his children. The deceased's eldest son was then re
quired to givc whatever was not so distributed to bis paternal uncles.
When a woman died, her relatives distributed ber possessions. The sur
vivfog husband did not inherit from his deceased wife.
21. The Eastern Caprivi tribes, as found by Respondent, still lived
in the same way as their ancestors had for centuries. As late as 1938,
for example, it was found necessary to depose a chief for refusing to
stop practising witchcraft . The people were content to produce only
sufficient for their subsistence, and most of the work was done by the
women-folk.
1 U.G. 20--1939, para.420,p. 57. COUNTER-MEMORIAL OF SOUTH AFR!CA 317
l)
C. The Okavango Peoples
1. COMPOSITION OF THE POPULATION
22. There are five mutually independent tribes in the Okavango ter
ritory, viz., the Kuangari (or Kwangali), Djiriku, Bunja, Mbukushu
.and Sambiu. They are negroid, Bantu-speaking peoples. Like the
·ûvambo, these peoples differ completely in their way of life from the
_pastoral Herero, who are also of Bantu stock.
The size of the Okavango population in pre-Mandate days is not
known. An estimate of 24,249, given in Respondent's Annual Report to
·the Council of the League of Nations on the Administration of South
1
West Africa, 1921 , included the Natives in the Eastern Caprivi Zip
fel2•
The 1951 census showed the Okavango population to be 21,873, and
-the 1960 census, 27,87r. The tribal percentages at the present time are
estimated to be as follows: Kuangari 26.50; Bunja 18; Sambiu 17;
Djiriku 20; Mbukushu 18.50.
IJ. ÜRIGIN AND HISTORY
_23. In the early days of South West Africa, the larger part of each of
the tribes Iived on the north bank of the Okavango River (1.e.,in Angola),
whi1e the smaller part of each lived on the south bank. There is evidence
that this was still the-position in 1859 3• It would therefore appear that
the tribes in the Okavango territory must have established themselves
~n the areas now occupied by them in the course of the last hundred
years. .
Although the Okavango territory" stretches a considerable distance
.away from the Okavango River and into the interior of the desert-like
Omaheke-veld, most of the inhabitants of the territory are distributed
along a narrow stretch of country on the south bank of the river, from
Kuring-Kuru in the north to Bagani in the south.
Each one of the five tribes has its own defined tribal area. In some
-cases these areas are. separated from each other by an uninhabited
stretch of land.
24. Until fairly recently· thcre was virtually no contact between the
people of the Okavango and the groups to the south. This was due to
the Okavango territory's virtual geographic isolation from the south by
arid uninhabited stretches of country-a factor which probabiy also
saved the Okavango people from the armed struggles which marked
the history of the southern groups during the nineteenth century. At
-0ne time the Tswana from Ngamiland in northern Bechuanaland used
to corne on regula.r cattle-raiding expeditions 4, and it is also known
that the Kuangari were sometimes subjected to raids by the Kuanyama
of Ovamboland, but othenvise the Okavango people's main contact
with the "outside world" was with the related tribes of Angola.
1U.G. 32-1922, p.12.
2For the population figures of the Caprivivide para. 9,supra,and the footnote
thereto.
3 VideAndersson, C. J.,The Okavango River: A Narrative of Travel, Exploration,
and Adventure (1861), pp. 146, 184190.
~ Andersson, C,J., op.ât., p. 194.3r8 SOUTH WEST AFRICA
This secluded existence continued during the German regime. A mili
tary post was established on the Okavango River, but otherwise the
territory was not brought under German administration. The first real
attempt to bring European influence to bear on the territory was in
rgIO, when a Roman Catholic mission station was established at Diriko.
25. When the Okavango people settled in their present territory, they
came across a group of Bushmen, now called the Mbarakwengo, along
the river; and further inland, throughout the Omaheke, lived the
nomadic !Khung Bushmen. Although the Okavango people employed
the Bushmen as servants and cattle herds, they did not accept them as
part of their society, and always looked upon them as people of inferior
status 1•
III. SOCIAL AND POLITICAL ÜRGANIZATION
26. The ba~is of the social structure was the principle of matrilineal
descent, i.e., children be1onged to the social group of their mother.
Specificpatterns of behaviour towards individuals in the group of matri
lineal kinfolk were determined by the system of kinship. Thus a very
strong relationship existed between a man, his sisters and their children,
and this relationship formed the basis of immediate succession and
inheritancc, a ma.ninheriting both status and property from his mother's
brother.
The unit of local grou,Pingwas the individual family (which consisted
of a man, his wife or w1vesand their children) with its own kraal (i.e.•
the collection of huts belonging to the family together with their cattle
pens). Moreoften than not, however, an number of kinsfolk matrilineally
related to the family head also shared the family residence.
27. The traditional political organization which existed in the Oka
vango when Respondent took over the administration of South West
Africa was that of hereditary chieftaincy. Under this system, the central
authority in each tribe was vested in a chief, who could be a man or a
woman.
Ali ultimate legislative, executive and judicial powers were vested in
the chiefs. Despite the theoretically absolute power of the chiefs, their
authority and influence over their people were often weak, and heads of
families displayed a great deal of independence 2•
IV. LANGUAGE
28. The Kuangali lan~age was, and still is, generally used by the
Kuangari, Bunja, Sambiu and Djiriku with local dialectical versions,
whereas the Mbukushu have a separate, definite language.
V. RELIGION
29. The traditional religions pattern of the Okavango peoples coïn
cides with that of Bantu peoples in general, namely belief in ancestral
spirits. Missionaries have been working among them since rgro 3•
1 Andersson, op. cit., 194.
2 Ibid.,p. 187.
' Vide para. 24,supra. COUNTER-MEMORIAL OF SOUTH AFRICA
VI. ECONOMY
30. The people of the Okavango were, and are still today, both agri
culturalists and pastoralists. They hadlands, or gardens, near their kraals,
and their stock consisted of cattle and goats. Since they lived close to
the Okavango River, fishing naturally played an important part in
their activities, and fish provided a s1gnificant addition to their daily
food 1.
The numbers of their cattle were, in olden times, regularly reduced
2
by raiding • The people could save their own lives by fleeing in their
canoes, by fortifying islands in the river, or by hiding in places known
only to themselves, but they could not save their stock so easily.
Ownership of all land was vested in the chief, who allotted specific
pieces of land to individuals for agricultural purposes. Otherwise than
m the case of the Ovambo 3,no payment was made by the individual
for this privilege. Such individuals retained their rights in respect of
land as long as they used it. Grazing, the produce of the bush, and fi.shing
were free to ail.
31. Since succession was matrilineal, a man's possessions were in
herited by his matrilineal kinsfolk. The administrator of the estate was
generally the eldest living brother of the deceased, and the major heir
was the eldest sister's eldest son. Land could not be inherited, but since
the heir usually occupied the kraal of the deceased and also acted as
guardian of his family, he generally also utilized the deceased's lands.
32. At the time when Respondent assumed the administration of the
Territory, it found the people of the Okavango at a low level of de
velopment. Respondent's Annual Report to the Council of the League
of Nations, 1932 4, mentioned for instance that the people of the Oka
vango were "blessed with every natural advantage" along the river,
since there was an abundance of fish and crops grew readily, but that
they nevertheless failed to plant substantial crops and to store surplus
produce, being apparently content to lead their accustomed hand-to
mouth existence.
D. The Ovambo
l. COMPOSITION OF THE POPULATION
33. The term "Ovambo" does not designate any particular trîbe, but
is a collective name for the various tribes of Ovamboland, of which there
were eight when Respondent assumed the Mandate, viz., Kuanyama,
Ndonga, Kuambi, Ngandjera, Mbalantu, Kualuthi, Nkolonkati and
Eunda. The Ovambo are of Bantu stock, but differ significantly from
5
the other Bantu groups in South West Africa •
Ovamboland is the most densely populated area in South West Africa,
' Vide Andersson, op. cit., pp. rgr, 214-216.
2 Vide para. 24,supra.
3 Vide para. 48, in/ra.
• U.G. 16-1933, para. 436, p. 76.
5 Hahn, C. H. L., "The Ovambo", inThe NaliveTribes of South w~st Africa (r928),
p. 1; Vedder, H., South West A/Yica in Early Times, trans. and ed. by C. G. Hall
(1938), p. 67.320 SOUTH WEST AFRICA
and the Ovambo form the largest ethnie group in the Territory. Owing
to the unreliable nature of population figures for Ovamboland prior to
the I951 census, it is difficult to give an accurate picture of the position
at the stage when the Mandate was assumed.
In 1876, the British Commissioner, W.C. Palgrave 1, estîmated the
population of Ovamboland at 98,000 2•
According to a census which was held shortly before I928 the popu
3
lation of the various Ovambo tribes was made up as follows :Ndonga
65,000; Kuanyama 55,000; Kuambi 8,000; Ngandjera 6,6oo; Kualuthi
6,IOo; Mbalantu 5,IOo; Nkolonkati1,2oo;Eunda600; a total of I47,600.
In I92I the Ovambo population of South West Africa was estimated
at 90,000, apparently an unde:r-estimate 4•
In 1960, according to the census taken in that year, the total Ovambo
population was 239,363, or approximately 45.5 per cent. of the total
population of South West Africa (526,004).
The iribal pe:rcentages at present are as follows: Kuanyama 37;
Ndonga 29; Kuambi I2; Ngandjera 7.5; Mbalantu 7; Kualuthi 5;
Nkolonkati and Eunda together 2.5.
In addition some !Khung and Heikom Bushmen live in the areas of
some of the Ovambo tribes S:
Il. ÛRIGIN AND HISTORY 6
34. Nothing definite is known of the land of origin of the Ovambo· 7·!
This has given rise to some speculation, but, as stated by Dr. J. P. van
S. Bruwer, Professor of Social and Cultural Anthropology at the Univer
sity of Stellenbosch, who bas clone considerable field:researchamong the
Ovambo:
"These speculations, very often·based on assumed cultural traits
and not reality, may be interesting, but have very little connection
with tradition as still remembered by the people . . . Tradition
agrees on one point, namely that the ancestors of all the Ovambo
·peoples were the same, and that they migrated from the shores of a
lake which is not identified, but lies somewhere to the East in the
regions of Central Africa ...
The Okavango is the first geographical link with the past of the
Ovambo people. They settled on the banks of this river at a place
called Oshi)Jloloduring the reign of one Sitenue. Vedder calculated
that this happened during the middle of the sixteenth century 8."
1 Vide Chap. III, para. 37, in/ra.
2G. 50-1877, Report of W. Coates Palgrave, Esq.• Special Commissioner lo
the Tribes North of the Orange River, of his 11:tission to Damaraland and Great
Namaqualand in r876; pp. 48-49. (This report will be cited hereafter as Palgrave.'s
Report.) ·
3 Vide Hahn, op. cil.,p. 2.
4 U.G. 21-1923, p. IO.
' Fourie, L.,"The Bushmen of South \Vest Africa", in The Native Tribes o/ South
West Africa (1928), p. 83.
6 Vide in general Hahn, op. cit.pp. r-2; Vedder, op. cit.,pp. 153-161.
7 Schapera, I., "The Native Inhabitants", inThe Cambridge History of the British
Empire, ed. by J. Holland Rose, A. P. Newton and E. A. Benians (1929-1936), Vol.
VIIT (1936), South Africa, Rhodesia and the Prolectorates, p. 36.
8Bruwer, J. P. van S.,The Kuanyama ofSouth West Africa (A Preliminary Stuày)
(unpublished), p. 15. COUNTER-MEMORIAL OF SOUTH AFRICA 321
35. Tradition has it that the ancestors of the present Ovambo and
Okavango peoples were once known by the name Ajamba, and that
they aII occupied an area along the Okava.ngo River, but that one sec
tion (viz., the present Ovambo) ultimately moved westwards as a result
of intcrnal quarrels t,while the rest remained along the Okavango.
36. On account of its geographic isolation, being bordered on the
south by vast uninhabited stretches, Ovamboland had very little contact
with the groups living in other areas. Sorne trade was carried on outside
the country's borders to obtain copper and iron, but few Ovambo ever
left their tribal territory. The Ovambo peoples were rarely attacked
by outside groups. They were raided by the Herero in the very early
days 2 and later, in the nineteenth century, by the Orlam Nama leader,
3
Jonker Afrikaner •
37. The various Ovambo tribes were often at war with each other,
however, and, indeed, on entering the Territory during the First World
War the South African forces found the Ovarnbos, in the words of General
Smuts "riddled with witchcraft and engaged in tribal forays in which
there was no security for man or beast" 4. Such raids, which had been
carried on interrnittently for many generations s, were not only moti
vated by a desire for gain, but also by traditional enmities between the
various tribes dating back to the times when slave traders bought slaves
from Native chiefs in Angola and Ovamboland 6 for export to Brazil.
Whilst chiefs were seldom averse to selling their own subjects {especiaily
criminals) to such slave traders, they often obtained their main supply
by raiding neighbouring tribes. In return, chiefs were given brandy,
gunpowder and fi.rearms-which they learnt to handle at an early date,
and which they continued to acquire long after the export slave-trade
had ceased. Even in 1917, South African forces were involved in an armed
clash \Vith Chief Mandume 7 of the Kuanyama tribe, whose seat of
government was then in Angola.
38. The Ovambos were little affected by the German rule of South
West Africa. The Germans never extended jurisdiction over them,
contenting themselves with establishing military posts at Namutoni on
the south-eastem edge of the Etosha Pan, and at Okaukuejo, on its
south-western approach 8• They had no civil officiais resident in the
area 9. Mission activities, however, commenced in 1870 9. For the rest,
contact with the Europeans during the German regime was limited to
the employment of Ovambo labourers in the Tsumeb copper mine and
the Luderitzbucht diamond fields 10•
1 Vide Vedder, op. cit., pp.155-157.
2 Vide para. 83,in/ra.
4 Vide Chap. HI, para. rS,infra.
U.N. Doc. A/C.4/41, inC.A., O.R., FirstSess., Second Part, FourthComm., Parti,
Annex 13a, p. 242.
' Hahn, op. cit.,pp. 19-24.
6 Vide, e.g., Andersson, op. cit.p. 196.
1 Vi"de Hahn, op. cil.,p. 9.
8 Vide U.G. 41~1926, para. 145, p. 48.
9 Lord Hai!ey, A Survey of Native AOairs in South West Africa (1946) (unpub
lished).p. 4.
10Hailey, op. cit., p5. 322 SOUTH WEST AFRICA
III. SOCIAL AND POLITICAL ÛRGANIZATION
39. The social structure of the Ovambo peoples was, and still is,
based on the concept of matrilineal descent. Children belong to the social
group or clan of their mother. This affects the system of succession in
the case of chiefs, and also the rules as to inheritance 1•
The matriclans are not localized entities, for although their members
are referred to as ovakwethu (i.e., "our people"), they may find themselves
dispersed throughout the country. Such matrilineal kinsfolk may some
times inhabit the same area, but generally the true corporate nnit in
Ovambo social life is the individual family, residing in its own kraal.
The kraal is normally the abode of a man, his wife, or wives, and their
children, although other relatives sometimes also live with them 2 •
40. The various Ovambo tribes have for a very long time functioned
as separate political entities, each with its own system of rule. They
never developed one central system of govemment. When Respondent
assumed the Mandate, four of the tribes, viz., the Ndonga, Kuambi,
Ngandjera and Kualuthi were ruled by hereditary chiefs, and in the
case of the other four (the Kuanyama, Mbalantu, Nkolonkati and Eunda)
the supreme authority was vested in headman 3, with the assistance
(particularly in the case of the Kuanyama) of officers which had been
appointed during the period of military administration (r9r5-r9zo).
The chief's royal abode was far more elaborately built than that of
the commoners \ In the case of tribes ruled by chiefs, his residence was
the centre of the sacred tribal fire 5 ,which was always kept burning,
and which served as a symbol of welfare and fertility in the land 6•The
sacred fire was held in special reverence among the Kuanyama where,
indeed, despite the death of their last chief in 1917, it is still kept burning
today by the headmen of the tribe 7•
The divine nature of the Ovambo chief of former times has often been
stressed by writers, and there can be no doubt of the exalted position
which he occupied 8• Upon his health and well-being, it was believed,
depended the welfare of the whole country and ail its inhabitants. He was,
9
therefore, always well protected by a strong bodyguard ,and custom
prohibited him from going beyond the boundaries of his own territory 10•
Succession to the chieftaincy was-and still is-matrilineal, passing
either to a younger brother, or to a sister's son 3•
In early days chiefs had the power of life and death over their subjects,
and as is not unusual in such cases, tradition recounts instances of abuse
1 Hahn, op. cit.,pp. 8, 25; Vedder, op.cit.,p. 72.
2 Hahn, op. cit., p24; Vedder, op. cil., p.69.
3 Hahn, op. cit., p8.
4 Vedder, op.cit.,p. 69.
5
6 Ibid.,p. 77.
Hahn, op. cit.p. 3.
1 Ibid .• pp. 17-18.
• Vedder, op. cit.. pp. 73-74; Hahn, op. cil.,pp. 8-17; Andersson, C. J., Lake
Ngami; or Explorations and Discoveries, during Four Years Wanderings in the
Wilds of South \Vestern Africa (2nd ed.), p. 198.
9 Hahn, op. cit., p10.
10Vedder. op. cil.,p. 72. COUNTER-MEMORJAL OF SOUTH AFRICA 323
of such authority, sometimes cruel and inhuman, on the part of some of
the chiefs concerned 1•
41. For purposes of administration, thé tribal territory was divided
into districts, each of which was placed under the jurisdiction of a
councillor. The districts again were subdivided into wards with a sub.
councillor in charge of each ward. The councillors did not belong ta a
specific clan or group within the people, but were appointed by the chief,
and he was not obliged to ask, or heed, their advice. The chief and the
councillors constituted the central tribal authority, which dealt with
ail civil and judicial matters affecting the people-a system which was
closèly connected with the system of land tenure in vogue amongst the
Ovambo 2•
The political system of the tribes which did not have chiefs, may be
illustrated by reference to the position of the Kuanyama. After the
death of their last chief in 1917, the councillors proceeded to exercise
the supreme authority over the tribe previously vested in the chief.
Succession to a councillor (or headman) is effected. by popular choice
of the people of the district concerned, although the matrilineal rule is
often followed 3.
IV. LANGUAGE
42. Each tribe has its own dialect, but there are so many fondamental
differences between them that some of them, at least, may more properly
be regarded as separate languages. They a1lbelong to the Bantu family
of languages.
Two languages, those of the Kuanyama and Ndonga tribes, at present
dominat~ the scene, This is due partly to their superior numbers, and
partly to mission activity in setting the languages to writing and pro
ducing publications in them. Missionaries began their activities among
the Ndonga at an earlier date than elsewhere in Ovamboland, and as
a result the Ndonga language has been further developed than Kuan
yama, or any other Ovambo language.
V. RELIGION
43. The traditional religion of the Ovambo tribes was a vague kind
of monotheism, and there were, in addition, many beliefs and practices
connected with spirits, both good and evil. Witchcraft was rife •. The
first attempt by missionaries to enter Ovamboland occurred in 1857,
when Dr. Hugo Hahn and the Rev. Rath, of the Rhenish Mission,
tried to establish contact with the Ndonga tribe. They were attacked, and
barely managed to escape death 5• In 1870 Finnish missionaries obtained
permission from the Ndonga tribe to establish a mission station in their
territory, but it was many years before similar permission could be
obtained from the other tribes 6•However, in 1903 they established a
1 Hahn, op. cit.pp. 8-9; Vedder, op. cil., pp73, r6r-163.
2 Hahn, op. cif.pp. r8-r9; Vedder, op. cit.p. 7z.
3 Bruwer. op.cil.,pp. 3~-33.
• Hahn, op. cit., pp2-8; Vedder, op. cit., pp74-77.
5 Vedder, op. cil., 269.
6 Palgt'ave'sReport, p. 49. SOUTH WEST AFRICA
mission station in the territory of the Ngandjera, and thereafter in the
territory of the Kuambi and Kualuthi (1908). Nkolonkati (1913) and
Mbalantu (1918). From about the turn of the century, the Rhenish
Jl,'lissialso operated in the arca.
VI. EcONOMY
44. The Ovambo peoples have always been both pastorahsts and
1
agriculturalists , and this brought about a more settled form of exist
ence than was the case with the purely pastoral peoples in other parts
of the Territory. This circumstance probably accounts for the fact that
the Ovambo peoples never penetrated into the southem sector of the
country, where agriculture under primitive conditions was virtually
impossible. Even today the southern belt of Ovamboland remains prac
tically uninhabited, since the people have concentrated in those areas
where there is a ready supply of water for agricultural purposes 2•
45. Owing to their settled form of existence, the Ovambo peoples
developed permanent house structures built of timber and thatch. Their
kraals were stockaded structures with many passages leading to the
sleeping and other quarters 3• Their cattle pens were generally attached
to the kraals, and their gardens were in the immediate vicinity 4•Whereas
wells used to be the normal source of water supply in the early days,
dams have now ?een made in many areas.
46. The material culture of the Ovambo peoples was very similar
to that of most Bantu peoples. They developed many crafts which
enabled them to provide for the ordinary necessities of life. Knowledge
as to the production of primitive iron work, copper ornaments, wood
utensils and ornameuts, dress and decorations was already developed
at the time of the coming of the White man 5•
47. The basic ecouomy of the Ovambo peoples was a subsistence
one based on agriculture and stock farming. The staple crop was finger
millet and sorghum, but cucurbits and legumes were also produced.
6
To some extent, surplus food was stored for use intimes of scarcity • The
gardens usually comprised some 12 to 20 acres of arable land. On account
of the flat nature of the country, the ~hallow soil and the possibility of
periodic inundation, mound cultivation was practised. \Vomen performed
the greatest part of the work as far as a family's agricultural activities
were concerned, including the preparation of the land, harvesting and
threshing 7•
48. In accordance with tradition and custom, land ownership was
vested in the chief or headman 8, who was entitled to grant, for remune
ration, life interests of a usufructuary nature to individual members of
the tribe in respect of specific pieces of land used for agricultural pur-
• Andersson, C. J., Lake Ngami (2nd ed.) pp. 202-203.
2Hahn, op. cil., pp33-35; Vedder, op. cit., p156.
3 Vedder, op. cU., p.69; Hahn, op. cil., pp.ro, 24.
• Andersson, op. cit., pp.201-202.
5 Hahn, op. cil., pp24, 35-36; Andersson, C. J.,op. cit., pp.204-205.
6 Andersson, op. cil .. p. 2oz.
7 Hahn, op.cil., pp.33-35; Vedder, op. cit., pp68-69.
A Hahn, op.cit., p. 18. COUNTER-MEMORIAL OF SOUTH AFRICA
poses 1• Non-agricultural land was reserved for grazing on a communal
basis. Similarly any one was allowed to use the produce of the bush, but
the cutting of fruit-bearing trees was prohibited since they were con
sidered tribal property. ·
49. Practically every Ovambo farnily possessed its own cattle and
goats, which were cared for by the man and hissons. Cattle, especially,
were highly prized, and not easily parted with, or slaughtered, save
during ceremonial feasts. A man's wealth was generaliy measured by
the size of his herd 2• Sheep do not thrive in ûvamboland, except in the
western parts, nor do horses which were introduced as beasts of burden
in more recent times 3•
50. The rules of inheritance arnong the Ovambo peoples followed
4
the matrilineaI nature of their society, a man's principal heir being the
eldest son of his eldest sister 5• A man could, dunng his lifetime, donate
his cattle to his own children, provided they were not lineage cattle.
Persona! belongings could also be disposed of during the owner's life
time. A woman possessed rights over the produce of her lands, and on
her death her persona! belongings went to her daughters. Land itself was
not heritable.
5r. Already during the German period, numbers of Ovambo were
employed in the Police Zone. The general practice was for Ovambo
men to work in the Police Zone for a period and then to return home.
This accorded with the wishes of the leaders of the various tribes, who
were jealously on guard against all factors which could lead to detribal
ization 6•
E. The Bushmen
J. COMPOSITIOX AND DISTRIBUTIO~ OF THE GROUP
52. The Bushmen are a short, relatively light-skinned people, and
forrn part of the Bush people who at one time roamed over many areas
throughout Southern Africa 7. They, together with the Hottentots 8,
belong to the Khoisan group of peoples of Southern Africa 9, and un
doubtedly represent some of the earliest inhabitants of this part of the
continent 10• Their name derives from their roaming existence in the
veld or bush. They were also collectively terrned Saan of Sankwa by
the Hottentot people. There are numerous indigenous names for the
various groups or bands of Bushmen 1t.
Schapera, the well-known expert on the races of Southern Africa,
described them as follows:
1 Vedder, op. cit., p72.
2 Andersson, op. cil., p. 199.
3 Hahn, op. cit., pp24-25, 33-35; Vedder, op. cil., pp.68-69.
• Hahn, op. cit.p. 8.
s Andersson, op. cit.pp. r99-200.
6 Bruwer, op. cit., pp2 r-22.
, Schapera, The Cambridre History of the British Empire, Vol. VIII, p. 23.
8 Vide para. 72, infra.
9 Schapera, op. cit.,p. 21.
10 Ibid., p. 22.
11 Vide Fourie, The Native Tribes of South West Ajrica (r928). p. 84. SOUTH WEST AFRICA
"The Bushmen are typically short in stature, averaging about
fi.ve feet, with slender limbs, small bands and feet, and poorly
developed bodies whose appearance is often marred by the protuber
ant stomachs and hollow backs of the men and the pendulous breasts
and fat buttocks and thighs ofthe women. The skin isyellowish brown
in colour and wrinkles very easily; the hair isshort, woolly and sparse,
and scattered on the scalp insmall 'peppercorn' tufts. The head issmall
and relatively broad; the face rectangular, with bulging forehead,
prominent cheekbones, nose extremely fiat, eyes wide apart, narrow
1
and often slightly oblique, and ears frequently lobeless ."
53. The Bushman population of South West Africa consists of three
main sections, viz., the Heikom, !Khung and Mbarakwengo. Their
distribution at the time of the assumption of the Mandate was, as far
as can be ascertained from more or less contemporary writers such as
Fourie 2, much the same as at present 3.For convenience, the present
position will be set out in this paragraph.
The Heikom Bushmen are scattered over a wide area in the southern
sector of the country, nowadays often on farms, as well as over the
areas surrounding the great Etosha Pan. Sorne of them have penetrated
as far north as Ovamboland, where they live in the territories of the
Ngandjera and Ndonga peoples 4.
The !Khung Bushmen also cover a vast area of the Territory in their
wanderings. Although many of them live in the southem part of the
Territory, they are to be found also in the eastern and north-eastem
regions, the main areas of concentration in the northern sector being the
Okavango area, the country between that area and the Police Zone, and
Ovamboland. ln Ovamboland they are confined to the eastem section of
the country, where there is only a small Bantu population. Below the
Okavango area they also occupy the wide stretches of the Omaheke, or
desert-like area, which are not inhabited by the Bantu. Where they live
in areas which are occupied by Bantu, Bushmen often serve them as
cattle-herds.
The Mbarakwengo are a small group. They differ from the Heikom
and the !Khung in that they are taller and of a darker complexion.
They are scattered among the Mbukushu Bantu of the Okavango, and
a few hundred of them also occupy a small area in the western Caprivi,
across the ûkavango River.
54- It is extremely difficult to obtain a reliable population figure in
respect of the Bushmen. Most of the earlier figures given appear to be
no more than estimates, and even today no accurate figure can be
obtained. The following are examples of earlier estimates:
5
South West Africa Administration 1921 3,931
Fourie 1928 2,500-3,500 6
South West Africa Administration 1946 ro,349 7
1 Schapera, op. cit.p. 20.
2 Fourie, op.cU., pp. 82-84.
3 Vide also Schapera, op. cit.. p. 23.
• Fourie, op. cit., 83.
5 U.G. 32-r922, p. r2.
6 Fourie, op.cit., p84.
7 U.G. 4g--r947, pp. 3-4. COUNTER-MEMORIAL OF SOUTH AFRICA 327
According to the 1960 population census, Bushman was the mother
tangue of n,762 persons, but there were probably a few thousand more
Bushmen whom it was not possible to enumerate by reason of their
nomadic existence in geographically isolated areas.
IL ÜRlGIN AND HISTORY
55. It is generally believed that the Bushmen represent the earliest
inhabitants of the present day South West Africa, that they originally
roamed over wide stretches of the Territory, and that they were pushed
into the more inaccessible regions of the country by other groups which
advanced into their areas of habitation. Nobody knows when they first
settied in the present-day South West Africa. Faurie states in this
respect:
"Of migration of the Bushmen from elsewhere no mention is made
in local native traditions. The Hottentots, Hereros and Ovambos
state that on their arriva! the Bushmen were found in occupation
and that the latter must have been living here ever since the creation
of man. The Bushmen likewise believe that their present tribal divi
sions and distribution have been in existence since the very beginning
of things when each tribe had its origin in a 'first big Bushman' and
a 'first big Bushwoman' of its own by whom wcre handed down to
their descendants the practices and customs still peculiar to and the
terri tory still occupied by their respective tribes 1."
56. Although the Bushmen led a roving life, each section, and each
band within a section, was expected to keep within its own domain
its own defined area. Poaching groups constituted a threat to existence,
and were treated as enemies. In time, as the more advanced Hottentot
and Herero pastoral nomads, and Bantu agriculturalists, moved into
their hunting fields, thereby threatening their very existence, life for
the Bushmen bccame onélong struggle for survival. They fared badly at
the bands of the more powerful Hottentot 2 ,Herero 3 and Bantu groups
by whom they were, over the years, hunted and killed as if they were
wild garne. Those who escaped death and servitude fled to inaccessible
or desolate parts of the country, there to continue the struggle for
4
survival against the encroaching forces of different cultures -forces
inimical to their way of life. As put by Dr. Vedder who lived and worked
as a missionary in South West Africa for many years, and made a
special study of its native peoples and history:
"From the earliest times they were despised, hated, and fi.ercely
persecuted by all other natives, and so the onlydwelling-placesleftto
them were inaccessible hiding-places in the mountains and just as
unapproachable hidden refuges in the trackless thorn bush of the
plains. Distrustful of every one who belonged to another tribe,
1 Fourie, op.r.il., 82.
2 Vide para. 73. infra.
3 Thus Andersson wrote in 1851 (Lake Ngami (2nd ed.), p. 211): " ... the
Damaras [Herero] themselves are always waging an exterminating war on the
bushmen. Indeed, they hunt them down, wherever met with, like wild beasts."
Vid~ also para.84, in/ra.
• Vedder, op. cit.p. 26. SOUTH WEST AFRICA
suspicious of the members of their own unless they belonged to their
own clan, they avoided ail contact with the outer world ... 1"
General Smuts formed much the same impression, after the First
World War, about the attitudes of other groups to the Bushmen. He
2
said that the South African occupation forces found "the roving Bush
men still regarded as little better than wild animals-human vermin
of the veld" 3•
Ill. SOCIAL AND POLITICAL ÜRGANIZATION
57. The traditional social and political organization of the Bushmen
was of a very simple nature. It centred around small groups, generally
termed bands, and consisting predominantly of kinsfolk 4. The size of
these bands varied considerably from group to group 5, and was often
dependent upon the availability or scarcity of food. Reported groupings
range from a few to a few hundred individuals. Lorna Marshall 6 refers
to a somewhat exceptional case among the !Khung. where 14 bands,
ranging from 8 ta 57 individuals in a band, formed a community of 353
people, composed as follows: married men (9 with 2 wives) 88; married
women 97; old widowers 3; old bachelors I ;old widows 24; young widows
2; young divorced women 2; unmarried boys 78; unmarried girls 58; a
total of 353.
The small community groups of the Bushmen were largely determined
by their environment and peculiar mode of life 7•During times of plenty
the size of the band was at its maximum, but when food became scarce,
bands broke up into several smaller groups, which reunited when the food
position improved again.
There were also a number of traditional social controls which tended
to keep down the size of the band. Firstly, in a nomadic way of life it
was impossible for a mother to attend to two or more small children
at the same time 8,and families accordingly te_ndedto be small 9.
Sorne groups buried an infant with its mother when the latter <lied
1 Vedder, op. cit.,p. 78.
1 U.N. Doc. A/C.4/41, in G.A ., O.N., Firsl Sess., Second Part, FourthComm., Part I,
Annex 13a, p. 242.
3 Vide also: Andersson, C. J., The Okavango River {1861). p. 145; Lake Nga,ni
(2nd ed.). pp. 210-211, 437-438; Alexander, J. E., An Expedition of Discovery Into
The Interior of Africa, Through the Hitherto Undescribed Countries of The Great
Namaquas, Boschmans, and Hill Damaras (1838), Vol. I,p. 295; Vol. JI, pp.116-117.
4 Schapera, The Cambridge History of the British Empire, Vol. VIII, p. 24;
Schapera, l., Governmen/ and Politics in Tribal Society (1956), p. 17.
~ Schapera, 1., op. cit., p. 9; Schapera, The Cambridge History of the British
Empfre, Vol. VIII, p. 24-
6Marshall, L., "Marriage Among !Kung Bushmen", in Ajrica, Vol. XXIX, No. 4
(1959), p. 336.
7 Schapera, The Cambridge History of the British Empire, Vol. VIII, p. 26.
1 Ibid.,p. 25.
9 Fou rie writes in this regard with rcference to the Bushmen of the Kalahari:
"Children are suckled until they are able to walk well. If a new child is born
while the last one is still on the breast it is buried alive in the nearest burrow
or in a hole made for the purpose by the old woman who conducted the labour.
When twins are born. one is invariably killed. lt is for these reasons that it
is rare to find families of five or more children in the Kalahari." (The Native
Tribes of South West Africa (r928), p. 94.) COUNTER-MEMORIAL OF SOUTH AFRICA
in childbirth. In addition, it was the custom to abandon the aged and
helpless when a band had to move elsewhere in search of food, especially
intimes of great scarcity.
The organization within the band functioned on the basis of age,
status and hunting success. Usually one of the elderly men was looked
upon as the leader, and there was a well-balanced relationship among
the various indjviduals of the band.
The social code of the Bushmen was simple, but, at the same time,
well-adapted to their circumstances. If there was plenty, every individual
in the band had plenty. Ifthere was scarcity, everybody felt it.
IV. LANGUAGE
58. The Bushmen have a language of their own, which is different
fonn Hottentot and Bantu, but shares with the former and some of
the latter (Zulu, Xhosa) the phonetic ieature of clicks. There are also a
number of Bushman dialccts. Sorne Bushmen speak Nama(Hottentot)
no doubt a reminder of the days when Bushmen were the slaves or
servants of the more powcrful Nama.
Few people other than Bushmen can speak these languages and com
munication between Bushmen and members of the other groups is, even
today, often a matter of great difficulty.
V. RELIGION
59. Fou rie says the following about Bushm an religion :
"Except among the groups which have long been in contact with
and largely influenced by other races belief in a supreme being
would appear not to exist. The partly disorgan1se<l :t=Ao-//ëinand
//Aikwe groups ofthe Gobabis district believe in a good being named
!Khutse or 'God' andabadbeingcalledGàua or 'Satan'. About the
nature, however, of these beings they have no idea nor are their lives
and activities influenced to any extent by them. People who die
a 'good death' are said to go to !Khutse and those dying a 'bad
death' to Gàua. The former have a good time and live in plenty; the
latter, on the other hand, oftcn suffer hunger and distress. Among the
primitive groups a deceased person is believed to move about in the
form of a ghost at night. Buchu (tsà) is accordingly sprinkled over
the grave to make the spirit of the departed happy so that it may
not return at night to molest others; further, water ispoured over or
left at the grave in order that the spirit may not interfere with the
rain, and the bow, quiver and arrows of the deceased placed at the
graveside to obviate the necessity of his ghost returning to look
for them. Every sphere of activity in life is influenced by some
superstition or other which, as a rule, finds expression in certain
avoidances or in ceremonial and other rites and practices 1.''
VI. ECONOMY
. 60. The Bushmen of early South West Africa were traditionally ahunting
·people who used to roam far and wide over the Territory m search of
1 Fourie,op.cit., 104.330 SOUTH WEST AFRICA
game and edible veld foods. The men were responsible for hunting, for
which purpose they used bows with poisoned arrows, and also, to a lesser
extent, snares and pitfalls. The Bushmen were also able to run down
game until it was exhausted, when it was killed with an assegaai or club.
The women looked after the gathering of plant foods 1•
The material culture of the Bushmen was a reflection of their nomadic
existence and simple economy.
The roaming Bushman bands erected shelters of grass, or branches,
which were adequate for their limited needs white the food in the vicinity
lasted. When they moved, these shelters were abandoned and new ones
erected elsewhere 2•The Mbarakwengo of the Caprivi, however, developed
a more permanent type of dwelling. They made grass mats which were
hung over poles to forma shelter, and when they moved to another spot,
these mats were taken with them.
Traditional Bushman attire was made of the skins of wild animais
which had been softened manually. The women usually wore a small
apron decorated with ostrich shell beads, and other parts of the body
were adomed with bead ornaments. The men wore a triangular piece of
hide drawn between the legs and tied round the waist 3•Karosses (blan
kets made of skins)-where possessed-kept out the cold during the
night. Otherwise, wannth was obtained from fires.
Household articles were of a simple nature, and were usually made
of wood or clay. Ostrich-egg shells served as containers. Snuff-boxes
(tortoise-shells), pipes and perfume holders (of tortoise-shell), formed
the main persona! belongings, other than the man's bows and poisoned
arrows and the woman's digging stick. The Bushmen never developed
any form of accumulation, and their economy made no provision for
the future.
In some regions frequented by the Bushmen, water is extremely
scarce during the dry seasons. Apart from springs and waterholes, the
Bushmen had to rely on their own storage tanks (ostrich-egg shells)
and water-rich plants, such as the tsamma (colocynthus citrullus), the
Gemsbok cucumber (colocynthus naudinianus) and juicy fruit, like the
so-called Bushman apples. For this reason bands carefully guarded their
springs and waterholes against intruders.
F. The Dama or Bergdama
l. COMPOSITION AND DISTRIBUTION OF THE GROUP
6r. Physically the Dama are a short-statured, black-skinned negroid
type, and, except where hybridized, quite distinct from the light-skinned
Bushmen and Hottentots, on the one hand, and, on the other hand, the
Herero and Ovambo negroids, who belong to the Bantu branch.
The Dama are also known as the Bergdama, Bergdamara or Klip
kaffers, and are given various names, some with an uncomplimentarr
meaning, in certain of the Native languages of South West Africa .
They call themselves !Nu-Khoin, i.e., "black people".
1 Fourie, op. cit., pp.98-103; Schapera, The Cambridge History of the British.
Empire, Vol. VIU, pp. 25-26. .
2 Schapera, op. cit., p. 26.
3 Vide para. 65. infra. COUNTER·MEMORIAL OF SOUTH AFRICA 33!
Apparently the Hottentots did not at first appreciate that the Dama
and the Herero were entirely different ethnie groups 1• Consequently
the Herero were in early times often called Damara of the Plains, or
Cattle Damara (or sometimes just Damara), whereas the Dama were
referred to as Damara of the Hills or Bergdamara ("Berg" meaning
mountain in both German and Dutch) 2•
62. Very little is known about the earlier distribution and numbers
-Of the Dama. When first encountered by Europeans in r791, they lived
in small groups in the mountainous areas of the Auas, Erongo, Amatja,
Brandberg, Waterberg and Otavi highlands. Their fugitive existence 3,
however, took them over a large area in the southem sector of the
country, although the major group has always remained in the central
area of the southern sector of the country.
Vedder 4 listsrr groups of Dama, and gives their main habitat as the
areas from Rehoboth northwards to the Erongo mountains, the Swakop
River, Outjo, Waterberg and further north. In later times a few pene.
trated as far north as Zessfontein on the southem boundary of the
Kaokoveld, and on the other hand, many are now to be found in the
Southern districts of the Police Zone.
63. Sorne earlier figures of the Dama population of the Territory
are as follows:
5
Irle 1840 20,000
Irle 1874 20,000 6
South West Africa Administration 1921 20,883 7
South West Africa Administration 1939 25,308 8
It is difficult to say to what extent these figures are reliable. If Irle's
estimates for the years 1840 and 1874 are in any way reliable, it would
mean that the Dama population showed practically no increase up to
1921. If so, it may be an indication of the poor living conditions of the
Dama in those early years. It mùst be pointed out, however, that a
large number of Dama perished during the incessant Herero-Nama
clashes and also in the Herero and Nama uprisings during 1903.1907 9.
On the figures of the 1960 census the Dama population, calculated by
officials of the South West Africa Administration as a percentage of
the total Nama-speaking population, amounted to 44,353.
IJ. ÜRIGIN AND HISTORY
64. Very little is known of the origin or early history of the Dama.
Dr. Vedder believes that they may well have been the first inhabitants
1 Vedder, H., "The Berg Damara", in The Native Tribes of South West Africa
(t928), p.39.
2 Vedder, op. cit., p60.
3 Vide para. 65, infra.
4 Vedder, op, cit., p. 42.
5
Irle, IDie Herero: Ein Beitrag zur Landes· Volks. und Missionskunde (1906),
p.6149.
Ibid., p. 52.
7 U.G. 32-1922, p. 12.
8 U.G. 30-1940, p. 213.
9 Vide Chap. III, para. 86, infra.332 SOUTH WEST AFRICA
of South West Africa 1, but, he says: "Impenetrable darkness lies over
the origin and descent of the mysterious race of the Damas 2". They
were first encountered by Europeans in 1791, when one Pieter Brand
3
made a journey into what is now South West Africa •
Many theories have been advanced as to their possible origin. One
theory is that they entered the present South West Africa as serfs of
the Nama (or Hottentot) people, and the mere fact that the Dama
speak Nama proves that they must have had long affiliations with the
Nama. Dr. Vedder, however, states in this regard:
"The general view is that when the Hottentots arrived in South
West Africa, they found the Berg Damaras as the aboriginal in
habitants, subjected them and forced them to adopt their lan
guage 4."
This view was held also by the Rev. Hugo Hahn, a missionary who
lived amongst the Dama for over 30 years. He wrote in 1873 that
the Dama inhabited South West Africa long before the arrival of the
Hottentots and-
"... when the invasion of the Hereros took place, about one hundred
and fifty or two hundred years aga, they were still to a great extent
the owners of the mountainous parts of North Great Namaqua
Iand, and the undisputed masters of Hereroland, living in large
powerful tribes 5".
65. According to ail the available evidence, the position of the Dama
among the other non-White groups in early times was not enviable 6•
As long ago as 1791, Pieter Brand referrecl to above, stated that they
possessed neither sheep nor cattle, that their food. consisted of roots,
bulbs, berries and wilcl fruits, and that "thev sometimes make useful
slaves to the Namas" 1. "
To escape persecution, many of the Dama sought refuge in the moun
tainous parts of the country: hence also the names Bergdama and
1 Vedder, The Native Tribes of South West Africa (r928), pp. 40-41; Vedder, op. cil.,
p. 107.
2 Vedder, op. cit.,p. rn7.
3 Vide parn. 96, infra.
~ Vedder, The Native Tribes of South West Africa (1928), p. 4r.
5 Palgrave's Report, p. 5r; vide also the view of Sir Francis Galton, in Palgrave's
Report, p. 45.
6 Vide, e.g., Alexander, op. cil.Vol. II,p. 133; Vedder, The Native Tribes ofSouth
West Africa (1928), p. 39; Vedder, op. cit.,pp. 62, 67, 119, 175; Andersson, C. J.,
Lake Ngami (::md ed.), p. 114; Schinz, H., Deutsch-Südwest-Afrika: Forschungsreisen
durch die deutschen Schutzgebiete Gross-Nama- und Hereroland, nach dem
Kunene, dem Ngami-See und der Ka!ayari, 1884-1887, PP: r23-r24; Pa!grave's
Report, pp. 45, 51-52, l'vlanning to Palgrave, 22nd October, 1879, N.A. 287 [The
"N.A." cited in this footnote, and in later footnotes,is an abbreviation for" Archive
of the Secretary of Native Affairs, Cape Colony". The correspondence and papers
in the N.A. Series are unpublished documents in the custody of the Cape Archives
Depot, Cape Town, which falls under the aegis of the South African Departrnent
of Education, Arts and Science. Together with Quel/en (vide Chap. III, p. 65,
footnote 3, infra), they constitute a valuable source of information on the early
history of South \Vest Africa]: G.A., O.R., Si:rth Se.is.,Fourth Comm., 244th
Meeting, 11 Jan. 1952, para. 9, p. 290; Schapera, The Cambridge History of the
British Empire, Vol. VIIJ, p. 39.
7 Vedder, op. cit., p. 35. COUNTER-MEMORIAL OF SOUTH AFRICA
333
Klipkaffer. ("Klip" in Dutch or Afrikaans means "stone" or "rock".)
Vedder writes in this regard:
"It was hardly from choice or predilection that they lived in the
mountains. As most of them possessed goats, settlement in the Iow
lands would have suited their purposes better. Since, however, they
were violently persecuted in the lowlands, their only protection
and security lay in the mountain fastnesses. Wherever they found
them the Hereros killed thcm with their Kieries, and at the best
of times cast their young men into perpetual slavery, as herds and
menials. The Hottentots exterminated complete sibs ... They
seemed to regard a free Damara as a reproach against the Hottentot
race. They looked upon the Berg Damaras as runaway slaves and
subjected to slavery every serviceable man ."
Elsewhere Vedder ,vrites:
"As already mentioned the Hottentots and Hereros in olden
times regarded the Berg Damaras living within their reach as their
rightful servants. The Berg Damaras who lived free in the moun
tains were a source of annoyance to them. The Hottentots regarded
them as incorrigible stock thieves 2."
Various names given to the Dama by other indigenous groups show
in what contempt they were apparently held by such groups. The
Dama, as stated before, called themselves !Nu-Khoin, or black.people 3•
The Nama, however, called thcm Chou-daman, whîch can be translated
as dirty blacks, choub being the ordure of men and birds, and daman
meaning "black people". The name has also been translated as Dung
Dama, or Dirty-Dama ~.The Hcrero called them Ovazorotua, trans
Jated by Vedder as "black bondsmen" or "black slaves" 5•
On being asked in 1837 by the British explorer, Sir James Alexander,
about their relations with the Herero, a Bergdama chief replied as
follows: "... they are our enemies; they are black like ourselves; but
they speak a different Ianguage; ... 6"
· Only with the coming of the White man was the Damas' position
improved. They were only finally freed from oppression upon the defeat
of the Nama and Herero in 1904-1907 7•
III. SOCIAL AND POLITICAL ÜRGANIZATION
66. In olden times, the Damas' "hunting and collecting" economy
compelled them to live in small groups, usually consisting only of
families 8, and Dama social and political Iife therefore came to be
1
Vedder, The Native Tribes o/ South West Africa (1928), p. 39.
2 Ibid., pp. 42-43. Vide also Schinz, &p.cit., p.124.
3 Vedder, The Native Tribes of South West Africa (1928), p. 40.
• lbid., pp. 39-40. Vide also Alexander, op. cit., Vol. IIp. 136.
5 Vedder, The Native Tribes of South West Africa (r928), p. 40.
6 Alexander, op. cit., Vol. Il, p. 133. Vide also 1\!anning to Pa/grave, 22nd Octoher,
r879, N.A. 287.
1 Vide Chap. III, para. 86, infra and also Vedder, The Native Tribes of South West
A/rica (1928), pp. 43-44.
8 Vedder states "There is no place in a Berg Darnara village for those who do not
belong to the family sib". (The Native Tribes of South West Africa (r928), p. 48.) 334 SOUTH WEST AFRICA
organized on the basis of individual kin groups 1. Polygamy was quite
common, men with five or more wives being found "not seldom" ac
cording to Vedder 2• Each family group functioned as an independent
unit, and within each unit authority was exercised by the family
eiders, who were also the possessors of the holy fire 3• Social and political
organization on a wider basis only came into being with the establish
ment of the Dama Reserve in the Okombahe area 4•
The Dama also never deYeloped any real judicial system or judicial
institution. Life was controlled, and justice was administered, by the
family eiders who-
"... consult at the holy fire conceming everything whlch may con
tribute to the welfare of the village and discuss all measures which
have to be taken to prevent disasters or to deal out punishment 5".
The reason for the Damas' failure to evolve anything like a real legal
system no doubt lies in their early unsettled and servile existence.
Vedder says in this regard :
"When I commenced, two decades ago, to enquire as to the laws
of the Berg Damaras, my questions were not understood even by
intelligent Berg Damaras who were well versed in the lore of their
people. 'An object, such as a Berg Damara has not anything likea
Jaw' 6•1
According to Vedder-
"The only rules which may be regarded as having the character of
law are those regulating inheritance. Small as the persona! posses
sions may be, there are nevertheless fixed rules according to which
they pass from one to another. The rule prescribes that the daughter
may inherit from the mother but never from the father, and the
son from the father but never from the mother 7."
67. In 1870, on the urgent representations of missionaries; a tract of
land was granted to a number ofBergdama at Okombahe in the Omaruru
district by the Herero chlef at Omaruru, who nevertheless still considered
them his subjects. In 1895 the Hereros agreed to cede thls area to the
German authorities for the use of the Bergdama 8•
In the Okombahe· area, one Cornelius Goraseb succeeded in devel
oping some form of central organization amongst the Dama who were
resident there. As headman with the assistance of a Council of Five
Eiders he kept the Dama together during the wars of 1880 to 1892
between the Herero and the Nama 9•
After the Herero \Var of 1904 the Bergdamas, as a reward for assist--
1 Vedder, op. cit., pp4:2, 48;Schapera, op. cil., pp.9, 17.
2 Vedder, The Native T7ibes of South W1tst Africa (r9:28),p. 55; Vedder, Die·
Bergdama, Part I (1923),p. 39.
3 Vedder, The Native TYibes of South Wfst Africa (1928), pp. 48, 68-70; Vedder,.
South West Africain Ea7ly Times, trans. and ed. by C. G. Hall (1938),pp. 61-62.
• Vide para. 67 and Chap. III, paras. 73 and 86, in/7a.
5 Vedder, The Native Tribes of South West A/rica (1928), p. 72.
6
7 Ibid., pp.70-71.
8 Ibid., p.7z.
Hailey. op. cit., pp. 34-35; Palgrave's Reporl, p. 51; Vedder, The Native Tribas,
of South West Africa (i928), pp. 43-44.
9 As to which vide Chap. III, paras. 39-47, 52-56, 64-69. COUNTER-MEMORIAL OF SOUTH AFRICA 335
ance given to the Germans, were confirmed in the occupation of the
Okombahe area, which was constituted a Bergdama reserve 1•
IV. LANGUAGE
68. Nothing is known of the original language of the Bergdama. The
language they speak is Nama, presumably adopted from the Hotten
tots who enslaved them in remote times 2• Stow says in this regard:
"Thus, whilst they possess the physical characteristics of the
Bantu nations, and are as a rule even blacker than the Ovaherero
and although they are as different in colour and stature from the
Hottentots as it is possible for two races to be, still we find the
remarkable fact that one language is common to both peoples. The
territory which the Narnaqua (Hottentots) inhabit isentirely separate
from that of the Berg-Damara, still none the less is the language of
both nations the same . . . Here then we find in this one race
distinctive features which characterise the other three, still, not
withstanding these separate points of similarity, the Berg-Damara
are a nation by themselves, and apparently quite distinct from
3
the Ovaherero, the Namaqua, and the Bushmen .''
Not only their language disappeared, but also most of their traditional
c:ulture. As Kôhler says:
"In the obviously long period of their serfdom, the dependent
to have given up many of their customs in the
Bergdama appear
same way as they gave up their own language and adopted Nama.
What the independent Bergdama hadpreserved of their traditional
culture seemed to have little strength to survive and began to
fall into decay by the end of the rgth century 4."
V. RELIGION
69. The old religion of the Dama was a vague monotheism 5• Many
Dama are today converts to Christianity (mission work am.ong them
having commenced in 1842) 0,but superstition and witchcraft still play
a major part in their lives 5•
VI. EcoNOMY
70. The Bergdama's economy in olden times was probably little less
primitive than that of the Bushmen 7• They could not maintain them-
1Ha.iley, op. cil., p. 35; Vedder, The Native Tribes of South West Africa (1928),
pp. 43-44.
2 Vedder, The Native Tribes of South West Africa (1928), pp. 41-42.
3 Stow, G. W., The Native Races of South Africa (1905),p. 257.
+ Kôhler, O.• "The Stage of Acculturation in South West Africa", in Sociologus,
Vol. 6, No. 2 (1956), p. 138; Vedder, The Native Tribes o/ South West .4./rica (1928),
p.6I.
5 Vide Vedder, The Native Tribes of South West Africa (1928),pp. 61-70; Vedder,
op. cit., pp63-67.
6 Hailey, op. cit., p. 34.
7 Vedder, The Native Tribes of Soulh West Africa (1928),p. 42.336 SOUTH WEST AFRICA
selves against the Hottentots and Herero who entered South West
Africa after them and, as noted above, became the servants and slaves
of both these more powerful groups • As Hailey says:
"... they had to yield to the growing pressure from the Hereros,
and all their later history shows thern as the bondsrnen, or at all
events as the unpaid servants of others, holding nowhere any
territory of their own, possessing only such stock as their superiors
allowed them, and adapting their costume and their customs to
those of the people whom they served 2".
The economy of the Dama was that of hunters and foodgatherers.
Vedder s~ates in this regard:
"The Berg Damaras of the veld, i.e., those who are still untouched
by European influence and live according to the manner of their
fathers, subsist on the wild fruits of the veld and the spoils of the
3
chase ."
As stated before, many familles were at an early stage forced into
the service of Nama and Herero, and in later years rnany took up em
ployment with Europeans, which gave them a more settled form of
existence. In the Okornbahe area they tumed to stock farming, and
they soon possessed substantial herds.
The Dama of old had no concept of land ownership in either the
individual or communal sense. As Vedder says:
"Not even the tribal area is regarded as the property of the tribe.
AUthat is claimed is freedom of hunting and of gathering of vddkos
with which to supply daily wants ~."
In the circumstances it is clear why land rights could play no part in
the rules as to inheritance. In this regard it may be noted, as a point of
interest, that a Bergdama house is, by tradition, the property of the
wife, and not of the husband 5• •
6
Clothing was of a very simple nature, consisting of skins •Possessions
were few and primitive. Bergdama dwellings were made of branches,
twigs and grass 7•
G. The Hottentots or Nama
I. !NTRODUCTORY
JI. Reference has been made to the interaction and conflicts between
the Hottentots and other groups during the nineteenth century 8• The
present section will therefore be devoted to a discussion of the devel
opment of the Hottentots up to the end of the eighteenth century. Any
changes or further developrnents of importance occurring during the
nineteenth century will be dealt with in their historical context in Chap-
1 Vedder, op. cil.,pp. 39·43·
2 Hailey, op. cit., p33.
3 Vedder, The Native Tribes of South Africa (1928), p. 59.
{ Ibid .• p. 71.
' Ibid., pp. 48-49.
6
7 Ibid., p. 57.
8 Ibid., p. 48.
Vide para. 2, supra. COUNTER-MEMORIAL OF SOUTH AFRICA '337
ter III, infra. In addition, the position of the Hottentots immediately
prior to the assumption of the Mandate, will be summarized in Chapter
III, infra 1•
Il. COMPOSITION, DISTRIBUTION AND EARLY HISTORY
72. The Hottentots are a short, yellowish brown-skinned people, with
dark eyes and short, woolly and sparse hair. They have prominent
cheekbones, small receding chins, and fiat noses. Their general bodily
build and colour rescmble those of the Bushmen 2, although the Hotten
tots are taller, with longer, narrower and higher heads, and more pointed
and projecting faces 3•
Schapera states:
"There is little doubt that they are of the same original stock
as the Bushmen, but have obviously been affected by the incorpora
tion of alien blood. lt is now generally held that they owe their origin
to the mixture of Bushmen with early invading peoples of Hamitic
stock from whom they also acquired certain distinctive linguistic
and cultural features. Consequently, although Bushmen and Hotten
tots belong to the same great ethnie division, for which the name
'Khoisan' has ... been coined ... thcy have become sufficiently
differentiated to be regarded as two separate groups '."
73. It is believed that the Hottentots lived originally somewhere in
the region of the Great Lakes of East Africa. Presumably as a result of
pressure from the north by the Bantu, they gradually moved south-west
across central Africa until they reached the Atlantic. Then they turned
south, crossing the Kunene into what is now South West Africa. The
migration continued down the west coast across the Orange River 5and
into the present Cape Province right clown to the Cape Peninsula.
Thereafter they moved eastwards along the coast until their outposts
reached the Umtamvuna River on the south coast of Natal 6•
At different stages on their route south of the Kunene, sections of the
people remained behind, each of which grew into a separate tribe. Thus
in South West Africa, a number of different Hottentot tribes inhabited
parts of the Territory prior to the advent of the Hereros 7• They are
often referred to as Nama, aftcr their language. Similarly, Hottentot
tribes were found by the early European settlers in various parts along
8
the coastal stretches of what is now the Cape Province •
As the Hottentots advanced, the Bushmen were generally driven from
the fertile plains to the mountain fastnesses of the interior, and, on the
1 Vide Chap. III, para. 85, infra.
2 Vide para. 52. supra.
3 Vedder, H., "The Nama", in The Native Tribes of Soulh W~st Africa (1928),
pp4 109-1!2; Vedder, op. cit., pp.51-52, 119-123.
Schapera, The Cambridge Hislory of the British Empire, Vol. VIII, pp. 20-21,
~ Originally known by its Nama name "Garib River".
6 Schapera, The Cambridg~ History of the British Empire, Vol. Vl II,pp. 28-29;
Ve<lder, The Native Tribes of South West Africa (1928), pp. u2-u8.
7 Vedder, The Native Tribes of South West Africa (1928), pp. 114-r 15.
8 Ibid., pp. 113-114; Schapera, The Cambridge History of the British Empire, Vol.
VIII, p. 28.338 SOUTH WEST AFRlCA
1
whole, relations between the two groups remained unfriendly or hostile •
As noted above, the treatment meted out to the Bergdama was no
better 2•
74. The early population estimates for the Hottentots cannot be re
garded as accurate, but in order to give a broad indication of their
numbers, the following figures may be referred to:
3
Palgrave 1876 16,850
German Administration 1913 14,591 4
South West Africa Administration 1921 21,000 5
South West Africa Administration 1939 20,733 6
1960 Census 1960 34,806 7
III. LANGUAGE
75. Ail the various Hottentot tribes spoke one of four closely re
lated languages, of which Nama, spoken by the tribes in South West
Africa, was one 8• These languages have no clear affinities with other
languages of the Continent, except structural ones with distant groups.
The peculiar feature of click sounds is shared with Bushman and some
southern Bantu languages 9•
IV. EcoNOMY
76. The Hottentots were nomadic pastoralists. They had no agricul
ture, but depended on their herds-cattle, fat-tailed sheep and goats
and, to a certain extent, also on hunting and collecting 10•Each tribe
had what it regarded as its own territory in which to graze its herds,
and in which no strangers were allowed without special permission 11•
As pastoral nomads they had no opportunity of building permanent
structures or of accumulating any material things beyond such arms,
tools and utensils as they could carry with them on their wanderings 12•
The tribal country was communal property, and a system of individ
ual ownership of land did not exist 13• The varions groups laid special
1
Vide in general: Schapera. The Cambridge History of the British Empire. Vol.
VITI, p. 28; Faurie. The Native Tribes of South West Africa (1928), pp. 82-84 and
Vedder, op. cil., p. 124.
2 Vide para. 65, supra.
3 Palgrave's Report, p. 94.
+ Die deutschen Scl1utzgebiete in Afrika und der Südsee I9ra/r9I3,-Amtliche
Jahresberichte, Herausgegeben vom Reichs-Kolonialamt (1914}, Statistischer Teil,
p. 46.
5 U.G. 32-1922, p. 12.
6 U.G. 30--1940, p. 213.
7 Calculated by officiais of the South \Vest Africa Administration as a percentage
of the Nama-spcaking population.
8 Schapera, The Cambridge Hisltwy of the British Empire, Vol. VIII, pp. 28-29.
11
0 Veddcr, op. cil.pp. 56-57, rr9-rz1.
• Ibid., pp. 51, 53; Schapera, The Cambridge Hislory of thB British Empire, Vol.
VIII, pp. 30-31.
11 Schapera, The Cambridge Hiîtory of /liBritish Empire, Vol. VIII, pp. 30-31.
12 Vedder, op. cit., pp52-54, 127. · '
13 Vedder, The Native Tribes of South West A/rica (r928), p. 144; Vedder, of>.cit.,
p. 54. COUNTER-MEMORIAL OF SOUTH AFRICA 339
stress on their sole rights in regard to certain springs and waterholes.
To the Hottentots, tribal lands were closely connected with their an
cestors, a concept which stimulated a ritual procedure, connected with
water, when certain areas were visited 1•
Although tribal land was regarded as common property whereon ail
members of the group concerned could move freely, water their cattle
and partake of the fruit of the veld, the idea of individual ownership was
in other respects not unknown 2•Individuals and families could acquire
movable property, such as stock, and an individual who had dug a
waterhole had a prior right to its water. Among the Topnaars (a tribe
in South West Africa) a person or family could have private rights
over certain nara bushes, which are peculiar to the area in which they
lived.
Inheritance followed the male line. The eldest son was the principal
heir, and it was his responsibility to guard over the general interests of
the family. The widow. and ail the other children, were also entitled to
a share of the estate 3•
V. SOCIAL AND POLITICAL ÔRGANIZATION
77. The social organization of the Nama, as described by Hoernlé
in 1925 ", functioned within three well-defined units, namely the family,
the clan and the tribe. The importance of kinship was evidenced by the
fact that near kin tended to congregate on the same wer/'·
Numbers of kinship groups were organized into a clan , i.e., people
who claimed a common descent in the male line from an original pro
genitor. Members of a clan tended to live together in the same area, and
the clan was in fact the strongest cohesive unit attained by the Nama.
Very often individual clans broke away from the greater body, the
tribe, to form an independent unit, thus actually forming a new tribe 7•
78. The tribe consisted of a number of clans and fonned the largest
unit in Nama society. The true Nama distinguished eight units of this
nature, and the Orlams Nama five, each with its own name 8• Within
each tribe there was a senior clan which provided the tribal chief, and
within each clan a senior family which provided the clan head, both
offices being hereditary from father to son. The central authority in
1Hoernlé, R.F. A. (A. \V.), "The Expression of the Social Value of Vvater among
the Nama of South \Vcst Africa", in The South African Journal of Science, Vol. XX
(1923). pp. 514•526.
2 Vedder, The Native Tribes ofSouth West Africa (1928), p. 144; Vedder, op. cit.,
)), 54. ·
3 Vedder, The Native Tribes of South West Ajrica (1928), p. 145.
4 Hoernlé, A. \V., "The Social Organization of the N'ama Hottentots of South
\Vest Africa", in American Anlhropotogist, New Series, Vol. 27 (1925) [reprinted by
Kraus Reprint Corporation, New York, 1962], pp. I·24.
' Piece of land on which dwellings were erected.
6 Schapera, op. r.it., 30.
7 Vedder, op. cit.,pp. 126.131; Schapera, The Cambridge History of the British
Empire, Vol. VIII, pp. 29.30,
8 Vedder, The Na/ive Tribes of South West Africa (1928), pp. II4-II8; Vcdder.
(,P.ci!.p. 128. On the distinctionbetween true Nama and Orlam, vide para, 79, infra. SOUTH WEST AFRICA
each unit consisted of its chief, or headrnan, together with a body of
councillors, composed of leading elders within the group 1•
The political authority also acted as the body which administered
justice. Each group had its body of customary laws, and disputes were
usually resolved by local councils. Appeals were heard by the central,
or tribal, authority. In important trials the tribal councillors acted as
judges 2•
79. During the eighteenth century, a number of Hottentot tribes
moved north out of the Cape Colony (which was until 1795 a posses
sion of the Dutch East India Company) in the direction of South West
Africa. These tribes, who are generally called the Orlam Nama, found
it impossible to live their former nomadic pastoral lives in the more
settled areas of the Cape, and in many cases their numbers were in
creased by fugitives from justice. During the first part of the nineteenth
3
century, some of the Orlam Nama tribes settled in South West Africa ,
whence their ancestors had corne generations back. The Orlam Nama
tribes showed many signs of European influence in their organization
and customs 4• Thus their chiefs were called by the title of kaptein, ·
and the headmen became a definite body of councillors to whom the
terrn raad was applied. The raad was the governing body, and it con
stituted also the judicial tribunal both for criminal and civil purposes.
In addition certain officiais on the European pattern were appointed,
such as the sub-chief (onderkaptein), magis trate (magistraat), the
chief field cornet (hoo/dveldkornet), and later among the Christian
groups, the eiders (ouderlinge). There was a growing tendency under
miss10nary influence to rcduce their constitutions to writing. Sorne of
the Orlam Nama had also adopted the Dutch language 5•
80. By the end of the eighteenth century, six of the original Nama
tribes in South West Africa were joined in a loose alliance under the
leadership of one of them, called the Red .Nation 6• According to
7
Vedder , this alliance was originally formed as a direct rcsult of trouble
with the Bushmen and Bergdama.
H. The Herero
I. COMPOSITION, DISTRIBUTION AND EARLY HISTORY
Sr. The Herero population of South West Africa is composed of
8
various sections, known as Herero, Mbanderu, Tjimba and Himba •
ln the course of this survey, ail references to the "Herero", should,
except where the text or contcxt indicates otherwise, be taken to include
1Vedder, The Native Tribes of South West Africa (1928), pp. 142-145; Schapera,
The Cambridge History of the British Empire, Vol. VIII, p. 30.
2 Vedder, The Native Tribes of South West Africa (1928). pp. 142-145.
3 Ibid., p. 116.
~ Ibid., pp. II5-118.
s Hailey, op. cit.p. 31.
6 Vedder, The Native Tribes of South West Africa (1928), pp. I14-115.
7 Vedder, op. cit., p128.
8 Vedder, H., "The Herero", inThe Native Tribes of South West Africa (1928),
p. 155; van Warmelo, N. J., Notes on the Kaokove/d (South West Africa) and ils
People, Ethnological Publications, No. 26 (1951), pp. 9-12. COUNTER-MEMORIAL OF SOUTH AFRJCA
all the various sections, and, as in the case of the Hottentots 1, the
present discussion will be conftned to developments up to roughly the
end of the eighteenth century, leaving subsequent events for future
treatment 2•
The Herero belong to the southern group of Bantu peoples 3• They
have negro-type crinkly hair, chocolate brown to dark-brown skin
colour, and, for the most part, a tall and slender build (
The following population figures give some indication of their num
bers:
Irle 90,000 (Herero 70,000,
5
Mbanderu 20,000)
Palgrave 84,000 (Herero 71,000,
Mbanderu 13,000) 6
German Administration 21,699 7 .
Vedder 33,000 (Herero 25,000,
Mbanderu 3,000,
Tjimba 5,000) 8
1960 Census 1960 44,580 (Total of Herero,
Mbanderu, Himba and
Tjimba) 9
82. According to Herero tradition, their forebears originally lived
in the "Jand of fountains", west of Lake Tanganyika, whence they
emigrated to the south 10•It is believed that this southward movement
began in the sixteenth or seventeenth century, and that the Herero
reached the upper Zambesi by about the middle of the eighteenth
century. From there, it is believed, they moved westwards until they
reached the sea, and fhen downwards into the Kaokoveld 1•Sornewriters
are of the opinion that they entered the Kaokoveld from the direction
of Bechuanaland, where they had hved for some time unti1 they were
defeated by the Bechuanas 12• Precisely when they entered the Kaokoveld
is not known, nor is it known for how long they remained there before the
main body of them later moved southwards. In any event, it is known
that the Mbanderu section were living somewhere east of Okahandja and
north of Gobabis by about the middle of the eighteenth century, and
that the Herero, properly so-called, had not left the Kaokoveld by about
' Vide para. 7r, supra.
2 In Chap. lll, infra.
3 Schapera, The Cambridge History of the British Empire, Vol. VIII, p. 36.
• Vedder, op. cit., p45; U.G. 41- 1926. para. 48, p. 12.
5 1rie, op.cit., p52.
6 Pa!grave's Report, p. 53.
7 Die deu/schen ·Schutzgebiete in A (Yika und der Südsee, 19r2J1913, Statistischer
Teil, p. 46.
• Vedder. The Native Tribes o.fSouth West Afrîca (1928), p. 156.
9 1960 Census (unpublished).
10 Vedder, op. cil.,p. 134, Palgrave's Report, p. 14, U.G. 41-1926, para. 47, pp.
J:1-1::.
11 Schapera, The Cambridge History of the British Empfre, Vol. VIII, p. 39;
Paltrave·s Report, p. 45; Vedder, Tl1e Native Tribes of South West A/rica (r9:i8),
p. 156.
12
Vide Vedder, op. cil., pp. 133-135.342 SOUTH WEST AFRlCA
I790 1. The Himba and Tjimba sections remained behind in the Kaoko
veld when the main body of immigrants moved south 2•
83. The Herero were still in the Kaokoveld when they gave an indi
cation of what their future relations with other groups in the Territory
were going to be. Vedder says in this regard:
"As soon as they became prosperous they became arrogant. They
felt that they were strong enough to try a fall with the Ovambos who
lived to the east of them. A raid was made into Ovamboland to get
Ovambo cattle. But the Ovambos were stronger than the Hereros,
for the separate tribes had chiefs whom all the people obeyedto a man
3
while the Hereros did not have a common commander or leader ."
84. Thefr procedure in occupying the new areas south of the Kaoko
veld was described as follows by Andersson, the Swedish explorer and
scientist ~, who lived among the Herero for many years and assisted
them in their wars against the Hottentots 5:
"... they [i.e., the Herero] invaded the country, then inhabited by
bushmen and Hill-Damaras, the last being in all probability the
aborigines. Not having a warlike disposition, the Hill-Damaras were
easily subdued, and those who were not killed were made captives.
The few that escaped took refuge among the mountains, or other
inhospitable and inaccessible regions, where they are still found
6
dragging on a most miserable and degraded existence ."
And, in regard to the relations between the Bushmen and the Herero,
Andersson said:
''... both parties were in the habit ofbutchering each other indiscrim
inately (men, women, and children) whenever an opportunity
occurred for gratifying their mutual hatred 7".
II. SocIAL AND POLITICAL ÜRGANIZATION
85. The basic determinants of traditional Herero social organization
are totally different from those of any of the other indigenous groups.
They are based on a system of double descent, for an individual belongs
to two social entities, namely the oruzo (plural otuzo) of bis father
and the eanda (plural omaanda) of bis mother 8• "Thus the Herero is a
member of two groups; ... Both these groups have their ordinances
andlaws 9."
The oruzo, membership of which is inherited through the father, is
predominantly a religions concept, centring around the ancestor cult
and the sacred fire. There are about 20 such otuzo, each with its own
name. People belonging to the same oruzo tend to live together, the sacred
1 Andersson, C. J.,Lake Ngami (2nd ed.) pp. '..?I8-219Palgrave's Report, p. 45.
2 Van Warmelo, op. cit., p.ro.
3 Vedder, op. cit., pp136, 140.
• Andersson, C. J.,Notes of Travel in South A/rica. (1875), pp. 91-92, 331-338.
5 Vide Chap. III, paras. 22 and 24, infra; Andersson, C. J.,Notes of Travel in
South A/rica (187.5),pp. 64-r25.
6 Andersson, C. J., Lake Ngami (2nd ed.), pp. 218-219; videalso Vedder, op. cit.,
pp, 138, 141.
1 Andersson. C. J.,The Okavango River (1861), p. 145.
8 Vedder, The Native Tribes of South West Ajrica (1928), p. 185.
9 Ibid.,p. 186. COUNTER-MEMORIAL OF SOUTH AFRICA 343
fire being the centre of the oruzo-community. The oruzo, however, also
bas a practical significance in the sense that it has its own property,
which is inherited only within the oruzo, and that it is guided by laws and
traditions which originated with the ancestors 1•
The eanda, membership of which is inherited through the mother,
is a social concept and embraces an exogamous entity. There are six
principal omaanda. Each has its own property, which can only be
inherited through the mother, i.e., by brothers by the same mother, by
the mother's brother or by the son of the sister of the deceased born of
the same mother. The eanda, therefore, also has considerable significance
in ordinary social arrangements 2•
Tbe oruzo forms the basis of local groupings, since marriage is virilocal
(i.e., wife living at husband's home), and oruzo-kin tend to congregate
together. A family settlement, therefore, consists of oruzo-related males,
their wives (Herero marriage is traditionally a polygamous institution)
and children. In a pastoral community such family settlements are
small 2.
"Bilateral descent, as found amongst the Herero, is unknown amongst
the other ethnie groups of South West Africa and Southern Africa 3•
It cannot be widened in scope, and it can only exceptionally be applied
to non-Herero who might wish to become Herero, since normally only
the children of a Herero father and Herero mother can possibly belong
to one of the recognized patriclans and matriclans. The number of
these is very smaH and known to everybody, and every Herero can
define precisely where he stands, genealogically, in the framework of
the whole Herero system. There is hardly room for interlopers, joiners,
new citizens; the Herero people can only regenerate itself from within.
In this sense it is the perfect model of a "Chosen People": by immutable
iaw, ordained from the beginning, all humanity consists only of Herero
and Strangers •.
That such a social system should colour the thinking of the Herero
on practically every subject, is only to be expected.
86. The Herero never developed a centralized political structure with
a paramount central authority 5• Hererodom simply meant a loose con
glomerate of factions, each in itself independent, and headed by an
omuhona who was both leader and priest, and whose powers derived
from his possession of the holy fire, and his wealth. The basis of organi
zation was religious cult within the oruzo, and since there were several
such sections, none in reality being senior or paramount, the development
of central authority was not possible 6• As will be seen bereunder, the
lack of central political authority proved to be a great disadvantage in
t:hewars between the Herero and the Nama 7•
1Vedder, The Native Tribes of South West Africa (1928), pp. 186-187.
2 Ibid., p187.
3 Murdock, G. P., Africa: lis Peoples and Their Cul/ure History (1959), pp.
~.72-373.
4 Vide in gencral,Gibson, G. D.,"Double Descent and Its Correlates among the
Herero of Ngamiland", in American Anlhropoiogist, Vol. 58, No. 1 (1956)pp.109-139;
Vedder, op. cit., pp49-50.
' Murdock, op.cil.,p. 372.
6 Vide Andersson, C. J.,Lake Ngami (2nd ed.),p. 198: Vedder, The Native Tribes
of South West Africa (1928), pp. 187-190.
1 Vide Chap. Ill, infra,and Palgrave's Report, p.16.344 SOUTH WEST AFRICA
Before the advent of German influence, the Hereros had seven recog
nized chief-priests. There were also others who were less significant.
In the Kaokoveld there was none of any importance ~. None of these
chief-priests, or "cattle kings", was in fact paramount 2•
The status of priest-chief was hereditary, passing from father to eldest
son, but onlv with the consent of the councillors 3.The officeof councillor
was regulatéd by law on a basis of relationship and property as well as
persona! attributes. Chiefs and councillors discussed tribal matters at
the holy fire 4• The power of administering justice was vested in the
cbief, together with a few eminent men who served as judges s. According
toVedder:
"\Vhen the evidence of witnesses is heard many oaths are taken ...
They swear by the ancestral grave, the missionary, the church, the
bones of the father, the headgear or tears of the mother, heaven, the
6
colour of the oruzo oxen ... "
87. As mentioned above, the Herero took an exclusive view of their
national or ethnie group-a Herero could normally only become one
by birth. But even this essential qualification was not enough; even
children born of Herero parents had to be presented to their departed
ancestors, and made legitimate and accepted members of the lineage
by certain rites. An infant was introduced to its ancestral spirits at the
sacred hearth with prayer and the sprinkling of consecrated water by
the family priest, and there given its name. Its navel cord was kept in
a bag by the head of the family, together with a thong in which there
was a knot for each member of the family. The knot was untied when
the member whom it represented died or became a Christian-which
was considered to amount to the same thing 7•
When a child had got its permanent teeth, the Herero national mark
of front teeth mutilation was put upon it. As soon as a number of children
were ready for this operation, it was performed at the sacred hearth.
A v-shaped notch was filed between the upper middle incisors, and the
two or four lower incisors were knocked out with a chisel or stick, a
stone being used as hammer s. In the Kaokoveld the custom was to
knock out only the two middle incisors. Such tooth deformation was
not for the sake of adomment, but was deemed an essential mark of a
Herero 9•
Another mark of membership of the Herero people was circumcision,
performed between the ages of 6 and ro, but often much later 10•There
were attendant rites, and the circumcised lads had to live in seclusion
for a long time. Those who were circumcised together formed an asso
ciation. They called each other "co-eval", and were obliged to help each
other in certain ways 9.
1 Vedder, The Native Tribes of South Wesl Africa (1928),p. 166.
2 Vedder, op.cit.,pp. 146-14ï·
3 Vedder, The Native Tribes of South West Africa (1928),p. 188.
4 Ibid., p.189
' Ibid., pp.195-196.
6 Ibid., pp.196-197.
7 Vedder, The Native Tribes of South West Africa p928), pp. r7b, 190.
8 Andersson, C. J., l.ake Ngami (2nd ed.), p. 226; Vedder, The Native Tribes of
Sou/11West A_frica (1928),pp. 177-178.
g Vedder, The N,itive Tribes of South West .4/rica (1928),p. 178.
10 Andersson, C. J.,Lake Ngami (2nd ed.), p. 225. COU~TER-MEMORIAL OF SOUTH AFRICA 345
For girls there were puberty rites, which were deemed necessary for
1
them if they were to be true Herero • These are still observed.
III. LA::,fGUAGE
88. The Herero language belongs to the Bantu family of languages,
and is a pure Bantu language in the sense that it does not in sound
system, structure or vocabulary betray any significant non-Bantu in
fluence. It does not, for example, have the "click" (implosive) sounds
found in south-eastern Bantu languages like Zulu and Xhosa, which
derive from ancient contact with Bush and Hottentot populations.
The Bush and Nama speaking peoples in South West Africa also make
copious use of "click" sounds, and the absence of such "clicks" in Herero
speech would therefore seem to point to a shorter period of contact
between the Herero and these peoples, as is also borne out by tradition
and other ethnographie dues.
IV. RELIGION 2
89. The anccstor cult of the Herero of pre-European times was in
extrïcably bound together with their social and political structure.
Social and political institutions and customs were regarded as "right"
because they were inherited from the ancestors, and were not to be
questioned. The ancestors were all-powerful. They could give and w.ith
hold help. They were glad to give help to their children, and continually
watched over their interests, but, if neglected, then anger brought
misfortune 3•
In times of dire need the Heiero felt themselves compelled to seek
direct communication with their ancestors, and for that purpose it was
necessary that the priest should visit the ancestral graves. Vedder
describes the procedure that was followed on such occasions as follows:
"Having corne near the grave he [i.e., the priest] barks like a dog,
thereby intimating his arrival. Having reached the grave he lays his
suit before the ancestors and solicits faveurs in a few words. Then he
replies to his requests in a dissembled voice on behalf of the ances
tors. Athis departure he barks again. He thus imitates the visit of a
petitioner who cornes to the priest-chief. is barked at by the dogs,
speaks to him, attains his end and is led off the premises under the
barking of the dogs •.''
A notable feature of this cult was the holy fire, which was kept going
at the sacred hearth (okuruuo) by a fami1y priestess, and could only
be rekindled with sacred firesticks inherited from earlier generations 5•
There were numerous rituals to be performed by the head of the family
as priest, and numerous rules and tabus to be observed by ail members
1 Vedder, The Native Tribes of South West Africa {r928), pp. 178-179.
i Vide in general Vedder, The Native Tribes of South West Africa (1928), pp.
164-175.
3 Ibid., pp. 166,175; Vedder,op. dt., pp. 47-50.
• Vedder, The Native Tribes of South West Africa (r928), p. )70.
5
Andersson, C. J.,Lake Ngami (2nd ed.), pp. 223-224; Vedder, The Native Tribes
of So11/h WestA/rica (1928), pp. 167-178. SOUTH WEST A1''RlCA
of the family 1•The main basis of Herero existence being their herds 2,
these were hedged round with the strictest imperatives of the ancestor
cult. Most of the animais which a Herero owned were actually not bis
persona} property at all, but, having been inherited from his ancestors,
were held in trust for them on behalf of their descendants in the family.
Cows were allotted to each mcmber of the family, young and old, who
therefore knew that his daily sustenance derived from the bounty of his
ancestors, who had carefully nursed the family wealth, and who expected
him to do Iikewise. The legendary covetousness and parsimony of the
Herero with regard to cattle were therefore founded on conceptions that
went very deep indeed. Their devotion to their stock had the same
3
origin •
V. EcoNOMY
90. The Herero of early South West Africa were pure pastoral nomads.
In fact, the y were the only Bantu nation in Africa who did not practise
agriculture but pursued a life of independent pastoral nomadism 4.Of
their early history in the Territory they themselves say that there was
nothing more to it than trekking from one grazing area to another and
quarrelling with other people over water and pasture. Theywere primarily
a cattle-owning people, but also kept sheep and goats 5•Their large lierds
of cattle impressed early European travellers in the Territory, and were
also the envy of raiding Hottentot groups. As stated before, cattle played
an important part in the social and religions life of the Herero, and
because of a peculiar spiritual attachment to their herds, they rarely
parted with or slaughtered a beast 6•
Apart from planting a patch of tobacco here and there they did not
utilize the soil for agricultural purposès. Their herds always provided
the necessary subsistence in the form of milk and meat, and skins served
as clothing 7•
Land and ground were regarded by the Herero as belonging to the
community or tribe. Individual rights were only recognized in regard
to movables, i.e., cattle, goats, sheep and household or persona! pos
sessions. Such movables were, as stated before, inherited either through
the oruzo or through the eanda, as the case might be. Usually a trust
worthy person was appointed as administrator of the estate, and very
often a deceased would, before his death, have expressed bis wish that
provision be made for favourites 8 •
The pastoral economy of the Herero compelled them to live in small
1 Andersson, C. J.,Lake Ngami (2nd ed.),pp. 221-223; Vedder, The Native TriMs
of S0i1tl1West Africa (1928), pp. 166-175.
• Andersson, C. J., Lake Ngami (:md ed.), pp. 1J4-115; Palgrave's Reporl, pp.
12-13.
3 Vedder, The Native Tribes of South West Africa (1928), pp. 169, 179-180, 183-184,
186, 194-195; Vedder, op. cit., pp.47-50.
• Murdock, op.cil.,p. 370.
• Ibid.; Vedder, op. cil.,p. 145; Andersson, C. J.. Lake Ngami (2nd ed.), pp
n4-115, 217-220. 232; Palgrave's Report, pp. 12-13.
6 Vedder, The Native Tribes of Scn,th West A/rica (1928), pp. 182-183; Vedder,
op. cit., p50.
7 Vedder, The Native Tribes of South West Africa (1928),pp. 181-183.
8 Ibid., pp. 193-195; Vedder, op. cit.• p.46. COUNTER-1\IEMORIAL OF SOUT:tt AFRICA
347.
groups. A werf, or family settlement, was limited to people who were
related, and unrelated familles did not live in one werf •
1. The Rehoboth Basters
91. The Basters of Rehoboth formed a separate group living in its
own territory (or, as they called it, Gebiet), when Respondent assumed
control over South West Africa. Since they only arrived in the Territory
in the latter half of the nineteenth century 2, it wm be convenient to
3
consider their history briefly in the context of the events at that stage
and to deal with them slightly more fully when describing the groups as
they were when Respondent assumed the Mandate 4•
J. The Europeans
92. The earliest contacts with South West Africa by Europeans, came
from the adjacent Cape of Good Hope, which was a possession of the
Dutch East India Company from 1652 until 1795, from which time
onwards it was a British colony (save for the short period between
1803 and 1806). The incentives for the first expeditions to South West
Africa arose from contacts between the White settlers and the Hotten
tots, who visited the Cape seasonally and traded with the White men.
From the Hottentots the authorities at the Cape learnt of the existence
of other ethnie groups living further to the north. Consequently, two
ships, the Grundel and the Bode, were despatched from Cape Town in
1670 and r677 respectively in an endeavour to gather information about
these people and the country they inhabited. Although the crews of these
ships went ashore along the coast of South West Africa, they found the
whole coastal area desolate and unapproachable. The results of these
expeditions were thus largely negative 5•
93. In view of the barren and inhospitable nature of the coast, further
attempts to explore the interior of South West Africa were made overland.
In r738 a fanner, Willem van Wyk, traversed the arid regions of the
north-western Cape and reached the Orange River. In 1760, another
farmer, Jacobus Coetzee of Piquetberg, near Cape Town, explored the
territory beyond the Orange River, ultimately reaching the hot springs
of Wannbad. There be encountered Namas, who told him about the
Dama, living further to the north 6•
94. The Governor of the Cape at the time, Ryk Tulbagh, was interested
in Coetzee's report and immediately organized a scientific ex:pedition to
the territory north of the Orange River. The party consisted of 17
Europeans and 68 Hottentots, under the leadership of Hendrik Hop, an
officer of the civil guard of Stellenbosch (a town near Cape Town}, and
included a land surveyor and cartographer, a botanist, a doctor, a
philologist and an ethnographer. Fifteen ox:-wagons provided the trans
port. This expedition reached the site of the present Keetmanshoop, and
1 Vedder, op. cit.p. 46.
2 Vide Palgrave's Report,p. 78.
, Vide Chap. III, para. 34,infra.
• Ibid.,para. 88,infra.
6 Vide Vedder, op. cilpp. 9-r2.
Ibid., p. r9. SOUTH WEST AFRICA
members of the expedition discovered the Fish River, a tributary of the
Orange. Although no contact was made with any inhabitants of the
Territory other than the Nama, valuable scientific information was.
1
gathered •
95. After these first expeditions, Europeans from the Cape ventured
into the interior of South West Africa with greater frequency. Of parti
cular interest was the case of one Wikar, a Swede, who deserted from
his employment as an official at the Cape in 1775, and roamed for
four years in the wilds across the Orange River. In 1779 he was pardoned
when the Governor leamt of his wanderings. His report to the Governor
contained surprisingly reliable information about almost ail the various
peoples at that time occupying South West Africa, although for the
most partit was based on hearsay 2•
96. From 1791 to 1792 one \Villem van Reenen headed an important
expedition to the interior of South West Africa. The expedition went
as far as the present Rehoboth, and one of its members, Pieter Brand,
proceeded even further north and became the first White man to en
counter the Bergdamas, probably in the vicinity of the Auas Mountains.
They were living in dire poverty, having been deprived of their livestock,
according to them, by the Nama. This expedition did not meet any
Hereros. They did, however, find a White family by the name of Visagie
farming near Keetmanshoop 3•
97. As the result of the abovementioned and other expeditions of
discovery launched from the Cape, South \Vest Africa up to the Swakop
River was thoroughly explored by the end of the eighteenth century,
and some economic activity by Whites (e.g., farming and hunting) had
commenced in the Territory. Further European contacts with South
West Africa form part of the general history of the Territory, which
is dealt with in the next Chapter.
1 Vedder, op. cit., pp19-22.
2 Ibid., p22.
3 Ibid., pp.32-35, 230. CHAPTER III
::HISTOR Y OF SOUTHWEST AFRICAFROMAPPROXIMA TELY
1800 TO 1920
A. Introductory
1. The history of South West Africa during the nineteenth century
-consists of a record of almost uninterrupted warfare, particularly
between the Nama and the Herero. As will be seen, in the period be
tween 1835 and 1861 the Nama became undisputed masters over the
.Herero. After 186I, the tide turned in favour of the Herero, and in
1870 they concluded a peace treaty which confirmed their position as
-the dominant group in central South West Africa. After ten relatively
·peaceful years, the year 1880 saw the beginning of renewed hostilities,
·which were not finally terminated until the Germans, who had in the
meanwhile acquired authority over the Territory, suppressed the war
·ring tribes by force of arms in the last couple of years of the century.
The first two decades of the present century were marred by further
·warfare-fi.rst between various dissident groups and the German autho
Tities in the years between 1903 and 1907, and thereafter by the First
World War, in the course of which South African troops conquered
the Territory. .
The manner in which the destinies of the various groups were affected
-by these happenings, is the subject-matter of the present Chapter.
B. First Contacts Between the Herero and the Nama
2. The first contact between the Herero and the Hottentots or Nama
-came about when Herero hunters encountered Nama bands in the
region of the Swakop and Okahandja. Clashes occurred, and the Nama
were driven back. The fierce appearance of the Herero, with their
teeth filed into points, struck terror into the Nama 1•
-3. The southward movement of the Herero was accentuated by
,droughts in 1829 and 1830, which caused them to move with thousands
-of cattle into the territory claimed by the Hottentots. Although the
Red Nation, who were at that stage the leaders of a Nama alliance 2,
3
,organized a raid and took several thousand cattle from the Herero ,
this did not hait the Herero invasion, but merely led to the herds being
protected by stronger guards. Any resistance to the Herero advance
was ruthlessly crushed ~.It soon became apparent to the Hottentots that
they were no match for the more powerful Herero. Consequently
Cames, the female chief of the Red Nation, sought the assistance of
one Jonker Afrikaner, the chief of a tribe of Orlam Hottentots who
1 Vedder, o,pcit., pp. 130-131.
• Vide Chap. li, para80, s11fmJ.
s Ve-dder,op.cit.p. 177.
4 Ibid.,pp. r77-178.350 SOUTH WEST AFRICA
were then living far south near the Orange River 1. In view of the role
to be played by the Afrikaner tribe in the succeeding years, it will be
convenient to give a brief account of its history up to the receipt of
this request.
C. Early History of the Afrikaner Tribe 2
4. During the first British occupation of the Cape in r795, a Hot
tentot tribe, calling themselves the Afrikaners, lived in the district of
Tulbagh in the Cape. Their leader was one Jager Afrikaner. The British
authorities provided the Afrikaner tribe with ammunition for use
against the Bushmen, but Jager Afrikaner graduall y extended his
activities to the more profitable pursuit of robbing persans who were
wealthier than the primitive nomadic Bushmen. This led him into con
fl.ict with the authorities, and he moved to a stronghold on an island
in the Orange River, where he collected a band which soon terrorized
the whole area. ln r799 the authorities at the Cape put a price on Jager's
head, and sent a commando against him. Although this commando
did not reach his hideout, Jager thereafter became more cautious and
restricted his activities to the area beyond the boundaries of the Cape
Colony.
After being the scourge of the area for years, J ager was converted
to Christianity by a missionary, and <lied in 1823 at peace with the
authorities.
5. The death of Jager gave rise to a dispute about succession to the
chieftainship, which caused a split in the tribe. His son, Jonker, moved
at the head of the larger section of the tribe across the Orange River
into South West Africa. \Vhile living a short distance north of the
Orange River he received the request for assistance against the Herero
mentioned above. This request suited the ambitious Jonker very well.
He agreed to wage war against the Herero on condition that he would
be allowed a free choice of a place of residence in the Red Nation's
tribal areas 3•
D. The Era of Nama Domination
6. On his way to the north, Jonker clashed with Korana Namas,
and carried off some of their cattle J_ In 1835 he defeated the Herero
in three battles. First be came down on Herero herdsmen north of
Gibeon. His possession of horses and firearms gave him a tremendous
advantage-he shot most of the Herero down and took their cattle.
Soon thereafter he defeated them in two further clashes, and proceeded
up to Okahandja where al! the Herero had fied into the mountains 4•
In the following years, raiding of Herero cattle continued. Many Herero
1 Vedder, op. cit., ppr77, 180; Andersson, C. J.,Lake Ngami (2nd ed.).p.2r9;
Alexander, op. cit.Vol. II,p.151.
2See in general U.G. 41-1926, pp. ro-II,
3Vedder, op.cit., prSo.
•Ibid., p. rSr; Alexander, op. cit.Vol. II, p. 151; Andersson, CJ.,Lake Ngami
(2nd e<l.)p. 219·. COUNTER-MEMOIUAL OF SOUTH AFRICA 351
were either killed or enslaved by the Afrikaner Namas and other Nama
tribes 1•
After bis successful battles against the Herero, Jonker established
himself at Eikhams, which he renamed Windhoek, in about 1840 2•
7. Although the Herero had been severely defeated and had lost
half 3 of their cattle to Jonker, and many had fled to the Kaokoveld,
some of them preferred to corne to terms with Jonker. Amongst them
were the chiefs Tjamuaha, Mungunda and Kahitjene. After the losses
inflicted on them by Jonker, they had again managed to improve their
economic position, not only by their energy and skill in raising stock,
but also by raiding other tribes of their own race. A retreat to the
north in fear of further onslaughts by Jonker would have subjected
them to the risk of falling into the hands of these other Herero tribes.
As a result, they placed themselves under Jonker's protection\ and,
with the assistance of three missionaries, a peace treaty was concluded
between Jonker and Tjamuaha on 25 December 1842. For the mo
ment the future appeared to promise peace and security. Jonker in
creased the number of his followers by adding new members to his
tribe, and improved the amenities of Windhoek by inviting traders to
settle there 5•
8. Relations between Jonker and his Herero allies soon became
strained. In 1844 Oasib, the successor to Garnes as chief of the Red
Nation Namas, visited Kahitjene and was hospitably rcceived. Suddenly,
however, he fell upon the Hereros, killing ail who offered resistance,
and taking Kahitjene's cattle. Jonker did nothing to intervene on behalf
of Kahitjene, who, not unnaturally, concluded that Jonker's protection
was not worth having, and withdrew from his alliance with the Afri
kaner Namas 6• At the same time, Jonker himself was becoming pro
gressively more imperious and arrogant in his relations with the Her
ero, even those allied to him. Thus, for instance, Vedder states:
"... when a fit of anger took him, he used to order the Namas to
'bind my friend's calf to the wagon wheel' [i.e., Maharero, son of
Tjamuaha], and Maharero had then to stand, for days and nights
at a time, with his feet and arms bound with riems to the wheel
of an ox wagon 7".
g. In March 1846 Jonker decided to arrange an expedition (accom
panied by Maharero and some Herero warriors) to punish another
Herero chief, called Katuneko. The latter had treacherously attacked
and annihilated: five Mbanderu 8 kraals (or villages) and taken their
stock. When Jonker arrived at Katuneko's residence it was deserted.
Jonker became so angry that he fell upon a wealthy and completely
1 By 1837 it had already become a common practice for the Nama to have Herero
slaves, vide Alexander, op. cit.Vol. I,pp. 221-224, Vol. II, pp. 39, 163, 2u-212;
Palgmve's Report, p. 17; Andersson, Lake Ngami (2nd ed.), pp. :nS-220.
2 Vedder, op. cil., p182.
3 Andcrsson, C. J., Lake Ngami (2nd ed.J, p. 220.
• Paf{!rave's Report. pp16-17; Vedder, op. cil., 197.
5 Vedder. op. cit.pp. 198-205.
6 Ibid., p. 206.
7 Ibid., p. 208.
8 The eastern branch of the Herero. 352 SOUTH WEST AFRICA
innocent Herero, named Kahena, and carried off more than 4,000 of bis
oxen 1• ·
ro. While Jonker was on a further expedition to the north, Oasib, of
the Red Nation Namas, attacked the Mbanderus in the east and brought
2
back rich spoils •
II. In December 1848 Jonker heard of a ship which was lying
wrecked somewhere north of Walvis Bay. He started in search of the
wreck but could not find it. He felt annoyed at the idea of having to
retum empty-handed. Passing near some Herero villages, he invited one
of the wealthy Hereros, Kamukamu (a half brother of Kahitjene, Jonker's
former ally) 3, and received him in a friendly way, but had him mur
dered at night. Thereafter he wiped out the villages of Kamukamu
and two other Herero headmen by killing all the inhabitants, and
· drove their cattle away to Windhoek•.
Kahitjene endeavoured to take revenge but was defeated. Thereafter
he went to settle in the vicinity of Barmen, where, to make space for
himself and to compensate for his losses, he attacked ·other Hereros 5•
12. Oasib of the Red Nation Namas made a raid on one of the posts
of Jonker's ally, Tjamuaha, and drove him out of it. Jonker thereupon
authorized Tjamuaha's son, Maharero, to undertake an expedition
against other Hereros to compensate for the losses. No steps were
taken against Oasib 5•
At this stage, the whole central area of South West Africa had
lapsed into chaos. Raiding and plundering became general. Kahitjene,
afraid to attack Jonker directly, took punitive measures against Jonker's
6
servants, the Bergdamas •
Jonker finally decided to take action against the whole Herero
nation 7• The fi.rst on the list were the Mbanderu. They had surprised
one of Jonker's cattle posts and in order to take revenge, Jonker entered
into an alliance with Oasib of the Red Nation, who was entrusted with
a punitive expedition against the Mbanderu. Oasib did his best to make
a clean sweep. AH the men upon whom hands could be laid were killed.
At first the young women and children were spared and carried off as
slaves. However, when it was found that they were unable to endure
the long journey, they were also despatched s.
Thereafter, Jonker dealt with the Hereros in Windhoek. Those who
did not escape immediately were killed. Since these Hereros had pre
viously separated from their own people and linked up with Jonker,
they were intensely hated by their own nation, who killed them
wherever they could lay bands on them 9• :
13. Both Kahitjene and Tjamuaha were at that stage living at
Okahandja (Schemelen's Hope). When rumours of Jonker's designs
against the Herero reached him, Kahitjene decided to fl.ee.In August
1 Veddcr, op. cit., 2ro.
Z Ibid., pp.210-2 II.
3 Vide paras. 7-8, supra.
+ Veddcr, op. cit., pp2u-212; Andcrsson, C. J., Lake Ngami (2nd ed.), p. 124.
) Vedder, op. cil.p. 213.
6 Ibid., pp.213-214.
7 Ibid.;Andersson, C. J.,Lake .Ngami (2nd ed.), p. 124.
8 Vedder, op. cil., pp214-215,
9 Ibid., p.218. COUNTER-MEMORIAL OF SOUTH AFRICA 353
1850, he left with his herds and followers, but walked straight into an
ambush. Kahitjene managed to escape, but everything he possessed
in Okahandja fell into Jonker's hands. Thereafter the Namas fell upon
Tjamuaha's Herero, murdering and plundering whoever came into their
hands 1•
1+ At about the samc time as the massacre at Okahandja took
place, there landed at Walvis Bay a person who was destined to play a
considerable role in the history of South West Africa. He was Charles
John Andersson, a Swedish explorer, trader and physical scientist. He
was accompanied by Sir Francis Galton, an English explorer, hunter
and scientist, who spent 15 months in South West Afnca. Andersson
remained in the Territory, and eventually <lied there in 1867. Both
these men recorded their experiences in books 2•
On his arrivai in South West Africa, Galton was anxious to induce
the Nama and Herero to make peace. He visited Jonker, who apologized
to the Rhenish missionary at Okahandja, Mr. Kolbe, for the brutal
behaviour of the Afrikaner tribe 3,and gave a written undertaking to
Galton in the following terms:
"Statement and Pledges, sent by Jonker to the English Govern
ment:
'I acknowledge that I have donc much wrong in this land but I
pledge my word to the English Govemment that I will from this
day forward abstain from all injustice to the Damaras. [i.e., Hereros]
-1 promise that I will with all my power keep peace with them
and that I will use my influence as well as I can to persuade the
other Namaquas to do the same.' signed:-Jonker Africaner 4."
Other Nama tribes adopted the attitude that they had every justifica
tion for fighting their old enemies (i.e., Herero) who "wanted to take
[their] land away from [them]" s. Jonker, however, was restrained for
a while. Tjamuaha continued living in subservience to him 6.
15. \Vith the Hereros thus temporarily freed from attack by their
most persistent enemy, they commenced bitter intemecine struggles in
which Kahitjene was killed and his whole tribe broken up 7•The attitude
of the Hereros has becn summed up as foilows:
1
Vedder, op. citpp. 218-219; Andersson, ~- J.,Lake Ngami (2nded.),pp. 121-123;
Chronik Otfimbingwe, 1850,Quellen zurGeschichte von Südwestafrika 1, p. 17. (The last
mentioned source consists of 30 unpublished volumes of extracts from the original
records of the Rhenish Missionary Society. These extracts were compiled by
Dr. H. Vedder, former Pracses of the Rhenish Mission in Damaraland, at the
request of the South ,vest Africa Administration, and constitute a very valuable
source of information on the early history of South \Vest Africa. They are housed
in the ~arnegie Library, University of Stellenbosch.Hereinafter, thîs source will be
cited asQuellen 1-29.)
2 Andersson, C. J., Lake Ngami (2nd ed.); The Okavango River (1861); Notes
of Travel in South Ajrica (1875); Galton, F.,Interior of South Africa (1852); Tne
Narrative of an Explorer in Tropical South Africa (1853).
3 Andersson, C. J.,Lake Ngami (2nd ed.), pp 132-136.
• Diary, F. Kolbe, Jan.-Apr. 1851, Quel/en 28, p. 28.
' Vedder, op. cil.p. 247.
6 Ibid.,pp. 247-248.
7 Andersson, C. J.,Lake Ngami (2nd ed.),pp. 142-144, 148-149. 354 SOUTH WEST AFRICA
"\Vhenever the Hereros were not worried by the Orlams and the
Namas, they fought ail the more fiercely amongst themselves.
It was a war of each one against ail the rest, and every small chief
who had a few cattle plundered and murdered the others who had
rather more, and every one who had been despoiled looked for a
third at whose expense he could recoup his loss. Bloodshed and
misery, murder and horror, were so prevalent throughout the land
that people were almost inclined to wish that the times when
Jonker inspired universal fear and terror would return. It is much
easier to be ready for a lion than to protect oneself against a whole
pack of hungry wolves ."
16. Galton left on 6 January 1852 2•Jonker immediately broke loose,
and Andersson, after a detailed description of investigations made by
himself to ascertain the facts, recorded, inter alia:
"Here [i.e., at Barmen] fugitives arrived daily, bringing tidings
of plunder and bloodshed. I felt grieved and angry at Jonker's
outrageous behaviour. Only a year before, he had most solemnly
promised Mr. Galton never again to molest the Damaras [i.e., the
Hereros] ...
The result of my own and Mr. Hahn's inquiries, was a conviction
that Jonker, with his murderous horde, had destroyed in his recent
foray upwards of forty werfts or villages; and that the aggregate
number of cattle carried off could not have been much short of
ten or eleven thousand. One powerful tribe of Damaras had been
completely broken up J."
As a result of his success, Jonker gathered a large number of followers,
servants and slaves from other Nama tribes, Herero and Bergdama •.
17. Other Nama tribes were envious of Jonker's success, and in
the years 1852 to 1855 he was involved in clashes with the Red Nation
and the Topnaars. In May 1854 the Topnaars launched a fierce attack
on Windhoek. Jonker sent his bondsmen, the Herero, to ward off the
attack, but after a large number of them had been shot down, they
broke and fled. Jonker had ail those shot who ran away, and launched
a successful counter-offensive 5•
In November 1855, under influence of missionaries and Europeans
who were mining copper in the area, peace was concluded between
Jonker and the Red Nation. Further attempts to secure a more universal
cessation of hostilities resulted in a peace treaty being signed at Hoach
6
anas in January 1858 by II Nama chiefs .
18. While the peace negotiations amongst the Namas were proceed
ing, Jonker, having either impoverished or subjugated the Herero,
turned his attention to the Ovambos. In ·october I857 he sent a com
bined force of Nama and Herero into Ovamboland. Eighteen cattle
posts were stripped of all their cattle and a number of sons and wives
of Ovambo chiefs were taken prisoner. On the return journey, one sec-
1 Vedder, op. cit.p. 251, quoting von Rohden, an author who wrote in 1888.
2 Andersson, C. J.,Lake Ngami (2nd ed.), pp. 251-252.
' Ibid .• pp. 295-296.
4 Vedder, op. cil., pp. 255-258.
5 Ibid., p. 263.
G Ibid., pp. 265-269. COUNTER-MEMORIAL OF SOUTH AFRICA 355
tion of the party made a detour to Grootfontein, killing a number of
Herero cattle herdsmen and taking their stock 1.
In August 1860 Jonker himself paid a visit to Ovamboland. Andersson
gives the following account of his activities:
"There was at the time a strong party [of Ovambos] who inclined
for another chief, at the head of which was Nakonjona (a_remarkabiy
intelligent and fine-looking man), but Chypanza [the chief], dread
ing his influence, caused him to be put out of the way. On this, the
younger brother of the murdered man, the present chief Chykongo,
sent for assistance to Jonker Afrikaner, the famous Namaqua free
booter, who shortly afterwards appeared in Ovamboland with a con
siderable force. For a white he amused himself by laying heavy
contributions of cattle, etc., on the natives, besicles slaying very
many of them 2_"
After six months he retumed with 40 ox-wagons loaded with booty
together with 20,000 cattle 3.
r9. During Jonker's absence, other Namas followed his example by
raiding Ovambo and Herero tribes. Reports of missionaries of the time
abound in staries of the atrocities committed on these raids, such as,
to quote one example, imprîsoning men, women and children in their
huts, putting combustible material around them, and burning alive the
people inside \
20. By 1860, the Hereros were entirely subjugated and demoralized.
Large numbers of them were slaves to the Nama, at whose hands they
often received cruel and inhuman treatment. This fact also is illustrated
by contemporary missionary reports 5•
E. The Liberation and Rise of the Herero
21. Shortly after Jonker's return from Ovamboland, both he and
Tjamuaha fell ill and both <lied in 1861, within a few months of each
other 6• Jonker was succeeded by his son Christian, who was a fearful,
ineffectual man 7•
22. Tjamuaha's son and successor, Maharero, on the other hand, was
made of stemer stuff than his father, and bandage held no charms for
him. He was determined to liberate the Herero from the Nama rule.
After his father's death, he gathered his people and cattle (as well as
Christian's cattle) and escaped to Otjimbingwe, where Andersson had
established a trading store. As a result of their service with the Afri
kaners, the Hereros had Iearnt to use firearms. Maharero immediately
began preparing for an attack from the Afrikaners, which he knew was
inevitable. He collected Herero warriors from the whole area, and his
strength increased rapidly. In the meanwhile, Christian was gathering
1 Vedder, op. cil.pp. 269-270.
2 Andersson, C. J.,Notes of Travel in South Africa (1875), p. 217.
' Vedder, op. cit.p. 271.
• Chronik Otjimbingwe, r86o, Quellen I,pp. 39-40; Report by G. Kronlein, Berseba,
16 Mar. 1861, Quellen rr,p. 299.
5 Vedder, op. cit., p26o.
6 Ibid., pp.275-277.
7 Ibid., p.329.356 SOUTH WEST AFRICA
bis own forces. By a ruse, Christian managed to launch a surprise
attack on the Hereros at Otjimbingwe in June 1863. After initial un
certainty, the Hereros, however, rallied and routed their attackers 1•
Andersson gives a vivid account of the battle, from which the following
is an extract :
"A grand but appalling scene followed. Fully fi.fteen hundred
Damaras [i.e., Hereros] set off in hot pursuit of the flying Namaquas,
who now only thought how they might best use thcir legs; it was,
howevcr, short work, as the broad assegaai of the Damaras made
terrible havoc in the ranks of their opponents ... The carnage
was fearful, ... Had every Damara present that day done his duty,
not one Hottentot ought to have survived, as they might have
been eut off to a man with the greatest ease. But, until the pursuit
began, there was not certainly three hundred actually engaged, and
instead of pursuing the enemy in earnest, most of them fell to
plundering; and hundreds of Damaras might have been seen carrying
off booty, or stripping the slain. It was not unusual to see a fellow
hastily covered with the tom garments of some slaughtered foe,
still reeking with gore. As it was, the Damaras had gained a com
plete vie tory ... v'
23. Christian, the Nama chief, was himself killed in the battle of
Otjimbingwe. He was succeeded by his brother, Jan Jonker. Despite
missionary efforts to secure peace, the Afrikaner Namas were determined
to take revenge on the Herero • Deciding that attack was the best
means of defence, a Herero fighting force in March 1864 attacked and
surprised Jan Jonker's tribe and the Topnaar Namas, who had united
with him, east of Windhoek. A large number of cattle was captured 4•
24. After the defeat, Jan Jonker organized a Nama alliance com
prising his tribe, the Red Nation under Oasib, the Veldskoendraers
under Hendrik Ses, the Grootdodens under Aimab and the Topnaars,
with a commando from Garib 5_Maharero, assisted by Andersson, also
prepared for war, and he collected a force of 3,000 Hereros. In addi
tion he was assistcd by the troops of the Swartbooi Namas. In June
1864 the combined Herero-Swartbooi force encountered Jonker's men
at a place called Two Waters in a mountain range near Seeis. After
severe resistance, Jonker's men were defeated 6•
25. Jan Jonker escaped, determined to take revenge on the Swart
boois for their assistance to the Herero. In order to get beyond his
reach into territory where they could be protected by the Herero, the
Swartboois left Rehoboth where they had been living up to then, to
settle in the area between the Swakop and Omaruru rivers 7•The party
was, however, overtaken by Jan Jonker, and, after heavy fighting, the
Swartboois abandoned their camp and took up a more favourable posi
tion. The women and children sought refuge in the Sandy bank of a
1 Palgrave's Report, p. 71; Andersson, C. J.,Notes of Travel in South Africa
(1875), pp. 64-78; Chronik Otjimbingwe, 1863, Quellen I, pp. 47-49.
2 Andersson, C. J.,Notes of Travel in South Africa (1875),pp. 75-76.
3 Vedder, op.cit., pp.337-338.
~ Ibid., p.341.
5 Ibid., p.342.
6 Ibid., pp.344-345; Diary, Kleinschmidt, Jun., 1864, Quellen20, p. 134.
1
Vedder, op. cit.,pp.345-347. COUNTER-MEMORIAL OF SOUTH AFRICA 357
river near the camp, which was covered with a species of long wiry
grass. This did not, however, enable them to escape Jan Jonker's men,
who set fire to the grass, by which means a number of women and
children were killed and others seriously injured. Having also captured
the camp, and taken considerable booty, Jonker was content with his
success, and did not pursue the Swartboois further 1.
26. Having thus settled with the Swartboois, Jan Jonker turned his
attention to lllaharero. Since his tribe had been considerably weakened,
he entered into an alliance with the Gobabis Namas under their leader
2
Vlermuis • Thereafter, sporadic fighting took place between this alli
ance on the one side and the Herero and Mbanderu on the other.
Towards August 1865 Jan Jonker heard that the Nama chief, Hen
drik Ses (Nanib), intended to attack the Hereros at Otjimbingwe. Jan
Jonker immediately dccided to join Hendrik Ses for, if Hendrik were
successful, the danger might arise of his jeopardizing Jan's daim to
paramountcy 3• In September 1865, the Namas attacked Otjimbingwe,
but fought in such a half-hearted manner that they were soon put to
füght 4. The Herero, once again accompanied by their former allies,
the Swartboois, followed up their victory and moved against Hendrik
Ses (Nanib). On the arrival of the Herero, Jan Jonker and his men
fled immediately. Hendrik Ses, however, offered a resolute resistance,
and in the words of Andersson:
"... had it not been for the presence of the Rehobothians [Swart
boois], the Damaras [Hercros] would have been driven back with
shame and slaughter. As it was they lost many men, but the day,
somewhat inauspiciously begun, ended in the most complete victory,
every one of the enemy, including the obnoxious chief, being slain 5."
27. During the years 1865 and 1866, warfare also continued among
the other Nama tribes and the Herero, in the course of which the
Namas at Gobabis in particular suffered many casualties 6•
28. Towards the end of 1867, Jan Jonker marched on Otjimbingwe
once more, supported on this occasion by men under Jacobus Booi,
another Nama leader. They managed to surprise the Hereros, "and the
best and bravest of thern were shot down before they could lay their
hands on their guns'' 7•
After the battle Jan Jonker retreated to Anawood with his booty.
The Herero followed him and in the night of 22 December 1867 they
surrounded the Nama camp at Salem (near Anawood). The next day
heavy losses were inflicted on the Namas, who finally managed to
break through and to escape to Tsaobis where, however, the Hereros
had eut off the water supply so that the Namas were forced to flee even
further 8•
1 Vedder, op. cit., pp. 347-348; Andersson, C. J., Notes of Travel in South
Afr2ca (1875). pp. 122-124; Chronik Otjimbingwe, 1864, Quellen 1,pp. 54-55.
Vedder, op. cit., pp349-350.
3 Ibid., pp.350-351.
~ Andersson, C. J.,Notes of Travel in South AfYica (1875),p. 145; Vedder, op. cit.,
p. 351.
' Andersson. C. J.,Notes of TYavel inSouth Africa (1875), p. 147.
6Vedder, op. cit., pp355-356.
1 lbi'd.pp. 356-357.
8 Ibid., pp. 357; Chronik Otfimbingwe, I867, Quellen 1, p. 67.358 SOUTH WEST AFRICA
Approximately a year later, Jan Jonker and Jacobus Booi attempted
another campaign against the Herero, but at Omukaru, on the western
side of Okahandja, the Namas were defeated, and the Boois tribe was
exterminated and disappeared from history 1•
29. After this battle, Maharero decided that the time was ripe to settle
finally with the Namas. In July 1869 a strong force was sent to the
south. Insufficient food was taken along, since the Herero contemplated
living off the livestock of the Namas. However, no Namas could be
found, and the army returned in a starving condition 2•
F. The Early History of the Witboois
30. During the incessant wars between the Namas {particularly the
Afrikaner tribe) and the Herero, another tribe of Orlam Namas had
become prominent. These were the Witboois, who established themselves
at Gibeon in April 1863, after a nomadic existence of 13 years. Their
chief, Kido \Vitbooi, subscribed to the peace treaty of Hoachanas in
1858 3,and he held himself to its terms, refusing to take part in the
wars against the Hereros ~.This attitude brought on him the enmity of
some of the other Nama tribes, and in 1864 he was attacked by Oasib
of the Red Nation, Hendrik Ses (Nanib) of the Veldskoendraers and
Aimab of the Grootdodens. The battle lasted for two days, after which
the Witboois were forced to surrender. The enemy left Gibeon in ruins,
5
and the inhabitants reduced to poverty • However, in a number of
forays against the Red Nation during the following year, the Witboois
managed to recover their position 6•
31. In September 1866, during Kido Witbooi's absence, Oasib turned
up at Gibeon with a large force. He pretended that he had not corne
to fight since Kido only, and not the Witbooi tribe, was his enemy.
However, when some 30 Witboois accepted his invitation to visit his
camp, he had them overpowered and shot. He then fell on Gibeon,
capturing ail the v.omen and children and ail the stock 7• On being
informed of this, Kido gave chase, recovered the women and children,
and defeated the Red Nation in a battle at Rehoboth. Oasib escaped,
8
but died shortly afterwards, being succeeded by his son Barnabas • In
December 1867 a peace treaty was signed which ended the wars between
the Witboois and the Red Nation 9•
G. Attempts at Restoring Peace
32. The interminable bloodshed and chaos 10 Ied the inhabitants,
particularly the European ones, to consider the possibility of assumption
1 Vedder, op. cit.,p. 362.
2
Ibid.,pp. 362-364.
' Vide para. r7, supra.
4 Vedder, op. cit.,pp. 366-367.
5 Ibid.,pp. 367-369.
6 Ibid.,pp. 370-371.
7 Ibid.,PP· 373-374.
s Ibid., pp.374-377.
9 Ibid.,pp. 377-378.
10 Andersson who died on 5 July 1867 near the Kunene River (on an expedition
to the north) wrote shortly before his death: "The cursed mutual distrust ... makes COUNTER-MEMORIAL OF SOUTH AFRICA 359
of control by some European power. Thus in r868 a petition signed by
31 Europeans and 25 Hereros was sent to the British Govemment at the
Cape, asking for its protection 1•In 1869,the management of the Rhenish
Missionary Society requested the Government of the North German
Confederation to afford protection to its missionaries in South West
2
Africa. Nothing tangible resulted from these requests •
33. However, circumstances in the Territory were becoming more
conducive to peace-even though only temporarily. In addition to the
ravages of war, the country in 1869 suffered from the effects of a severe
drought. Maharero's last campaign had been a failure, resulting in near
3
starvation of his armies • The Nama tribes, and in particular the tribe
of Jan Jonker, were weakened and impoverished by warfare and
drought 4• Through missionary intervention, and after months of in
trigue and treachery amongst the va.nous Nama and Herero leaders, a
peace treaty was signed at Okahandja on 23 September 1870. The main
dispute for settlement at the conference related to the area to be occupied
respectively by Jan Jonker and his tribe, and by the Herero. Maharero
tried to force Jonker away from Windhoek to the south, but the other
Nama chiefs bluntly refused to agree to this proposal. Eventually a
compromise agreement was reached- Jan Jonker would remain at
Windhoek, but "on feudal tenure". This expression was not defined, and
in addition no boundaries between his territory and that of the Hereros
weredetermined. It will be apparent therefore that the peace of Okahand
ja carried within it the seeds of further dissension and bloodshed 5•
34. Also present at the conference of Nama and Herero chiefs at
Okahandja was a deputation of Basters under Hermanus van Wyk. The
Basters were a group of mixed Hottentot-European descent who had
moved from the Cape Colony and were looking for a place in wlùch to
settle. They were given permission by the Swartboois to live at Rehoboth
{which had previously been occupied by the Swartboois) 6• Other inter
ested tribes present at the conference apparently approved of the ar
rangement 7•
H. The Period of Herero Domination
35. After the peace of Okahandja, Maharero's strength and cattle
increased immensely, and he took full advantage of his opportunity to
repay the Namas for the sufferings of his people in former years. He
sent his cattle to pasture in the lands of the Namas, and even prevented
the Namas from hunting • Jan Jonker's tribe had been so weakened
that they were forced to submit to this treatment, and were progressively
a thorough rcconciliation so difficult, if not impossible, betwcen so many confiicting
interests." (Noies of Travel in South Africa (1875), p. 150.) And further "... the
country is once more thrown into a state of the utmost confusion, and the prospects
of peace farther off than ever". (Notes of Travel in South Africa, 157.)
1 Vedder, op. cil., p. 379.
2 Ibid., pp. 379-382.
3 Vide para. 29, supra.
• Vedder, op. cil.,p. 385.
• Ibid., pp. 385-393.
6 Vide para. 25. supra.
7 Vedder, op. cil., p. 412; Palgrave's Report, pp. 70, 75, 77-82.
8 Vedder, op. cit., pp. 407-.po. SOUTH WEST AFRICA
reduced to a state bordering on starvation. As a result, cattle-stealing
became prevalent 1.
36. Nevertheless Maharero never felt quite safe with Jan Jonker so
near him, and realizing that in the state of general prosperity in which
the Herero were, it would be difficult to collect an army, he and Aponda,
the Chief of the Mbanderu, in 1872, sent a letter to the Governor at the
Cape in which they asked for British guidance and assistance in pre
serving peace. In view of their relations with the Namas, the letter
stated, lack of British assistance would result in "a war of extirpation" 2•
This letter produced no concrete results, and consequently Maharero
made a similar request in June 1874.
37. In 1876 the British Government sent a Special Commissioner,
in the person of Mr. W. C. Palgrave to South West Afrîca to ascertain
the wishes of the inhabitants and to advise the Government 3• Palgrave
held a series of meetings with both Herero and Nama chiefs. Maharero
requested the protection of the British Govcrnment, and offcred a large
piece of territory (which did not belong to him) 4 to the Government.
Jan Jonker consented to the appointment of a magistrate at Windhoek.
As far as the other Nama leaders werc concerned, some were prepared
to accept British protection, whereas others claimed to be able to main
tain peace and order without assistance. The problem of boundaries
between the varions groups was a burning question, on which divergent
and irreconcilable views were held 5.
Thus, according to Jan Jonker, Maharero-" ... thought it would be
better that [they] should be far apart that if [they] lived close together
6
(the y] should be sure to make war" .Jan Jonker also told Palgra ve:
"... I wish to have a boundary line fixed, which shall clearly define
where I can work and procure a living. I am responsible for my
7
people, and I want to know what country I have to use ."
Petrns Swartbooi, a brother of the Chief of the only Nama tribe to
have sided with the Herero, informed Palgrave:
"\Ve stand alone, ... neither our own colour nor the black people
(Damaras) understand us, and that is why we are glad you have corne
... The Damaras [Herero] have told us that we can look for a
place towards the sea. If we find a place, we are not sure that the
Damaras will keep their promise, and allow us to leave herc and
occupy it 8."
Regarding the Bergdama, Palgrave stated: "At present, of course,
their daims to the land are disregarded by the Namaquas [Nama] as
well as by the Hereros 9."
The question of the Rehoboth Basters' right to the Rehoboth area
was a particularly complicated one. Apparently the terms of the trans-
1 Vedder, op. cit., p41 .
5
i Palgrave's Report, pp. 19-zr.
3 Ibid.,p. I.
• Vedder, op. cit., p431.
' Palgrave's Report, pp. 25-26, 40-42, 44-45, 50, 52-54, 57, 61-83.
6 Ibid., p.65.
7 Ibid., pp.65-67.
s Ibid., pp.18, 25, 26.
9 Ibid., p. 51. COUNTER-MEMORIAL OF SOUTH AFRICA
action on which the Basters based their claims to the area had not.
been complied with and Swartbooi, the former occupant of Rehoboth 1.
wanted to return to the area with his tribe. Hermanus van Wyk, leader
of the Basters, and members of his Council, earnestly implored the Cape
Government "to rule the country and secure protection" for thern 2•
Palgrave returned to the Cape and submitted a report to his Governrnent
in which he recommended that the coast of South West Africa be pro
claimed British Territory 3•
As a result of Palgrave's recommendations, Walvis Bay and the
surrounding territory was proclairned a British Crown Territory on
l2 March r878. The boundaries of the "Port or Settlement" of Walvis
Bay were proclaimed as follows:
"... on the south by a line from a point on the coast fifteen miles
south of Pelican Point to Scheppmansdorf; on the east by a line
from Scheppmansdorf to the Rooibank, including the Plateau, and
thence to ten miles inland from the mouth of the Swakop River; on
the north by the last ten miles of the course of the said Swakop
River t".
38. During the period between October 1877 and January 1879,
Palgrave paid a second official visit to the Territory, but, he was not
very pleased with its results. The Hereros had started to distrust him.
The Namas opposed him. The cattle raids and killings continued 5, and
the chiefs did not turn up at meetings which he arranged 6 •Maharero
was always urging that the Government ought to display more power.
With this Palgrave was in agreement. He considered that a military
force "largeenough to inspire fear on the one side and confidence on the
other", would be necessary to enforce peace in Namaland 7•
Palgrave again returned to South West Africain January 1880, this
time as rnagistrate of Walvis Bay and Commissioner for Hereroland.
A resident magistrate, Manning, was also appointed at Okahandja 8•
. I. The Wars of 1880 to 1884
39. By 1880 war between the Namas and Herero once more became
imminent. The reasons appear from the following contemporary reports
from British offtcials in South West Africa:
"I can quite see that it [a war] must corne before long, because
I think it is almost a matter of course. The Damaras [Hereros] are
1 Vide para. 25,supra.
a Palgrave's Report,pp. 75, 78-83.
3G. 50-1877, Report of W. Coates Palgrave, Esq., Special Commissioner to
the Tribes North of the Orange River, of his Mission to Damaraland and Great
Na,naqualand in I876.
• Vide Proclamation by Staff-Commander Dyer, of r2 Mar. 1878, in C.2144,
p. 8, as confirmed by Letters Patent of 14 Dec. 1878, in British and Foreign State
Papers r878-r879, Vol. LXX, pp. 495-496.
5 Palgrave toCapt. ]acabits Isaac, etc19 Dec. 1877, N.A. 287; letterby H. van Wyk,
Rehoboth, 1 Jan. 1878,Quellen 15; Pa/grave to Secretary for Native A-Uairs31 Jan.
1878, N.A. 287; Report by F. Heidmann, Rehoboth, 27 Apr. 1878,Quellen 21, p. 137;
Rhenish Missionaries to Palgrave, 25 Aug. 1878, N.A. 287; Hermanus van Wyk t-0
Maha'Yero, 6 Nov. 1878, N.A. 1136.
6 Vedder, op. cit.pp. 439-441.
7 Ibid.,p. 441.
8 Ibid.,pp. 44r-442. SOUTH WEST AFRICA
increasing, and what is more to the point their cattle are increasing
by tens of thousands annually. They neither slaughter, nor sell, to
any extent worth naming, and consequently they must soon either
have fewer cattle or more land to graze them on. They will probably
prefer the latter alternative, and then, the land must be taken from
some other tribes, and their cattle posts are pushed even beyond
their own boundaries already 1."
"The Damaras [Hereros] are behaving very badly-never before
so bad-and want to provoke a war. Their treatment of John Afri
kaaner is a proof of this. I expect every day to hear that they have
fallen upon him and massacred every man, woman and child in
Windhoek 2."
40. In the circumstances, it is not surprising that various incidents 3
took place which sparked off general hostilities. In August 1880 some
Herero, after receiving a report that the Namas were preparing for
battle, shot down ail the inhabitants of a Nama village. The Herero
commando was followed and most of its members killed 4. When Maha
rero heard of this, he had all the Nama living at Okahandja murdered
during the night of 22 August 1880, and gave orders that all Namasin the
country were to be extenninated s.
The whole country was plunged into bloodshed. The British officials
fled to safety, and the Herero hordes attacked and killed Namas wherever
6
they could find them • However, the Namas were also successful in a
number of battles in September 1880 7•
41. On 28 October 1880 a devastating battle was fought on the
Olifants River near Okangondo. Many Herero warriors fell, and thou
sands of Herero cattle were captured 8•
42. The Namas had now been organized into two main forces. One
was under the leadership of Jan Jonker. and consisted of men from a
number of Nama tribes, as well as the Basters of Rehoboth. A second
force was established at Seeis under Moses Witbooi 9•
Jan Jonker's force attacked Barmen in December 1880, and, despite
fierce opposition, it routed the Herero who were there and captured all
their cattle. After the battle the night was given over to the celebration
of victory, but before dawn a fresh Herero force attackcd the Namas,
d~feating them decisively 10. Jan Jonker escaped, and thereafter kept
himself busy with cattle raiding u.
1 J\Iusgrave to Secretary for Native Affairs,9 June 1880, KA. 288.
z Pa/grave lo Bright. 13 June 1880, N.A. 288.
3
Vide Report by F. Heidman11, Rehoboth, 14 Sep. 1880, Quellen 'H, pp. 155,
157-158; Vedder, op. cit.,pp. 452-457; Official Journal of the Secretary of the Trans
gariep Comm·ission, Minutes, 21 Sep. 1880, N.A. 288; Report by F. Judt, Okahandja,
14 Sep. 1880, Quellen 7, p. 40.
• Vedder, op. cit., p454.
5 Ibid.,pp. 454-455; Chro11ikOtjimbingwe, 1880, Quellen 1, pp. 99-100; Report by
F. Judt, Okahandja, 14 Sep. 1880, Quellen 7, p. 40.
6Chronik Otjimbingwe, 1880, Quellen r, p. 102; Vedder, op. cil.,p. 458.
7
Vedder, op. cit.p. 458; !rie to Pa/grave, 20 Dec. 1880, KA. 288.
8 Vedder, o-p.cit.•pp. 458-459.
9 Ibid.,pp. 459-46o.
10 Vedder, pp. 461-462; Chronik Otjimbingwe, 1880, Quellen 1,p. 100; Letter by F.
Meyer, Otjikango (Barmen), 19 Dec. 1880, Quel/en 27, pp. 6-7.
11 Vedder, op. cit.,pp. 463-464. COUNTER-MEMORIAL OF SOUTH AFRrCA
Maharero followed up his success against Jonker by sending an army
.against the other Nama force under Moses Witbooi. A battle was fought
<m23 and 24 December 1880, and the Namas were forced to retreat when
their ammunition gave out. Witbooi, however, immediately started
making arrangements for a new onslaught 1•
43. In the meanwhiie cattle raiding and marauding expeditions con
tinued unabated. The warfare was bitter and cruel, and grave atrocities,
·Ofwhich examples may be found in contemporary reports of missionaries,
were common .
44. Towards the end of 1881, Moses Witbooi, together with Jan
Jonker, had at last collected a strong force, but Maharero had also not
been idle. The two armies met in November 1881 at Osona, and the
greatest battle that had yet been fought in South West Africa then took
place. The Nama were utterly defeated, and lost ail their wagons, horses,
-ammunition and a large number of men. The way to Windhoek and
3
beyond was strewn with Namas who had died of their wounds • Com
pletely defeated, Moses Witbooi returned to Gibeon. Jan Jonker left
Windhoek, and sought refuge in the Gansberg 3,whence he thenceforth
-carried on raiding operations.
45. While the major forces of Nama and Herero were fighting, the
Swartbooi Namas, who in years gone by had been the only Nama
allies 4 of the Hereros, were also harassing them and raiding their cattle s.
46. Various attempts were made by missionaries to negotiate peace
treaties, and although some such treaties were signed, they were on the
6
whole ineffective • Nevertheless, Jan Jonker was incensed with Her
manus van Wyk for concluding a peace treaty with the Hereros, and
launched a successful attack on Rehoboth, burning down half the village
and capturing many cattle 7•
47. After the attempts at peace, the Territory was in a worse state
-ofunrest than it had ever been before. Raids, robbery and murder were
8
daily occurrences • Various requests for protection were made to the
British Government 9•
Since the British Government had decided in 1880 to restrict its
responsibilities to the Walvis Bay territory 10, the Resident Magistrate
was powerless. He did, however, put a stop to the sale of anns and
ammunition in Walvis Bay u. This had no noticeable effect on thé
1
Vedder, op. cit., pp. 464-465; Report by E. Heider, Hoachanas, Quellen 6, 3 Jan.
1881, p.61.
2 See for instance Report by F. Rust, Gibeon, 6 Jan. 1881, Quellen 17, p. r3 and
Report by F. Heidemann, Rehoboth, 9 June 1881, Q11ellen 21,p. 206.
3 Vedder, op, cit., p465.
• Palgrave's Report, p. 18.
$ Chronik Otjimbingwe, 1880, Queflen r, pp. 100-102; Diary, Station Okahandja,
Dec. 1881, Qitellen 28, p. 4.
6 Vedder, op. cil., pp.465-470.
7
Ibid.,p. 469.
8 Report by F, Meyer, Otjikango, 23 Feb. 1883, Quellen 27, p. 35. .
9 Vide Petition of P. Haibib for annexation of rest of his territory,5 Jan. 1883,
N.A. 290; Hermanus van Wyk to Resident Magistrate, 31 Jan. 1883, KA. 290.
lO c. 2754, p. 8.
11 Resident Magistrate Whindus, Walfish Bay, to Under-Secretary for Native Affairs,
4 Jan. 1883, p. 3, N.A. 290; Wkindus to Unde.r-Secretm•y for Native Atfairs, 6 Jan,
1883, pp. 3-6, N.A. 290; Resident klagistrate Simpson to Under-Secretary for Native
AQairs, II Oct. 1883, N.A. 290. SOUTH WEST AFRICA
hostilities, which continued uninterruptedly. Both the reports of the
Resident Magistrate at Walvis Bay, and those of missionaries, were
full of accounts of battles, thefts and atrocities. Thus men, women and
children were dismembered, scalped, or throttled 1•The Resident .!Vlagis
trate for instance recounted an incident where~
"... three prisoners were captured by the Damaras [Hereros], one
of them was skinned and quartered, cooked in a pot and the remain
ing prisoners were compellcd to partake of the flesh, living on it for
three days 2".
J. German Acquisition of South West Africa
48. As has been noted, the British Government had decided in 1880
to restrict its responsibilities to the Walvis Bay settlement 3• At about
the same time, a German merchant, F. A. E. Lüderitz, was contem
plating the establishment of a business enterprise on the coast of South
West Africa 4.In November 1882 he informed the German Government
of bis scheme and requested its protection for his proposed enterprise 5•
This led to involved diplomatie activity 6 between Germany and Great
Britain, which was still in progress when Lüderitz commenced his scheme
by purchasing from the Nama chief, Joseph Frederick of Bethanie,
the Bay of Angra Pequena Qater called Luderitzbucht) and a lengthy
strip of arid coast on 1 May and 25 August 1883, respectively 7•
49. Despite Lüderitz's acquisitions, the diplomatie negotiations be
tween Germany and Great Britain dragged on 6• Eventually, before
finality had been reached, Bismarck instructed the German Consul in
Cape Town on 24 April 1884, that Lüderitz and his settlement were
under the protection of the German Empire 8• In September 1884 a
German Protectorate was proclaimed in South West Africa, and on
22 September 1884, the British Government "decided to acquiesce in
the action of the German Government and to welcome Germany as a
neighbour .. .9"
50. Thus, with the exception of Walvis Bay 11 which was recognized
' Vide Resident Magistrale Simpson to Andries Lambert, 10 Sep. 1883, N.A. 290;
Resident 11,!agistrate Simpson to Under-Secretary for Native Afjairs, 1 ~fay 1884,
pp. 11-12, N.A. 291: Report by F. Meyer, Otjikango, g Oct. 1884, Quellen 27, p. 60;
Report by ]. Barn, Bethanie, r3 Nov. 1884, Quel/en 4, pp. 44-45; Report by F.
Heidmann, Rehoboth, 24 Oct. 1884, Quellen 22, p. 300.
2 Resident lvlagistrate Simpson lo Under-Secretary for Native Afjairs, 1May 1884,
pp. 1-3, N.A. 291.
3 Vide para. 47, supra.
• Hintrager, C.• Südwestafrika in der deutschen Zeit (1955), pp. 7-8.
5 Ibid.,p. 10; C. 4265, p. 12.
6 C. 4262, pp. 7-11. 39-44; C. 4265, pp. 3-7.
7 C. 4262, p. 68; C. 4190, pp. 10, 32.
8 C. 4262, p. 9; Headlam, C., "The Race for the Interior", in The Cambridge
His9ory of the British Empire, Vol. VIII, p. 517.
C. 4265, p. 6: C. 4262, pp. 36, 50.
10 As well as certain islands off the coast which had been annexed by Britain some
years previously-vide British Letters Patent of 27 Feb. 1867, in C. 4262, pp. 73-74. COUNTER-MEMORIAL OF SOUTH AFRICA
as British Territory 1, the way was open for Germany to establish her
authority effectively over the territory of South West Africa. This was
done by the conclusion of treaties of friendship and protection with the
various Herero, Baster and Nama chiefs as follows:
(a) on 2 September 1885, with Manasse of Hoachanas, a Nama leader;
(b) on 15 September 1885, with Hennanus van Wyk, the leader of the
Rehoboth Basters;
(c) on 21 October 1885,with Maharero at Okahandja;
(d) on 3 November 1885,with Manasse of Omaruru, a Herero chief;
(e) on 21 August 1890, with Willem Christian of Warmbad and Jan
Hendriks of Keetmanshoop, two Nama leaders;
(!) in 1894 with other Nama tribes, namely that of Simon Koper of
Gochas and the Swartboois of Fransfontein (after they had asked
for treaties) ;
(g) it was not until after his defeat by the Germans that Hendrik
Witbooi was induced to sign a treaty on 14 September 1894 2•
51. Dr. Heinrich Goring was appointed Reichskommissar for South
West Africa and he arrived towards the middle of 1885 at Angra Pequena
(the present Luderitz) with a small staff of officials to assist him. In
Octol:ier1885 he made Otjimbingwe his headquarters 3.
K. The Wars between Hendrik Witbooi and the Herero
52. While South West Africa was the subject of diplomatie activity
in Europe, Moses Witbooi at Gibeon was again preparing for war against
the Herero. His son Hendrik was, however, filled with visions and ideals
of a promised land 1ying to the north of the Herero to which he considered
himself destined to lead his people. His views caused a split between
him and his father 4.Hendrik collected a band of his own followers, and
.,tarted moving northwards. In June 1884 he was attacked by Maharero,
but after a day's shooting, peace was negotiated at Onguheva. Inter alia,
:itwas agreed that Hendrik Witbooi would be given a free passage to the
north 5•
53. Hendrik Witbooi returned to Gibeon as a victor having succeeded
(without being a chief) in doing what the Nama chiefs had been trying
to accomplish for a long time 6•
He now started to make preparations for his march to the unknown
7
promised land in the north • In the middle of July r885 he set out, with
all his people, in the direction of Rehoboth and after his arrival there,
he wrote to Maharero that be was "coming to confirm the peace of
1 Vide Proclamation of rz Mar. r878, as confirmed by Letters Patent, 14 Dec.
1878.
2 Vide para. 72, infra; Headlam, The Cambridge History of the British Empire,
Vol. VIII, p. 517; Vedder, H., The Cambridge History of the British Empire, Vol.
VI3I, pp. 694-696; Vedder, op. cit.pp. 503-504.
Hintrager, op. cil.p. 19; Vedder, "The Germans in South \Vest Africa, 1883-
1914", in The Cambridge History of the British Empire, Vol. VIII, p. 695.
4 Vedder, op. cit.pp. 479-480.
3 Ibid., p. 483; Die Dagboek van Henifrik Witbooi, Kapteîn van die Witbooi
Hottentotte, 1884-1905 (1929), pp. 6-10.
6 Vedder, op. cit.pp. 483-484.
1 Ibid., p.484.366 SOUTH WEST AFRICA
Onguheva, and to pass through to the north, in accordance with the
promise which Maharero had given him 1,"
Maharero replied that he was prepared to observe the terms of their
agreement, but that he was surprised that Hendrik had not kept his
promise, viz., that he would do his utmost to persuade the other Nama
chiefs to make peace with Maharero. Maharero then suggested that
he and Hendrik should meet at Osona to negotiate further 2•
Hendrik Witbooi and his followers arrived at Osona in October r885.
Although the two chiefs greeted each other in a friendly fashion, Maharero
would not allow the Witboois free accessto the watering-place.
"It went against the grain of the Witboois ... to be ordered about
by the Hereros. Those who were drawing water tried to take pos
session of the waterhole and the Hereros beat them back ."
In a moment large-scale fighting took place but as the Witboois were
overwhelmed by a force twice their size they had to flee. Their wagons,
oxen and horses fell into the bands of the Herero 4•
54. Hendrik Witbooi was furious, and immediately prepared for war.
It was some tune before he had collectetl a strong force consisting of
his own followers, the Topnaars, Grootdodens, Veldskoendraers and
the unruly elements amongst the Basters. Although l\laharero had been
waiting for Hendrik's revenge for months, he and his people were
caught by surprise when Hendrik attacked the sleeping inhabitants of
Okahandja on I7 April r886. However, the Hereros managed to get
into their well-prepared fortifications and succeeded towards evening
in driving the Namas back and even in surrounding them 5• During
the night the Witboois escaped but the Hereros pursued them. Further
running :fights took place at Otjiseva, Otjihavera and at Okapuka.
The Hereros finally overran the camp of the Witboois at Nanas, and
followed them as far as Hoachanas. Hendrik was badly defeated and
had again lost everything 6•
55. The only way in which Hendrik Witbooi could continue his
fight against the Herero was by seeking out some mountain fastness,
from which he could make lightning raids against them. This was the
method which Jan Jonker had been employing successfully for a num 4
ber of years. Hendrik Witbooi found such a retreat at the Gansberg, and
wrote to Maharero that he proposed making war against him in the
same manner as Jan J onker did 7•
In April I887 he attacked Otjumbingwe and "he took from the
inhabitants ... everything which they had acquired through years of
1Vedder, op. &it.,p. 485.
z Ibid., pp.485-486; Witbaoi to Maharero, 27 June 1884, Die Dagboekvan Hanàrik
Witbaai (1929), pp. 9-10; Witbaai la Maharera, 13 Oct. 1885, Die Dagboek van
Hendrik Witboai (1929),p. 12.
3 Vedder, op. cit., pp486-487.
4 Ibid., p.487; Wilbaai ta Maharera, 19 Oct. 1885, Die Dagboek van Hendrik
Wilbaoi (r9:z9),pp. IZ-13; Witbaai ta Heidmann, 20 Oct. 1885, Die Dagbaek van
Hendrik Wilbaai (1929),pp. 13-14; Wilbaoi to Makarera, 30 Oct. 1885, Die Dagboek
van Hendrik Witbaoi (1929), pp. 15-16.
5 Letter by Ph. Diekl, Okahandja, I9 Apr. 1886, Quûlen 27,pp. 102-103.
15Vedder, op. cit., pp. 490-491; Report by W. Ei&k, Okahandja, 24 Apr. 1886,
Quellen 28, pp. 52-56.
7 Vedder, op. &it.p. 491. COUNTER-MEMORIAL OF SOUTH AFlUCA
careful industry". More than a thousand cattle were carried off. Dr.
Goring, the German Commissioner, was at the time at Walvis Bay 1.
Another attack was made in June of the sarne year. Otjimbingwe
was kept under fire from early in the moming until late in the after
2
noon. A herd of cattle was carried off •
In retaliation, Maharero despatched a force under one of his best
commanders to bring Hendrik Witbooi to bay. The Hereros arrived at
the Gansberg and saw the light of fires between two mountain ranges,
but were led into an ambush and forced to flee. \Vhen they returned to
Okahandja, Maharero's warriors "declared that they wouJd never march
out against them [the WitbooisJ again into that terrible neighbour-
hood" 2• .
In the years that followed Hendrik Witbooi made many attacks
and raids on the Hereros. Thousands of Herero cattle were carried off
into Hendrik's mountain fastnesses •
56. As has been seen, Maharero had placcd himself and his people
under German protection on 21 ûctober 1885. However, the repre
sentative of the German Govemment, Dr. Goring, who had been in
the territory since 1885, had no military force at his disposai and was
powerless to provide any protection against Hendrik Witbooi's inces
sant raids. In addition, Maharero was subject to the constant influence
of a British trader, Robert Lewis, who resented German penetration
into South West Africa. Finally, in ûctober 1888, Maharero renounced
his treaty of protection with the Germans. At the same time Lewis
had arrived at Okahandja with a staff of 15 and he prodnced a treaty
concluded with Maharero dated 9 September 1885, in terms of which
Maharero had transferred almost ail his rights as chief to Lewis. Dr.
Gôring and his staff then withdrew from Otjimbingwe to WaJvis Bay 4•
L. The Wars Between Hendrik Witbooi and Other Namas
57. During the period in which Hendrik Witbooi was engaged in
successful guerrilla warfare against the Hereros, he was encountering
severe and effective opposition from members of his own nation. His
first major dispute with other Namas arose out of events in his own
former tribe, i.e., that of his father, Moses Witbooi. In 1885 dissension
set in between Moses Witbooi and his uncle Paul Visser, which finally
resulted in a clash between the factions led by these two men, in which
Visser was successful. l\foses was taken prisoner. In August 1887 Moses
wrote a letter to Manasse of Hoachanas requesting his assistance, but
when Manasse tumed up,"Moses had already resigned his chieftainship
in favour of Paul Visser and had been released. Hendrik Witbooi was
at first too occupied to render his father much assistance, but he induced
the opposition chief of Hoachanas and the disloyal section of the Red
Nation to attack Paul Visser. Visser, however, defeated them in a num
'berof battles.
Hendrik was then left to fight for the "throne of Gibeon'' alone.
He found in Paul Visser an obstinate and resoluté opponent and on
1
2 Vedder, op.cit.,p. 491.
3 Ibid.,p.492.
Ibid., pp. 492-493.
• Ibid., p. 502; Hintragerop.cit.,pp. 23-24. 368 SOUTH W~ST AFRICA
several occasions he had to run for his life. Even aiter his father's
followers had joined him he could not succeed in conquering Visser 1,
58. While he was thus engaged in trying to bring Paul Visser to
heel, Hendrik Witbooi suddenly decided to attack the Grootdodens
who had annoyed him. He destroyed their dwellings and carried off
ail their stock; he killed the women and children and even had their
dogs destroyed, practically annihilating this whole tribe 2•
This action was followed up by an attack on Arisemab, the chief of
the Veldskoendraers, who was well-disposed towards Paul Visser. Arise
mab was wounded, and begged Hendrik Witbooi to spare bis life,
but Hendrik himself shot Arisemab dead 2•
Although Paul Visser came onto the scene and drove Hendrik Wit
booi away, he had corne too late to save Arisemab's life. The Veld
skoendraers then urged him to march against Moses \Vitbooi who was
in the district of Berseba. They told him that Arisemab was killed J.
because he, Paul Visser, was too slow and he could now only absolve
himself by killing Moses, Hendrik's father. Paul Visser agreed. They
capturcd Moses and took him to Gibeon in February 1888, where he
and one of bis councillors, Adam Klaase, were accused of "high treason"
and sentenced to death. They were both shot 3•
59. Jan Jonker and Hendrik Witbooi, both arch-enemies of the
Hereros, never developed a liking for one another • Jan Jonker was
glad to hear of l\!oses'death and he wrote to Paul Visser that he would
now forget about anything else and join him in an attack on the Hereros.
After the Hereros were properly humbled, they could jointly march
against Hendrik Witbooi 5•
60. Hendrik Witbooi went to Gibeon in July 1888 to visit his father's
grave and to avenge his death. On 12 July 1888, while Hendrik was
proceeding towards Paul Visser's headquarters at Gîrichas, Visser
was on his way to Gibeon. Hendrik discovered Paul Visser's commando
first and placed his men undcr cover on both sidcs of the road by which
Visser's troops were travelling. Hendrik caught them unawares and
the first man to be killed was Paul Visser, shot by Hendrik himself.
Hendrik defeated Visser's force, destroyed his headquarters and burnt
6
everything that was not useful and which he could not take with him •
61. From October 1888 Hendrik Witbooi was continuouslv on the
war-path against Marrasse of the Red Nation, whom be finally suc
ceeded in routing in August 1889 7•
There remained only Jan Jonker to dispute Hendrik Witbooi's pre
dominance. To add to the antipathy between these two men, Hendrik
1 Vedder, op. ât., pp.494-497.
2 Ibid., p496.
3 Ibid.,pp. 496-497; Witbooi to Olpp, 3 Jan. 1890, Die Dagbcek van Hendrik
Witbooi (1929),pp. 67-68.
4
Vedder, op. cit., p493.
s Ibid., p497.
6 Ibid., pp.497-498; Repo,t by F. Rust, Berseba, II July 1888,Quellen 29, p. 170.
1 Die Dagboek van Hendrik Witbooi (1929), pp. 34-38; Heidmann te Bôhm, 15
Aug. 1889, Quellen 22, p. 349; Witbooi to Gifring,II Apr. 1889, Dia Dagboek van
Hendrik Witbooi (1929),p. 32; Witbooi to Manasse, 10 Dec. 1888, Die Dagboek van
Hend,ik Witbooi (1929),pp. 19-21. COUNTER-MEMORIAL OF SOUTH AFRICA 369
Witbooi had discovered arnongst Paul Visser's possessions Jan Jonker's
letter suggesting joint action against Hendrik 1•
62. In the beginning of August 1889 Jan Jonker set out with ail
his possessions to escape Hendrik's fury, but Hendrik learnt of his
füght and followed him 2• When the two forces met, a tierce battle
ensued. Before the issue had been settled, the fighting was interrupted
to enable the two sides to attempt to agree on armistice terms. While
the negotiations were proceeding, Jan Jonker was treacherously shot
by his illegitimate son who was a follower of \Vitbooi. Thereafter the
remnant of the once powerful Afrikaner tribe fled into Hereroland.
Maharero gave them Kuandua in which to live, where they stayed
until 1897, when almost ail of them <liedof malaria 3•.
63. Hendrîk Witbooi almost immediately went south and continued
to attack and kill remnants of his Nama enemies. Bad news from the
north, however, forced him to leave the south. The Hereros and some
·of Manasse's men 4 had attacked his headquarters then situated at
Homkrans and had killed and captured a large num_ber of his people,
including women and chiidren. It must have been clear to Maharero
that Witbooi V"'"lrl never leave the matter at rest 5.
M. The Extension of Effective German Control Over South West Africa
64. It wi11 be recalled that Maharero, under the influence of the
trader Lewis, cancelled the treaty of protection with Gennany in Octo
ber 1888 as a result of the inability of the Germans to afford him any
protection against Witbooi 6.
Early in 1889 a Protectorate Force arrived under the command of
Captain C. von Francois, who first occupied Otjirnbingwe •
In August 1889 von Francois heard that Lewis was planning unrest
and he had an order of expulsion served on him 8•
In the sarne month, he established a fortified post at Tsaobis (Wil
helmsfeste) on the road to Walvis Bay s.
In January 1890 43 more soldiers arrived as reinforcement for von
Francois' troop 9,
Maharero now had reason to reconsider the question of his treaty
with Germany. Witbooi was seeking his life, and he needed assistance,
which the Germans could now provide, to somè extent at least. On
20 May 1890 von Francois and Dr. Goring visited Maharero and the
10
latter renewed his former treaty .He also asked the German authorities
to assist him against Witbooi. Dr. Goring wrote to Hendrik Witbooi
1 Vide para. 59, supra; Vedder. op. cit.,pp. 493, 498; Witbooi to Olpp, 3 Jan.
1890, Die Dagboek van Hendrik Witbooi (1929), p. 68.
2 Vedder, op. cit., p499.
3 Ibid., pp. 499-500; Resident 1vlagistrate, WalfishBay to Cape Govermnent,
25 Sep. 1889, N.A. 293; Heidmann to B6hm, 15 Aug. 1889, Quel/en 22, pp. 349-351.
~ Of the Red Nation-vide para. 61, supra.
~ Witbooi lo JVaharero and Manasse, 5 Jan. 1890, Die Dagboeh van Hendrih
Witbooi (1929), pp. 69-7r.
6 Vide para. 56, supra.
7 Vedder, op. cil.p.502; Hintrager, op. cit.p. 26.
8 Hintrager, op. cit., p. 27.
9 Ibid.,p. 28.
10 Ibid.,p. 24. SOUTH WEST AFRICA
in May 1890 presenting him with an ultimatum which threatened action
if he failed to stop his hostilities against the Herero 1• The reply was
a defiant refusai 2•
65. lt was apparent to Witbooi, as it must have been to Dr. Gôring,
that the German force was far too weak to enforce the terms of the
ultimatum. Hendrik Witbooi duly expressed bis view by an attack on
the Hereros at ûtjituezu in July 1890, in which he looted several
thousand head of cattle 3• Thereafter he canied on severnl raids in the
following months, even attacking Otjimbingwe where there were Ger
man officiais, in September 1890, and passing with his commando
within a short distance of the German fort at Tsaobis.
Towards the end of September 1890 he attacked Okahandja, losing
many men, but "butchering many Herero women and children" 4.
Maharero died on 7 October 1890. His son Samuel Maharero suc
ceeded him 5•
66. Dr. Gôring departed from South West Africa in August 1890
]eaving von Francois in charge 6.
Von Francois thought that a conflict with Hendrik \Vitbooi was un
avoidable, and requested the German Government to send adequate
reinforcements. As bis position at Tsaobis was not suitable for the
prevention of Witbooi's raids into Damaraland, he determined on the
establishment of new military posts in the area considered by the Ger
mans as "No-mansland" between Okahandja and Rehoboth. He decided
on Windhoek, which had been deserted since Jan Jonker's tribe fled
from it in 1881, as his headquarters, and took possession of Heusis
as a cattle post. The civil offices of the Administration remained for
the time being at Otjimbingwe, while the troops established themselves
at Windhoek in October 1890 7•
67. In May 1891, Hendrik Witbooi wrote to Samuel Maharero ask
ing him whether he was not yet tired of war and prepared to make
peace. He himself had been quiet since the beginning of the year, but
the tone of his proposals was such that the Herero refused to treat
with.him 8•
ln September 1891, Witbooi led his commando to Okahandja, but
had to retire after several successes on account of the exhausted state
of his horses. This retreat gave fresh courage to the Herero, and a
Mbanderu commando marched on Gibeon, which it attacked without
being able to take the place or much booty. Witbooi retaliated, and
took 2,000 head of cattle east of ûkahandja in November 1891. In the
following month he attacked the miserable remnant of the Red Nation
at Hoachanas, and marched in the direction of Seeis, with the object
of punishing the Mban<leru for their attack on Gibeon. While on the
march he received a letter from the chief of Otjimbingwe, which changed
1 Hintrager, pp. 24-25.
2
Witbooi to GorintJ, 29 May 1890, Die Dagboek van Hemirik Witbooi (1929),
pp. 73-77.
3 Hintrager, op. cit., p. 25.
4 Resident J\fogistrate, Walfish Bay, to Cape Government, IIOct. 1890, N.A. 293-
5 Vedder, op. cit.,pp. 506-507.
6 Hintrager. op. cit.'. p. 25.
1 Ibid., p. 29.
9 U.G. 41-1926, para. II4, p. 40. COUNTER-MEMORIAL OF SOUTH AFRICA 371
his course. In this letter the Herero chief had called him a Bushman,
and he turned towards Otjimbingwe, which he attacked on 31 Decem
ber 1891, taking many cattle. He retumed with his Ioot to Hornkrans,
marching past the German fort at Tsaobis 1•
In February 1892 he resumed his expedition against the Mbanderu,
but was defeated at Otjihaenena with heavy losses. In the following
April the Hereros invaded Hornkrans, but were unable to take the
stronghold 1•
68. By this time a prohibition on the traffic in firearms which had
been ordered by von Francois some time previousiy, made itself felt,
both Hereros and Hottentots running short of ammunition. The terri
tory occupied by the Germans had been the corridor through which
_the hostile tribes sent their forces, and the Germans had so far been
powerless to prevent this. The Commissioner now decided to pay a
visit to Hendrik Witbooi at Hornkrans to induce him to conclude
peace and to accept a German Protectorate. By making liberal promises
and by offering to recruit a certain number of the tribe for service with
the German troops, he succeeded in winning over Witbooi's councillors.
However, Witbooi himself saw no advantage in subscribing to a treaty
of protection such as von Francois proposed, and again refused von
Francois' offers 2•
69. Von Francois thereafter decided to approach the Hereros with
a view to launching a combined attack against Witbooi. He negotiated
with Samuel Maharero, who agreed to join him on a certain date with
a Herero commando. Samuel Maharero did not keep his appointment,
making the excuse that he could not assemble his men in time. It
appears that Witbooi had received news of von Francois' visit to
Okahandja, and had promptly offered to make peace with the Hereros.
After various negotiations, peace was concluded at Rehoboth in Novem
ber 1892. Witbooi, however, mocked at this peace which he called a
"blou vrede" (blue peace) that is to say a false peace which meant
3
nothing •
70. Von Francois was now faced with the possibility of united action
against the Germans on the part of the Hereros and the Namas. Further
reinforcements were called for and in April 1893 von Francois' troops
attacked Hornkrans. The surprise, however, failed. Witbooi and most
of his fighting men es'caped.The German troops returned to Windhoek,
and there received news that Witbooi had captured their spare horses
from a neighbouring fann, and had taken 120 horses from a German
trader who had imported them from Griqualand for the Protectorate
authorities ~.
The guerrilla war which followed went, on the whole, in favour of
\Vitbooi, whose reputation among the other tribes was growing steadily 5•
71. On I January 1894 Major Leutwein arrived from Germany and
took persona! command of half the German forces in the country.
Leutwein left von Francois to watch Witbooi, while he proceeded
1 U.G. 4r-r926, para. r 14, p. 40.
2 Ibid.,para. r r5, p. 40.
3
Voigts, G., iDie Dagboek van Hendrik Witbooi (1929), p. xviiU.G. 4r-1926,
para. 115, p. 4r.
+ Hintrager, op. cil.p. 33;U.G. 41-1926, para. rr7, p. 4r.
' U.G. 41-r926. para. rr7, p. 4t.372 SOUTH WEST AFRICA
against the tribes in the eastern portion of the Protectorate. Andries
Lambert, the chief of the Khauas Hottentots, was taken prisoner at
Naosanabis, and executed for the murder of a trader and several
1
Bechuanas .
. A treaty of friendship and protection was next concluded with his
successor, Eduard Lambert. Thereafter ·a visit was paid to Simon
Koper, the chief of the Franzmann Hottentots, at Gochas, and a similar
treaty concluded with him. Military posts were established at Gibeon,
2
Berseba and other places •
ln the meantime, von Francois had established similar posts at Keet
manshoop,.Bethanie and Warmbad 3.
72. Leutwein took command over the urùted forces in July 1894
while von Francois proceeded overland to Cape Town on home leave.
Leutwein thereupon became Governor. He retumed to Windhoek, where
he concentrated his troops and prepared for a decisive blow against
Witbooi. As his force was not strong enough, he requested further
reinforcements. The reinforcements arrived in July 1894, and on 27
August 1894, he attacked the Witboois in the Naukluft with three com
panics, aggregating over 300 men with two-guns, and a Baster contin
gent of 50 men. The occupation of Witbooi'sstronghold took two weeks,
the German losses being 27 per cent. of their total strength •
Witbooi realized that he could not continue the fight, and on 15
September 1894, he concluded a treaty of friendship and protection
with Leutwein. The \Vitboois evacuated the Homkrans region in ac
cordance with the peace treaty, and were granted a reserve at their
former home at Gibeon. The tribe kept the peace until 1904, and fre
quently assisted the Germans against other groups 5•
73. Leutwein proceeded to establish military posts in Damaraland,
first at Okahandja, ostensibly to protect Samuel, who had been recog
nizcd by the German authorities as paramount chief of the Hcrero,
against the intrigues of his rival Riarua, and later at Omaruru, where
he induced Manasse, the local Herero chief (not to be confused with
Manasse, the chief of the Red Nation Nama), to cede Okombahe to
the German Government, for the use of the Bergdama 6•
A demonstration against the chiefs of the eastern Hereros, who were
disregarding the southem boundary agreement concluded between
Samuel Maharero and the German authorities, resulted in their acknow
Jedging Samuel Maharero as the paramount chief, and posts were
established at Seeis and Oas to guard the boundary. Assisted by Samuel
Maharero, the Germans made a demonstration in force through the
Herero area, visiting the various chiefs. The impression made upon
the Hereros by this display of force was not lasting. In March 1896
trouble broke out amongst ·the eastern Hereros and some Khauas
Namas. The Khauas Namas were defeated on 6 April 1896 and lost
1 Report by F. Rust. Cochas, 4 Jan. 1894, Quellen 19, p. 28; Hintrager,op. cit.•
p. 35; U.G. 41-1926, para. 117, p. 41.
2
3Hintrager, op. cit.p. 35; U.G. 4,1-1920, para. II7, p. 4r.
U.G. 41-1926, para. 117, p. 41.
• Ibid.;Hintrager, op. cit.p. 36.
' U.G. 41-1926, para. ll7, p. 41; Hintrager,op. cit.pp. 36-37.
6 Vide Chap. II, para. 67 supra; U.G. 41-1926, para. 118, p. 41; Hintrager,
op. cit.p. 37. COUNTER-MEMORlAL OF SOUTH AFRICA 373
their leader on the battlefi.eld. Nikodemus, a leader of the Hereros,
was likewise defeated and fled towards the north. Reinforcements for
the German troops arrived from ail dire~tions, amongst them Hendrik
Witbooi with 70 men. At Otjuandja in the Epukiro area the eastern
Hereros were forced into an engagement. and on 6 May 1896 decisively
defeated 1•
In June 1896 a further contingent of 400 men arrived from Gerrnâ.ny
and Leutwein underlook another demonstration through the western
areas of the Hereros, establishing new military posts at Outjo, Groot
fontein, Otavifontein, Naidaus and Franzfontein. By the end of 1897
the total strength of the German forces in the Protectorate was 700 men 1.
In February 1898 the Swartboois (Namas) of Franzfontein were
defeated at the Grootberg and the whole tribe, 150 men, 400 women
and childten, removed to Windhoek 2•
N.'The Period 1898-1903
74. By 1898 the whole of the southem part of South West Africa
had been temporarily pacified, and the attention of the authorities was
turned to the economic development of the country, which had been
gravely retarded by almost a century of incessant hostilities as well as
by a severe rinderpest epidemic iri 1897. First priority was given to
communications, and in 1898 a start was made with the construction
9fa railway line between Swakopmund and Windhoek. By 1901 \Vind
hoek was in telegraphic communication with Germany and in 1902
the first train steamed into Windhoek station. At the same time; im
provements were effected to the harbour of Swakopmund and a regular
steamship service to and from Europe instituted.
75. The improvement of communications paved the way for German
settlement. Favourable prices and conditions were laid clown to en
courage Germans to settle in South West Africa. Between the years 1894
and 1903 the White civilian. populatîon increased from 803 to 3,701 3._
However, the relationship between the German authorities and the
Native peoples, particularly the. Herero, in time became increasingly
strained. I t would be out of place in a general survey like the present to
attempt to analyse all the i'easons for these deteriorating relations,
particularly inasmuch as they are largely in dispute amongst historians.
Reference may nevertheless be made to one vital factor since it assumed
importance also during the period of Mandatory Administration, and
that is that economic conceptions differed widely between the Hereros
and the Gerrnans. This rnanifested itself,interalia, in confücting daims
to land. Thus the Germans bought land from the chiefs, intending
thereby to obtain sole rights of property; but this concept was not
understood by the Herero, who resented being pievented from grazing
their cattle on land which they had sold. ·
: A further source of friction, which required attention also during
the period of mandatory administration, arose from the sale of goods
on credit. Many Herero were unable to resist the temptation to-incur
debts in this way, and German traders, seeking to secure payment 'of
1 U.G. 4r-1926, para. II8,pp. 41-42.
2 Ibid., par:II9,p. 42. ·
' Hintrager, op. cit., pp. 39-41.374 SOUTH WEST AFRICA
these debts, sometimes in ignorance of Herero traditions attached oruzo
or eanda cattle which, in tenns of Herero concepts, were not disposable
property but were held in trust for their descendants 1.
In order to protect the Natives against their proclivity for incurring
debts, the German authorities in Berlin issued a Credit Decree dated
2
23 July 1903 which provided that as from 1 April 1903 commercial
debts of Natives would become prescribed after one year. The Decree
was clearly intended to have a long-term favourable effect for the
Natives. But its immediate result was unfortunate: traders started
pressing their debtors for payment of debts, even those that had been
outstanding for years, and this further exacerbated the feelings of the
2
Natives •
O. The Wars of 1903-1907
J. THE BONDELSWARTS RISING 1903-1904
76. In 1903 serious trouble broke out among the Bondelswarts, a
Nama tribe. Abraham Christian had succeeded his father as chief of
this tribe in 1902. In October 1903 he became involved in a dispute
with the district officer at Warmbad, Lieut. Jobst, who led out police
to arrest the· captain. The Namas fired on the police patrol, killing
the district officer and two of his men. The garrison of Warmbad,
consisting of.II men, was next besieged by the Bondelswarts, and
troops were sent to its relief. Witbooi assisted the Germans with 80
men. The revolt became general amongst the Bondelswarts tribe who
were led by their new chief Johannes Christian. By the end of December
the Germans with 200 German and 300 Nama troops were operating
against the rebels, but the Herero rebellion, which broke out early
the following month prevented a decisive blow against the Bondel
swarts. Leutwein entered into negotiations with them and on 27 J anuary
1904, the peace of Kalkfontein was concluded, in terrns of which the
3
reserve of Warmbad was granted to the Bondelswarts •
II. THE HERERO-GERMAN WAR 1904-1906
77. \Vhile the Bondelswart rising was in full swing and all available
troops were gathered in the south, the Hereros seized their opportunity
and in the beginning of January 1904 Samuel Maharero gave an order
for all Germans to be murdered.
Okahandja was taken by the Hereros on II January 1904 and many
of the white inhabitants murdered before they could reach the safety
of the fort. \Vindhoek was also threatened, but was not actually
attacked. Other military posts were attacked by the Hereros, and some
of the smaller ones taken and the garrisons and other occupants killed.
Farmers to the number of 150 were murdered on the farms, these
destroyed and the cattle driven away. The relief of Okahandja was the
first signal success of the Germans. Captain Franke led a column by
1 VideChap. II, paras. 85, 8supra; Vedder, The Cambridge History of the British
Empire, Vol. VIII,p. 697; Vedder, The Native Tribes of South West A/rica (1928),
p. 169.
2Hintrager, op. cit.p. 47.
3 U.G. 41-1926, para. 120, p. 42; Vedder,The Cambridge Hist01'y ofthe British
Empire, Vol. VIII, p. 697. COUNTER-MEMORIAL OF SOUTH AFRICA 375
road from Gibeon to Okahandja and relieved the post on 27 January
1904. On the following day the Hereros were driven from Okahandja
and on 4 February 1904 Omaruru was relieved. Reinforcements now
began to arrive from Germany and on II February 1904 Governor
Leutwein assumed direction of military operations at Swakopmund
in persan 1.
78. After the preliminary actions and just prior to the main offensive
planned by Leutwcin, his successor Lieut.-General von Trotha arrived
in the Protectorate and took over the command in June 1904- Leutwein
left the Protectorate shortly afterwards having been its Governor for
II years. His successor immcdiately proceeded to prepare for a decisive
blow and on II and 12 August 1904 the Hereros were defeated v,·ith
heavy losses at Hamakari in the Waterberg. The Witboois as well as the
Basters were represented by contingents on the German side. The
majority of the enemy escaped towards the south-east into the arid
Omaheke or Sandveld, which was surrounded by a cordon of troops,
and the Hereros were gradually pressed on to the Kalahari 2•
By September 1905 the northern portions of the Protectorate had
been cleared of Hereros, and Dr. Friedrich von Lindequist, who suc
ceeded General von Trotha on 19 November 1905, as Governor, issued
a proclamation calling upon the Hereros to surrender at the mission
stations of Omburo and Otjihaenena. On 1 May 1906, the portion of
the Herero nation remaining in South West Africa, had surrendered 3•
III. THE NAMA-GERMAN WAR 1904-1907
79. During the first months of the Herero war the Bondelswart
Namas again became restless. They did not abide by the terms of the
peace of ·Kalkfontein 4 and had disturbed the eastern boundaries of
Namaqualand.
When the other Nama chiefs saw that this action of the Bondelswarts
went unpunished, they decidcd to join in the rebellion. Witbooi who
for over ten years had been a faithful ally of the Germans and had
placed a considerable number of his men at the disposai of the German
authorities in the Herero War, listened to the counsel of his under
captain and repudiated his treaty with Germany 5.
Von Burgsdorff, the district officer at Gibeon, hoping to avoid hos
tilities with Witbooi by a personal interview, went to him without a
guard, relying on his good personal relations with Witbooi. On the
way he was treacherously murdered. This happened in October 1904
and heralded the commencement of a general Narna uprising 6• How
ever, the Berseba Namas and a portion of the Bethanie Narnas remained
loyal to the German Govemment. The rebels collected around Rietrnond
and Kaikfontein with a strength of about 600 rifles, and it was not
1 U.G. 4I-1926, para. 120, p. 42; Vedder, The Cambridge History of the British
Empire, Vol. VIII,pp. 697-698.
z U.G. 41-1926, para. 120, pp. 42-43.
3 Ibid.,para. 120, p. 43; Hintrager, op. cit., p. 81.
4 Vide para. 76, supra; Vedder, The Cambridge History of the British Empire,
Vol. VIII, p. 700; U.G. ,p-1926, para. IZI, p.43.
5 Hintrager, op. cil., p65; Vedder, The Cambridg~ History of the British Empire,
Vol. VIII p. 700; U.G. 41-1926, para. 121, p. 43.
6 Vedder, The Cambridge History of the British Empire, Vol. VIII, p. 700. SOUTH WEST AFRICA
376
until November 1904 that the Germans were prepared to take the
offensive. The Witboois were defeated on 22 November 1904 and again
on 4 December 1904 1•
In the next year (1905} the fortnnes of war swayed to and fro, but
by the end of the year the superior equipment and discipline of the
German force began to tell. On 29 October 1905 Witbooi was run down
and killed in the course of a battle at Vaalgras-now called Witboois
ende 2•
80. In western Namaqualand a portion of the Bethanie Namas had
risen under the leadership of Cornelius, who at first had assisted the
Germans in the Herero war but had afterwards murdered a German
offi.cer. From October 1905 to January 1906 he successfully evaded
capture and put the Germans to heavy loss in the Tiras Mountains. In
February 1906 several decisive actions were fought against him along
the Aub River, and on 17 February 1906, Christian Goliath, the captain,
of the Berseba, succeeded in persuading some 160 men with 25 rifles
and 140 women and children to surrender. Cornelius was captured in
the following month at Heikoms with 86 men and 36 women 1.
81. The Bondelswarts continued to give trouble under their captain
Johannes Christian. From April to December 1906 the German forces
were continually on the heels of Johannes Christian. On 23 December
1906, through the intervention of the Rev. Father Malinowski of the
Roman Catholic Mission, the Bondelswarts agreed to surrender to the
authorities. The peace of Ukamas, early in 1907, marked the end of
the Nama war 1.
P. The Last :1::earo sf the German Period
82. German rule in South West Africa was firmly established in the
years between 1907 and 1914. The wars had necessitated the introduc
tion of thousands of troops into the Territory, and this had the effect
of bringing the country to the notice of the German public, whilst the
discovery of diamonds near Luderitzbucht in 1908 supplied a stimulus
to investment and immigration. Many of the soldiers, upon completion
of the campaign, settled in the Territory. In 1909 the German Govern
ment commenced the establishment of horse, cattle and sheep breeding
centres at Nauchas, Neudamm and other places.
During the wars, it was found necessary to commence the construc
tion of further railway lines from Luderitzbucht to Keetmanshoop,
Karibib to Tsumeb, and Windhoek to Keetmanshoop, and this work
was completed after the termination of hostilities.
The German Government followed an active land settlement policy.
Farms were granted to settlers on easy terms cf payment; money was
advanced them by a Land Bank supported by the Government, and
water-boring facilities were provided 3• •
However, by 1914 South West Africa was still not completely mde-
. U.G. 4r~1926, para. 121, p.43.
2Vedder, The Cambridge History of t/,e British Empire, Vol. VIIp. 701; U.G.
4r~r926, para. 12r, p. 43.
3Official Year Book of the Union and of Basutoland,Bechuanaland Proteclorate
and Swaziland, ~o. 3, 1919 (1920), pp. 876 ff. COUNTER-MEMORIAL OF SOUTH AFRICA 377
pendent fmancially, and its economy was heavily dependent on the
production and export of diamonds. Although much had been done
to widen the economic structure of the Territory, and particularly to
promote livestock farming, the centrnl problem of opening up the Terri
tory and developing its resources still remained unsolved 1•
Q. The Position of the Various Population Groups after a Century of Strife
J. THE 1NHABITANTS OF THE NORTHERN AND NORTH-EASTERN
PART OF THE TERRITORY
83. As has been noted in Chapter II, supra, the interminable blood
shed in the central and southern parts of South West Africa had no
effect on the Ovambo, the tribes along the Okavango, or the inhabitants
of the Caprivi Zipfel. It is interesting to note that the Ovambo popula
tion, which had been estimated by Palgrave at 98,000 in 1876 2, had
increased to about 150,000 towards 1928 3•
II. THE. HEREROS
84. The Hereros suffered severely in their wars with the Namas and
the Germans. Thus in 1874 Irle had estimated their number at 90,000 4
and Palgrave in 1876 at 84,000 5, whereas official German figures in
1912 showed only 19,721 6•lt must be kept in mind, however, that after
their defeat at the bands of the Germans in 1904, substantial numbers
left Son th West Africa to settle in Bechuanaland or the Transvaal 7•Others
fl.edto Angola, but returned after 1915 and settled in the Kaokoveld 8•
After the war, the German authorities took severe steps in retribution
against the Herero 9. Ail tribal lands were confiscated 10 and the chief
ships abolished. In 1907, the Herero were prohibited from owning
cattle 11•
After a century of warfare, the Hereros were thus dispersed over the
Territory, and their traditional economic, social, political and religions
institutions, which were all dependent on the possession of cattle, to a
large extent broken np. They were forced to gain their livelihood by
1 Official Yea, Book, op. cit.,pp. 903-90_,;.Vide also the more detailed treatrnent
d the suhject in Respondent's reply to Applicants' allegations regarding the
economic aspects of the Mandate.
2 Palgrave's Report, pp. 48-49.
3 Vide Chap. li, para. 33. supra.
~ Irle,op. cil.,p.52.
5 Palgrave's Report, p. 53.
6 Die deutschen Sc.htd:gebiele in A/rika und der Südsee, r9rz/I9IJ, Statistischer
Teil, p. J6.
1 Haile~',op. cit.,p. 23.
8
van \Varmelo, op.cit.,p. r r.
g Again, the question whethcr these steps were justified or not, falls outside the
scope of the present survey, and has given rise ta considerable controvf'rsy, even
in Germany at the time-vide Hintrager, op. cil.p. 92.
10Die deutsche J<otonial-Geselzgebung, Sammlung der auf die deutschen Schutz
gebiete bezüglichen Gesctze, Verordnungen, Erlasse und internationa\en Vereinba
rungen mit Anmerkungen und Sachregister, Neunter Band (Jahrgang r905), pp.
::84-286; Zehnter Band (Jahrgang r906), pp I4'2, 298.
11 Hailey, op. cit., p. 23. SOUTH WEST AFRICA
working for others. A result of their changed circumstances was that
Christianity gained favour among the Hcrero 1• Thls, however, proved
to be largely a temporary manifestation. \Vith the relaxation of the
varions restrictions and the provision of land for reserves, particularly
after the conquest of the Territory by Respondent, there was a rever
sion to heathenism by the Herero 2 whlch wa.ssymbolized by the light
ing of holy fires. After 1915, even grown men, sometimes of advanced
age, submitted to circumcision rites and the filing of their teeth 3.
III. THE NAMA
85. Also in respect of the Nama, a comparison between Palgrave's
figures and the 1912 German figures, shows a reduction in numbers.
Thus Palgrave's 1876 figure was 16,850 ~ as against the 1912 figure of
14,320 5•After the 1903-1907 wars, the Germans, however, adopted a
less rigid attitude towards the Nama than that whlch had rnarked their
relations with the Herero. They did limit the amount of stock which
the Nama might maintain, but they also permitted some of the tribes
to use certain defined pieces of land 6•
During the wars of the nineteenth century, the political organization
of some of the Nama tribes had changed in that the military achieve
ments of certain of the chiefs enabled them to assume autocratie positions.
Association with the Orlams and the growing influence of the mis
sions resulted in the political and social institutions of the original
Namas being increasingly adapted to those of the Orlams, so that, by
the turn of the century, the distinctions between the two groups were
no longer clear-cut 7.
IV. THE BERGDAMAS
86. Many Bergdamas shared the fate of their masters, the Nama or the
Herero, in the general hostilities. Their numbers remained unchanged
from an estimated 20,000 8 in 1874 to 19,581 (German 1912 figure) 9.
With the defeat of the Herero and the Nama in the 1904-1907 wars,
the Bergdama were for the first time in known history released from
their bandage ta these tribes 10•They secured employment in the towns
and on the farms, and not only were they paid for their labour, but
their living conditions were also much improved. The establishment
of the Bergdama reserve at Okombahe was confirmed after the war as a
1 Hai!ey, op. cit.p. 23.
2 U.G. 26-r936, p.25.
3 Vide also Vedder, The Native Trihes of South West Africa (1928), p. 178; Chap.
II, para. 87,supra.
• Palgrave's Report, p. 94.
5 Die deutschen Schut.~gebiete in Afvika und der Siidsee,I912 /1913, Statistischer
Teil, p. 47.
6 Hailey, op. cit., p28.
7 Ibid., p. 31.
8 Vide Chap. II, para. 63, supra.
9 Die deutschen Schutzgebiete in Afrika und der Südsee, 1912/1913, Statistischer
Teil,p. 46.
10Vedder, The Native Tribes of South West Africa (r928), p.44; vide also Chap.
II, para. 65,supra. COUNTER-MEMORIAL OF SOUTH AFRICA 379
reward for assistance given to the Germans 1• In the words of Lord
Hailey: "For the first time the Bergdamas could feel that they had lands
which were in some sense their own 2."
V. THE EUROPEANS
87. During the last years of the German period, the European popu~
lation (amounting to 14,830 in 1913) 3 were engaged in farming, mining,
commerce, and other occupations. Mission activity had commenced
during the early years of the nineteenth century, and by 1920 many
mission stations had been firmly established for many years.
Although the majority of Europeans were Germans, a considerable
portion, particularly of the fanning community, were South Africans.
VI. THE REHOBOTH BASTERS
4
88. As has been shown ,the Basters obtained possession of Reho
both in 1870, and they have lived there ever since. Before the advent of
the German rule, they had their own system of government, based partly
on the Hottentot pattern, and partly on democratic principles. At
the head of the tribe was a Kaptein (Captain) assisted by a Raad (Council)
of two, and later four Burghers (citizens). There also was an eJected
Volksraad or Parliament. The territory (or Gebiet) was governed in
terms of a body of written laws, called Vaderlike Wette (Patriarchal
Laws). Their economy was based largely on animal husbandry. The
original mother-tongue of the Basters was Nama, but in course of time
they adopted Afrikaans. Their social organization was also modelled
on that of the Europeans s.
The well-known ethnologist Dr. E. Fischer cstimatcd their numbers
at 2,500-3,000 in 1912 whereas according to official German statistics
there were 3,544 Bastards in 1912 6•
89. In 1906 the German Govemment, with the consent of the Baster
Community, abolishcd the office of Kaptein (Captain) and replaced
it with a Gemeendehoof (Communal Head). The Volksraad, too, was
abolished, and replaced with the Baster Council comprising nine mem
bers, whose elechon was made subject to the approval of the German
Governor. A German magistrate acted as chainnari of this Council,
except when matters of purely domestic interest were discussed 7• The
Germans made laws for the Gebiet, and in the end the Basters lost
some of their former rights of self-government 8•
1 Hai!ey, op. cit.pp. 34-35; Vedder, The Native Tribes of South West Afric(1928),
p. 44.
2 Hailey, op. cit., p35.
3 Die deutschen Schut.zgebiete in Afrika und der Südsee, r9r2/r913, Statistischer
Teil, p. 22.
• Vide paras. 34 and 37, supra.
5 Vide Law Book of theRehoboth Bas/ers, promulgated in 1872 and 1874, in U.G.
,p-1926, Annexure VI, pp. 79-91.
6 Fischer, E., Die Rehobother Bastards und das Bastaràierungsproblem beim
Menschr-n [1913) (1961), pp. 14, 236; Die deutschen Schutzgebiete in Afrika und der
Südsee, 1911/12, Statistischer Teil, pp40-41.
7 Notice issued by the District Magistrate of Rehoboth, dated 30 Jan. 1906,
in U.G. 41-1926, pp. 91-92.
8 U.G. 41-1926, pp. 58-59. SOUTH WEST AFRICA ·
R. The Conquest and Military Occupation of South West Africa
by South African Forces
90. During the First World War, the South African Government
undertook the conquest of South West Africa (save for the Eastern
Caprivi Zipfel, which, as bas been shown, was occupied by Rhodesian
forces) 1• After a military campaign by the South African forces, the
German troops surrendered on 9 July 1915. For the rernainder of the
war, South West Africa was adrninistered under military occupation
by the South African forces, although a civilian administrator and
officials were appointed.
1Chap. II, para. 12,mpra. BOOK IV
CHAPTER I
INTRODUCTOY R
I. Save for the legal issues dealt with in Book II of this Counter
~Memorial, Applicants' main attack in the present proceedings is based
·upon alleged contraventions by Respondent of the second paragraph
-of Article 2 of the Mandate 1.
Respondent has submitted above 2 that the Mandate as a whole
Japsed on dissolution of the League of Nations. If this submission is
-"3.Cceptedi,t would follow that, for that reason alone, Applicants' com
·plaints in the present regard would have no validity.
However, Respondent proposes entering into the merits of Applicants'
..:omplaints on the assumption, for purposes of argument. that the
Mandate is still in existence 3•This will be done in the present and the
.succeeding Books of this Counter-Memorial, against the background of
:the introductory material set out in Book III.
2. In view of the comprehensive nature of Applicants' conten_tions
:xegarding alleged contraventions of Article 2 (2)of the Mandate, covering,
.as they do, v1rtiially every aspect of the admfoistrabon of the Territory
:for the whole period since the inception of the Mandate, Respondent's
reply must necessarily be a lengthy one, which cannot be accommodated
in one Book 4• The reply to Chapter V of the Memorials will consequently
J)e divided into the following Books of the Counter-Memorîal:
Book IV: Introductory (this Chapter);
Statement of the Law relative to Article 2 (2}of the Man
date (rcply to I, pp. ro4-ro8 of the Memorials);
Reply to Applicants' Background Information (Chapter
V, paras. 3-ro, 1,pp. ro9-no of the Memorials);
A Gcneral Survey of Respondent's Policies in South West
Africa.
Book V: Well-being, Social Progress and Development: the Eco
nomie Aspect (reply to Chapter V, paras. n-77, 1, pp.
ru-131 of the Memorials) ;
Well-being, Social Progress and Development: Govern
ment and Citizenship (reply to Chapter V, paras. 78-128,
I,pp. r3r-r43 of the Memorials).
:Book VI: Well-being, Social Progress and Development: Security of
the Persan, Rights of Residencc and Freedom of l\fove
ment (reply to Chapter V, paras. r29-r54, 1, pp. r44-
r5r of the Memorials).
1 Vide Chap. V of the Memorîals. I, pp. 104ff.
·.2Vide Book II,Chap. V, of this Counter-:\Iemorial.
3 VideBook I, Chap. I,para. 2 (c), othis Counter-Memorial.
• Ibid .• paras. 3-5. SOUTH WEST AFRICA
Book VII: Well-being, Social Progress and Development: Education
(reply to Chapter V, paras. 155-186, I, pp. 151-161 of
the Memorials).
Inasmuch as Applicants' "Legal Conclusions" (Chapter V, paras.
187-190, I, pp. 161-166) consist merely of a repet1tion of allegations
made earlier in Chapter V under the various headings referred to above,
Respondent will deal with them in conjunction with the factual alle
gations on which they are based.
In view of the fact that Respondent's reply to Chapter V of the
Memorials is spread over a number of Books, Respondent's formal
Submission in this regard does not appear in any of these Books, but is
covered by the Submissions in Book I 1•
3. On analysis of Applicants' Memorials, it appears that there is no
complaint or allegation that Respondent has failed to promote the
well-being and development of all the inhabitants of the Territory, but
that the charges are restricted to an alleged failure in respect of only
the Native population. Thus Applicants say, in introducing their State
ment of Facts regarding alleged contraventions of Article 2 of the
Mandate, that-
"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 overwhelming
majority of the people of South West Africa. In 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
2
apartheid ."
Apartheid, according to the Applicants-
"is a deliberate and systematk process by which the Mandatory
excludes the' Natives' of the Territory from any significant participa
tion in the life of the Territory except insofar as the Mandatory
finds it necessary to use the 'Natives' as an indispensable source
of common labor or menial service 3". (Italics added.)
When finally summarizing their allegations, Applicants repeat the above
definition of apartheid as constituting the element which "has shaped
the Mandatory's behaviour and permeates the factual record" 4. They
then continue:
"Deliberately, systematically and consistently, the Mandatory
lias discriminated against the 'Native' population of South West
Africa, _which constit~tes overwhelmingly the larger part of the
population of the Temtory. In so doing, the l\fandatory has not only
failed to promote 'tothe utmost' the material and moral well-being,
the special 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 s." (Italics added, save
for the words "to the utmost".)
1 Book I, Chap. I, para.1r.
21, p.108.
' Ibid.p. 109.
4 Ibid., p161.
' Ibid., p162. COUNTER-MEMORIAL OF SOUTH AFRICA
This feature, viz., that Applicants' complaints regarding alleged
contravention of Article :zare limited with respect to Natives, appears
throughout Chapter V of the Memorials 1•
The main emphasis of this part of the Counter-Memorial will conse
quently also fall on policy, practice and administration regarding the
Native population, and rcgarding relations between that population
and the European or White inhabitants of the Territory, which relations
form an important part of the theme of Applicants' complaints. It will
nevertheless be necessary from time to time to refer also to other popu
lation groups, such as the Coloured group, or the Rehoboth Basters.
Inasmuch, however, as these groups do not in any way feature in the
complaints or charges, a systematic or complete survey in regard to
them would be out of place, and is consequently not attempted. Any
reference to them will be only for the purpose of explanation or example,
or to answer some specific point or allegation raised in the .Memorials.
+ A sirrùlar position pertains regarding references to South Africa.
This case is concemed with Respondent's policies and actions in South
West· Africa, and not with those in South Africa itself. Nevertheless it
will be necessary from time to time to refer to events, policies or circum
stances in South Africa, either by way of explanation or illustration, or
to answer some specific point raised by the Applicants. The intention
is not, however, to provide a complete or comprehensive revicw of such
events, policies or circumstances-such review would be entirely irrele
vant to the issues before the Court and would add an unnecessary
burden to an a.lready bulky pleading.
5. In addition to South Africa, varions other countries or territories
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
methods designed to solve them. In some instances the purpose is to
show contrast between conditions in South \Vest Africa and other
territories, necessitating differences of approach in the framing of policies
of legislation and administration. And in some respects the references
also render possible a measurc of comparison of standards of achieve
ment in comparable circumstances-a matter not touched upon by
Applicants at all, but which can nevertheless be of assistance, particularly
inasmuch as Applicants' charges in essence amount to an allegation
of bad faith on Respondent's part, as will appear.
6. In the next Chapter, Respondent will deal with the legal principles
involved in Applicants' Submissions regarding alleged breaches of the
provisions of Article z (z) of the Mandate.
1 Vide regarding Agriculture,para. 33, I, p. IIregarding Industry,Industrial
Employment and Labour Relations,para. 77, I, p. r30; regardiGovernment and
Citizenship,para. 128, I, p. 142; regardiSecurityof the Person, Rights of Resi•
dence and Freedom of Movement, para. 154, I, p. 151; regardiEducation, para.
l86, 1, p. 159; and generallparas. 187.190, I, pp. 161-166. CHAPTER II
STATEMENT OF THE LAW
r. In their Submissions 3 and 4, Applicants request the Court to
declare that:
"3. the Union, in the respects set forth in Chapter V of this
Memorial and summarized in Paragraphs 189 and 190 thereof, has
practised apartheid, i.e., has distinguished as to race, color, national
or tribal origin in establishing the rights and duties of the inhabi
tants of the Terri tory; that such practice is in violation of its obliga
tions as stated in Article 2 of the Mandate and Article 22 of the
Covenant of the League of Nations; and that the Union has the
dut y forthwith to cease the practice of apartheid in the Territory;
4. the Union, by virtue of the economic, political, social and
educational policies applied within the Territory, which are de
scribed in detail in Chapter V of this 1\lemorial and summarized at
Paragraph 190 thereof, has failed to promote to the utmost the
material and moral well-being and social progress of the inhabitants
of the Territory; that its failure to do sois in violation of its obliga
tions as stated in the second paragraph of Article 2 of the Mandate
and Article 22 of the Covenant; and that the Union has the duty
forthwith to cease its violations as aforesaid and to take all prac
ticable action to fulfill its duties under such Articles ."
For the purposes of this legal argument (as, indeed, of the whole
argument regarding alleged contraventions of Article 2 of the Mandate)
Respondent will assume that the Mandate is still in existence.
2. Respondent has submitted 2 that this Court does not, in terms of
the Mandate, possess jurisdiction to decide disputes in matters not
affecting the rights or legal intercsts of other Members of the League of
Nations (whatever meaning this expression may bear since dissolution
of the League); and further that Members individually never possessed
any right or legal interest in the observance by the Mandatory of the
obligations imposed upon it by the Mandate for the benefit of the in
habitants of the Territory, except in cases where the breach of these
obligations affected the material interests of individual League Members,
either directly or through their nationals.
In the course of Respondent's argument as aforesaid, 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 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 inhabitants of the territory ... " 3• For the
i I,p. r97.
2 Vide Book II, Chap. V B, paras. 2-29,of this Counter-Memorial.
3 Book Il, Chap. V B, para. 16. COUNTER·MEMORIAL OF SOUTH AFRICA
reasons set out 1, it was submitted that the authors of the Mandate
did not intend the Court to have jurisdiction to entertain such disputes,
the Permanent Mandates Commission and the CoWlcil of the League
being the technical and political bodies specially charged with the
fonction of dealing with such matters.
Respondent abides by the submissions aforestated, and its argument
in the rest of this Chapter is accordingly offered as an alternative there
to,whlch would require decision only pursuant to a finding that the Court
does possess jurisdiction to entertain disputes arising from the applica·
tion of Article 2 of the Mandate, even in cases affecting only the interests
of the inhabitants of the Territory.
3. Article 2 of the Mandate, on which Applicants' said submissions
are based reads as follows:
"The Mandatory shall have full power of administration and
legislation over the territory subject to the present Mandate as an
integral portion of the Union of South Africa, and may apply
the laws of the Union of South Africa to the territory, subject to
such local modifications as circumstances may .require.
The Mandatory shall promote to the utmost the material and
moral wcll·being and the social progress of the inhabitants of the
territory subject to the present Mandate."
4. The purport and effect of Article 2 cannot be fully appreciated
without referring first to Article 22 of the Covenant, in terms of which
the Mandate was granted. This Article commenced in its first paragraph
by setting out the principle to be applied to certain territories (including
South West Africa} as being "that the weH.being and development of
[the inhabitants of the said terri tories] forma sacred trust of civilization";
and it further recorded the signatories' agreement that "securities for
the performance of this trust" should be embodied in the Covenant.
This paragraph was clearly of the nature of an introductory statement
of the main objective of the mandate system, together with an intima
tion that the ensuing provisions would be directed towards the attain
ment thereof 2•
5. The method designed by the authors of the Covenant to give effect
to their objective, comprised the following main elements:
(a) "The best method of giving practical effect to this principle" was
considered to be-
{i) that the tutelage of such peoples be entrusted to suitable
"advanced nations"; and
(ii) "that this tutelage should be exercised by them as Mandatories
3
on behalf of the League" •
The aspect of accountability to the League has been considered
above 4 and is not relevant for present purposes. In the present
argument, the emphasis will fall on the concept of tutelage.
1 Book II, Chap V B, paras. 2·29.
2 Vide Book II, Chap. III, para. 13 and Book Il, Chap. V A, para. 9, of this
Counter·Mernorial.
3 Art. 22 (2)of the Covenant; vide Book II, Chap. V A, para. 9 (b}, of this
Coun ter-Mernorial.
4 Vide Book II, Chaps. Ill. para. I4 (e), IV, para. 2 et seq. and V A, para. 9
(c), of this Counter·Mernorial.386 SOUTH WEST AFRICA
(b) In regard to C Mandates, such as South West Africa, the concept
of "tutelage" would include authority and control over the terri
tories concerned 1, or, in other words, power of govemment and
administration which could best be exercised "under the laws of
the Mandatory as integral portions of its territory" 2•
(c) However, the "sacred trust" principle rcquired that the "degree
of authority, control. or administration" to be exercised by the
Mandatory was to be "explicitly defined" in each case 1 and, in
particular, that the power of administration be made subject to
"safeguards ... in the interests of the indigenous population",
consisting of- _
". . . conditions which will guarantee freedom of conscience and
religion, subject only to the maintenance of public order and morals,
the prohibition of abuses such as the slave trade, the anns traffic
and the liquor traffic, and the prevention of the establishment
of fortifications or military and naval bases and of military training
of the natives for other than police purposes and the defence of
terri tory ... 3".
6. The schcme set out in broad terms in Article 22 of the Covenant
was duly implemented. The Mandate for South West Africa was con
ferred on Respondent as the "advanced nation" who could "best under
take this responsibility" •. And, to enable it to perform its functions
as Mandatory, Respondent was granted "full power of administration
and legislation over the territory ... as an integral portion of the Union
of South Africa" s.
7. The principle that the main objective of the Mandate was to
promote the "well-being and development" of the inhabitants {the
"sacred trust" principle) was given effect to in two essentially different
ways. In the first place, provision was made in Articles 3 to 5 of the
Mandate for the "safeguards" referred to in Article 22 (5) and (6). These
"safeguards" (consisting mainly of the "prohibition of abuses") placed
certain limitations on the governmental powers of the Mandatory, and
were in effect merely specific implementations, in certain defined
spheres, of the overriding objective of the mandate system.
Beyond making such provision for the "safeguards" it was, however,
in the nature of things impossible (or at any rate not considered feasible)
for the authors of the Mandate to reduce the objective of promoting the
well-being and development of .the inhabitants of the Territory to a
series of specific injunctions or prohibitions, breaches of which would
be capable of objective determination. No comprehensive set of rules
can be devised, the application of which in the sphere of government
would inevitably and in infinity have a benefi.cial effect on the people
governed. The authors of the Mandate consequently coupled the grant
to the Mandatory of full legislative and administrative powers 6 with
1 Art, 22 (8) of the Covenant.
3 Ibid.,Art.22 (6).
Ibid., Art22 (5) read with (6).
• Ibid., Art. 22 (2).
' Art, 2of the Mandate for German South West Africa.
& Vide Art. 2 (1) of the Mandate. COUNTER-MEMORIAL OF SOUTH AFRICA
a provision which required the ;\iandatory to "promote to the utmost
the material and moral weU-being and the social progress of the inhabi
tants of the territory" 1.These words in effect merely constitute a
paraphrase of the main objective of the mandate system as expressed
in the Covenant-i.e., "the principle that the well-being and develop
ment of such peoples form a sacred trust of civilisation"-and in their
context they consequently indicate the objective to be pursued by the
Mandatory, or the spirit with which he should be imbued, in exercising
his power of administration and legislation.
8. Sorne significant differences between Article 2 (2) of the Mandate,
on the one hand, and Articles 3 to 5, on the other, illustrate the essen
tially different origin and purpose of these provisions. Thus the wording
of Article 2 (2) is wide and general, which is in keeping with its nature
as an expression of an idealistic objective. The "safeguards" contained
in Articles 3to 5, on the other band, being specific obligations, are couched
in relatively clear and precise language-they prohibit or enjoin parti
cular acts or omissions and provide objective criteria by which the
11'Iandatory'sadministration may be judged.
The general, overriding nature of Article 2 (2) as denoting the spirit
in which, or the purposc for which, the Territory is to be a:dministered,
appears also from its position in the mandate instrument: it isnot inserted
in a separate Article, or included with provisions limiting the Mandatory's
powers (as is the case with Articles 3 to 5), but is found in the same
Article as the grant of "full power of administration and legislation" to
the Mandatory.
9. Reading Article 2 as a whole and in the light of the provisions of
Article 22 of the Covenant, the intention of the authors of the Mandate
becomes quite clear. Save for Articles 3 to 5, no limits in respect of
subject-matter were placed on the full power of administration and
legislation granted by the Article; but the i'.\Iandatorywas nevertheless
required to exercise these full powers for the purpose of promoting
to the utrnost the rnateria1 and mora1 well-being and the social progress
of the inhabitants of the Territory.
It follows consequentially that the particular methods whereby this
purpose was sought to be attained, were left to the discretion of the
Mandatory.
In the Lighthouses case, the Permanent Court said:
" ... any €,'Tantof legislative powers generally implies the grant
of a discretionary right to judge how far their exercise may be
necessary or urgent; ... It is a question of appreciating political
considerations and conditions of fact, a task which the Government,
as the body possessing the requisite knowledge of the political
situation, is alone qualified to undertake 2.''(Italics added.)
More specifically with reference to C Mandates, Mr. Justice Latham.
the Chief Justice of Australia, said:
"In the case of 'C' mandatés ... the mandatory power ... has
full powers of 'administration and legislation over the territory
1 Art. 2 (2)of the Mandate.
2 Lighthouses case between FYance and Gnece, Judgment, I934, P.C.I.J., Sel'ies
A/B, No. 62, p. 22, SOUTH WEST AFRICA
subject to the mandate as an integral portion of its terri tory' (Art. 2
of the Mandate). This provision is in accordance with the terms of
Art. 22 [of the Covenant]. ln the original draft of the covenant
the relevant provision of art. 22 provided that the territories in
respect of what are now known. as 'C' mandates were granted
'can be best administered under the laws of the mandatory as if
integral portions of its territory'. But on the suggestion of the
Japanese delegate the word 'if' was omitted (see Wright, op. cit.,
p. 42). Itis clear that it was intended that in the case of 'C' Mandates,
the /ullest powersof govemment should beconjerred upon the mandatory
1
power .''(Italics added.)
And with reference to the mandate system as a whole, 1\1.Orts, a member
of the Permanent Mandates Commission, was recorded to have said:
"The development of primitive peoples could be carried on by
different means, and these means would be such as were proper
to the native genius, traditions, and the political and philosoph1cal
conceptions of each mandatory State ... The mandatory States
would fail in their task if a system and method foreign to their
mentality were imposed upon them.
The duty of the Commission was confined to discovering whether
the mandatory Powers conformed to the definite obligations im
posed upon them by the Covenant and by the mandates, and in
addition, whether, within the limits of these acts, they were honestly
performing their task in order to justify the confidence reposed in
2
them ." (Italics added.)
Quincy Wright points out that-
"... the prescriptions of the Covenant and of the mandates vary
greatly in definiteness. Sorne regulations like those on slave, arms
and liquor traffic, military bases, recruiting, and the open door are
quite defmite; but, on the other hand, certain principles like 'the
well-being and development' of the inhabitants ... are so vague
as to admit of a broad variety of policies 3."
And in 1946 Lord Hailey, who had himself been a member of the
Permanent Mandates Commjssion, stated with reference to Native
Affairs in South West Africa:
"lt need hardly be recalled that the Mandate did not itself set
forth the methods to be pursued in the conduct of Native Affairs.
Article 22 of the Covenant of the League placed on the Mandatory a
general obligation to consider the well being and development of the
population whose tutelage it had undertaken. The Mandate laid
down that while the Mandatory should have full power of adminis
tration and legislation over the territory as an integral portion of
its own territory, it should promote to the utmost the material and
moral well being and the social progress of the inhabitants. The
primary object of this provision was clearly to protect the interests of
the Native inhabitants of the territory ....
1
2 Ffrost v.Stevenson,1937, 58 C.L.R. 528, at p. 550.
3 P.M.C., Min,, IX, p. 134.
Wright, Q., Mandates Under the League of Nations (r930), p. 226, COUNTER-MEMORIAL OF SOUTH AFRICA
In regard, however, to the policy to be observed in Native Affairs
the prescriptions of the Mandate, where they were in any sense
precise, were of a negative rather than a posfüve character. Thus it
required the Mandatory Govcrnment to prohibit the slave trade and
the supply of intoxicating beverages to Natives, to control the traffic
in arms, and to permit forced labour only for essential works and
services. lt prohibited the military training of Natives, save for
purposcs of interna] police and local defence, and it guaranteed the
free exercise of all forms of worship and the free entry ofail mission
aries belonging to any State member of the League of Nations.
But in other respects it left the M andatory Government to interpret the
methods by which it should promote the well being of the Natives of the
territory. Thus it remained for itto frame ils own policy, within this
general objective, in respect of matters such as the control over land,
the system of justice, the procedure of taxation, the extent to which
regard should be had to native law and custom, the provision to be
made for the social services of health and education, and the part
to be taken by the Native population in the political institutions ofthe
1
country ." {Italics added.) ,
To a certain extent this was an amplification by Lord Hailey of a
similar view expressed by him in 1938 as follows:
"There are indeed certain difficulties inherent in the form which
the mandates have taken. They indicate gcneral policies, necessarily
in wide or even negative terms. But experience shows that within the
scope of general objectives such as those indicated there is room for
a great variety of methods of approach 2."
10. As appears from the foregoing, therefore, the only qualification
imposed by Article 2 (2) on Respondent's fu]] powers of legislation and
administration in respect of South West Africa, ,.vas that Respondent
was required to use such powers for the purposc of promoting to the
utmost the material and moral well-being and the social progress of
the inhabitants. The discretion to decide as to the most appropriate
means of attaining such purpose, vested in Respondent.
II. The nature of the limitation on Respondent's powers in terms of
Article 2 must be borne in mind when considering the correct approach
by the various supervisory organs in respect of Mandates. Thus the
Council of the League and the Permanent Mandates Commission were
respectively political and technical organs, which could make practical
suggestions or recommendations, or could level criticisms, on the tech
nical details of administration of mandated tcrritories, -even in circum
stances where there was no suggestion that the Mandatory concemed had
acted contrary to the terms of its Mandate.
12. The Court, on the other hand, could make no order adverse to
any Mandatory except on the basis of a finding that there had been a
breach of the provisions of the Mandate. This is an obvious result of
the very nature of the Court's judicial fonctions. In addition, it is implicît
în the Judgment on the Preliminary Objections. Thus it was stated that
the role of the Court in respect of Mandates was "... to serve as the final
1 Lord Hailey, A Survey of Native AOairs in South West Ajrica (1946) [unpub
lished],pp. 51-52.
2 Lord Hailey, An African Survey (1938), p. 220. Vide also p. 251. SOUTH WEST AFRICA
390
bulwark of protection by recourse to the Court against possible abuse
QY breachesoftheMandate" l, (Italics added.)
In the Court's view the main type of dispute for which the compromis
sory clause had been designed, was where the Mandatory persisted in
pursuing a particular course despite the objection of the Council of the
League that it constituted "a violation of the Mandate" 2•
Later, when defining the ambit of the rights of Members of the League
in respect of Mandates, the Judgment reads:
"•.• the Members of the League were understood to have a legal
right or interestin the observancebytheMandatoryofits obligations. ..
towards the inhabitants of the Mandated Territory ... 3". (Italics
added.)
13. Where, as m the case of Articles 3 to 5 of the Mandate, the obli
gations of the Mandatory relate to the performance or non-performance
of specific acts, the determination of the question whether a breach,
abuse or violation of such obligations has been committed is, apart
from possible difficulties of interpretation, confined to the ascertainment
of the existence or otherwise of certain objective facts.
The position under Article 2 is, however, essentially different. The
only obligation resting on Respondent in terms of that Article, was to
use its powers of legislation and administration for the purpose of pro
moting to the utmost the well-being and progress of the inhabitants 4•
Consequently, to establish a breach of this Article, it would be necessary
to prove that a particular excrcise of Respondent's legislative or adminis
trative powers was not directed in good faith towards such purpose.
To put the same proposition in a different form, no act or omission on
Respondent's part would constitute a violation of this Article unless
such act or omission was actuated by an intention, or directed at a pur
pose, other than one to promote the intercsts of the inhabitants of the
Territory. If there was any intention at all that the Court should, in the
interest of the inhabitants, adjudicate upon allegations of violation of
Article 2 (2), this is the only possible juridical basis upon which such
adjudication could be undertaken.
r4. In advancing the above proposition, Respondent is concemed
only with the particular situation pertaining under Article 2of the Man
date, and is not to be understood as suggesting that in all cases where a
discretionary power of legislation or administration has been granted to
a person or body, the possibility of judicial interference with acts of the
holder of the power must necessarily be equally limited.
So, for instance, a power may be limited to certain subjects, as is
frequently the case with legislative as well as administrative jurisdiction.
In such instances a Iegislative or administrative act could deal with a
subject falling outside those included in the power, or could transgress
their limits, and would consequently be ultra vires and Hable to be de
clared so by a court of law. The same situation would in principle apply
to an act running counter to any prohibition or restriction, express or
implied, attached to a grant of power. Limits, prohibitions and re-
1 South West Africa, Preliminary Obiections, Judgment, l.C.]. Reports I962,
p. 319, at p. 336.
2 Ibid.,p. 337.
3 Ibid., p.343.
• Vide para. 10, supra. COUNTER-MEMORIAL OF SOUTH AFRICA 391
strictions of the kind mentioned need not be, and frequently are not~
concerned with a question of purpose at ail, with the result that the ele
ment of purpose, or good or bad faith, could in such cases be irrelevant
to an allegation of violation, the only question being whether the act
complained of in fact falls within or outside the limits of the power as
prescribcd. Allegations of violation of certain ofthe provisions ofArticles
3 to 5 of the Mandate would fall in this category.
Again, the manner in which a power is defined and circumscribed,
even if the limitations include a reference to a purpose, may be such as
to give rise to genuine misunderstanding on the part of the holder of the
power as to the nature or scope of the power or of the purpose. In such
circumstances thcre would be room for a possible finding that the holder
has committed a violation by reason ofpursuing an unauthorized purpose,
despite a complete absence of mala fides on his or its part.
However, these and similar considerations do not arise in respect of
Article2 of the Mandate. The "full power of administration and legis
lation" grantcd in tenns of the Article covers the whole field of govern
ment, the only limitation (apart from Articles 3 to 5) being the element
of purpose. And both the power and the purpose are defined in such a
manner as to preclùde any possibility of misunderstanding. (Indeed, as
will be shown later, the Applicants do not allege or suggesf any possibility
of misunderstanding.) The ques:tion before the Court can therefore in
essence only be one of intentions; or purpose, or good faith.
15. The conclusion stated in the previous paragraphs, is supported
by a further consideration. The Courtis a judicial organ and can accord
ingly not corne to decisions otherwise than in accordance with legal
norms. Jf the Court were to decide whether in fact a particular polie y
promoted the "well-being" of the inhabitants "to the utmost", it would
have to consider that policy and weigh it against other policies which
might be followed in an attempt to achieve such a purpose. In ordcr to
anive at a decision, the Court would thereupon have to decide whlch
policy it considcrs best. The Court's function in so deciding would be one
which is, inits very nature, nota judicial one. No legal criteria can be used
in such adjudication. The decision can only be based on social, ethno
logical, economic and political considerations.
It is true that a particular provision of a statute in municipal law, or
of a treaty in international law, could have the effect of requiring a
court to venture onto one or other of these terrains. The particular
provision or stipulation itsclf then provides the Iegal basis upon which the
Court is to act; and with the assistance of such special prescriptions,
if any, as may be contained therein, the Court would have to perform
the function concerned as best it could. But such a situation is always an
unusual and exceptional one 1.involving, as it does, a departure to a
greater or lesscr extent from ordinary legal nonns as the criteria for
decision; and in the absence of explicitly clear language or manifest
intent, an instrument will not readily be understood as requiring such
a fonction of a court of law.
An analogous illustration of the need for an exceptional arrangement
to bring about a departure from ordinary legal nonns as the criteria for
adjudication by a court, is afforded by Article 38 of the Statute of this
honourable Court. Paragraph r of the Article states that the Court's
1
Vide Book II, Chap. V B, paras.tG-17, of this Counter-:\fomorial. SOUTH WEST AFRICA
392
"function is to dccide in accordance with international law", and sets
out sources of international law. This is the normal manner in which
the Court functions in respect of disputes submitted to it, and no special
arrangement is needed to bring it about. Paragraph 2 of the Article
provides for power on the part of the Court to decide ex aequo et bono,
but only "if the parties agree thcreto"-thus underlining the need for
special arrangement if there is to be a departure from normal juridical
bases for adjudication.
ln the present case there is no exccptional or special arrangement of
the kind mentioned above. There is no explicitly clear language or
manifest intent perceivable in the mandate instrument, and no special
agreement between the parties as contemplated in Article 38 (2) of the
Statu te, so as torequire or enable the Court to adjudicate ex aequoet bono
or upon the basis of political and technical criteria. This, accordingly,
again leaves, as the only possible juridical basis for adjudication, the
question whether a Mandatory in Respondent's situation has bona /ide
directed the exercise of its full power of administration and legislation
towards achievement of the prescribed purpose, viz., promotion to the
utmost of the inhabitants' well-being and progress.
16. The question before the Court in respect ot'Article 2 therefore
being one of intentions, or purpose, or good faith, it follows that the
political and technical merits or otherwise of particular legislative and
administrative measures, practices and policies-not being in issue as
such-can be of relevance only in so far as they may tend to prove good
or bad faith in the scnse of an authorized or unauthorized purpose, on the
part of Respondent.
Whatever the Court may think of the merits of a particular legislative
or administrative act, practice or policy, if it was devised and performed
or practised in the exercise of the Mandatory's discretion with the bona
fide intention of benefiting the inhabitants of the Territory, it would not
constitute a violation of Article 2 of the Mandate.
This situation is logically inherent in ail cases where courts have to
decide on the legality or otherwise of the exercise of a discretionary
power , whether conferred by treaty or by statute. ln the latter instance
municipal courts "... have repcatedly affirmed their incapacity to
substitute their own discretion for that of an authority in which the
discretion has been confided'' 2•
I7. Although the Memorials do not contain any analysis of the powers
and obligations granted and imposed by Article 2 of the Mandate,
Applicants seem to reach the same conclusion as the one set out above.
Consequently their whole case relating to the alleged violations of Article
2 (2) of the Mandate 3 appears to be based on a contention of bad faith
on the part of Respondent. Thus they contend:
"The Union has not only failed to promote 'to the utmost' the
material and moral well-being, the social progress, and the develop
ment of the people of South West Africa, it has failed to promote
such material and moral well-being and social progress in any
1Save, again, where jurisdiction of an abnorrnal kind may specifically have been
conferred upon a court,e.g.,to test for reasonableness.
2de Smith, S. A., judicial Revîew of Administrative Action (1959), p167.
3 I,p.104. COUNTER-MEMORIAL OF SOUTH AFRICA 393
significant dcgrcc whatever. On the contrary, efforts of the Union have
in fact been directed to the opposite end. By Iaw and by practice, the
Union kas /ollowed a systematic course of positive action which inhibits
the well-being, prevents the social progress and thwarts the develop
ment of the overwhelming majority of the people of South West
Africa 1." (Italics added save for the words "to the utmost" .)
And again:
"A sober and objective appraisal of the factual record, as herein
after detailed, compels the conclusion that apartheid, as actually
practised in South West Africa, is a deliberate an,i 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 l\fandatory finds it necessary to use the 'Natives' as
an indispensable source of common labor or menial service 2."
(Italics added.)
Later, the actions of the Respondent to which exception is taken are
stigmatized as constituting "a deliberate, systematic and consistent
course of conduct" discriminating against the Native population of the
Terri tory 3; "a consistent course of positive action which inhibits the
well-being and prevents the social progress and the development of the
larger part of the population" 4; "a systematic and active programme
which prevents the possibility of progress by the 'Native' population" 5;
"a systematic course of positive action which thwarts the well-being,
inhibits the social progress and frustrates the development" of the Native
population 6; "deliberate policy and practice" 7 ; "deliberate and syste
matic control of the processes of education" 8 ; "positive action which
drastically restricts opportunities for education" 8; "cohesive and
9
systematic pattern of behavior" •
In their Final Conclusion, the result of the foregoing is summed up in
the following words:
"In its administration of ... South West Africa, the Union, as
Mandatory, bas knowingly and deliberately violated the letter and
spirit of the second paragraph of Article 2 of the Mandate and of
Article 22 of the Covenant upon which Article 2 of the Mandate was
based 10." (Italics added.)
18. Although the Applicants do make the allegation, e.g., in the first
passage quoted in the previous paragraph 11, that Respondent has
"failed to promote such material and moral well-being and social pro
gress", they do not appear to make any independent or alternative c~e
relative to this allegation, but state it purely as a consequence flowmg
1 l,p. 108.
2 Ibid.,pp. 108-109.
' Ibid.,p. l 17.
• Ibid.,p. 130.
~ Ibid.,p. 143.
6 Ibid.,p. 152.
7
8 Ibid.,p. 159.
Ibid.,p. 16o.
9 Ibid.,p. r6r.
10 Ibid.,p. 166.
11Vide also 1, pp. 117, 130, 143, 151-152, 160 and 162.394 SOUTH WEST AFRICA
from the positive course of ma/a fide conduct which they seek to lay to
Respondent's charge.
This is apparent not only from the manner of formulation of the
charges 1 but also from the nature of the material sought to be adduced
in support thereof. Respondent, in submitting that the Court can arrive
at a conclusion of violation of Article 2 only on the basis of a finding that
Respondent has used its powers of administration and legislation for
an unauthorized purpose, has pointed out that there are not norms of a
legal (as distinct from a political or technical) nature for deciding on
merit whether a Mandatory has or has not promoted well-being and
progress to the utmost. It is significant that Applicants themselves do
not suggest any such norrns. They do not in any way suggest or indicate
what standards ought to have been achieved. They make no attempt
at objective assessment or even description of the circumstances per
taining to the task undertaken by the Mandatory, and of the effect which
those circumstances could be expected to have upon the rate of progress
and development. They do not systematically compare conditions of
well-being and progress as they existed in the Territory in 1920 with
the conditions existing today. They do not even refer at all to standards
in fact applying in comparable territories and circumstances.
19. From the foregoing it becomes patent that Applicants' assertion
that Respondent "has failed to promote" well-being and progress on
the part of the Natives, "to the utmost" or "in any significant degree
whate_ver", is a mere derivation from the charge that "efforts of the
Union have in fact been directed to the opposite end" 2, and that Appli
cants' real and only case against Respondent in respect of Article 2 is
a charge of bad faith. Applicants themselves indicate this almost expli
citly in the following passage:
"Deliberately, systematically and consistently, the Mandatory has
discriminated against the 'Native' population of South West Afri~a,
which constitutes overwhelmingly the larger part of the population
of the Terri tory. In so doing, the l\fandatory has not only failed .to
promote 'tothe utmost' the material and moral well-being, the social
progress and the developmcnt of the people of South West Africa.,
but it has failed to promote such well-being and social P,rogress in
any significant degree whatever 3." (Words "In so doing' italicized
by Respondent.)
20. In their Submission 34 Applicants' complaint is formulated as
follows:
"The Union, in the respects set forth in Chapter Vof this l\fem~rial
and summarized in Paragraphs 189 and 190 thereof, has pract~sed
apartheid, i.e., has distinguished as to race, color, national or tnbal
origin in establishing the rights and duties of the inhabitants of the
Terri tory . . ."
Read by itself this Submission may possibly create the impressi~n
that Applicants make the case that any disbnction as to race, etc., m
establishing the rights or duties of the inhabitants of the Territory, is
1
2 Vide para. 17,supra., 130, 143, r51-152, 160 and 102.
3 I,p. 162.
• Quoted in full in para. supra. COUNTER-MEMORIAL OF SOUTH AFRICA 395
per se to be regarded as a violation of the Mandate. The Submission
<:ommences, however, with an incorporation by reference of "the respects
set forth in Chapter V of this Memorial and summarized in paragraphs
189 and 190 thereof". These incorporated "respects" render clefl:rthat
the possible impression just mentioned cannot be correct. It will be re
<:alled that Applicants have been careful to set out explicitly what they
allege is to be understood under the term "Apartheid", and that they
have inserted tlùs "definition", inter alia, in paragraph 189 of the
Memorials 1• Reference to the definition, as well as to the further con
tents of Chapter V generally, including paragraphs 189 and 190 thereof,
conclusively demonstrates that no part of Applicants' case is founded
-on the mere existence of distinctions between the rights and duties of
various groups in the Territory, but that the basis of their whole case
is as set out in the preceding paragraphs.
21. To conclude, 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 pursued actions ostensibly within its powers for a purpose not
.a.uthonzed thereby. And an analysis of the mandate instrument and the
Covenant shows, in Respondenfs submission, that this is in law the only
possible basis on which such a case could be sought to be founded.
22. By making use of some of the provisions of Chapters XI, XII and
XIII of the Charter of the United Nations, which are said to be in pari
materia with Article 22 of the Covenant and Article 2 of the Mandate,
Applicants seek to read into the general statement of objective in Article
2 (2) of the Mandate certain "clear and meaningful norms marking the
duty of the Mandatory " 2•
It is submitted that the invocation of the principle of in pari materia
as an aid to interpretation in the present case, is entirely unjustifi.ed. The
only authority relied upon by Appiicants in this regard 3, is a passage
from the case of Interpretation of the Convention of r9r9 concerning
Employment of Women during the Night 4. In that case the Court, in
interpreting one convention, was led to "attach some importance" to
the presence of a particular provision in another convention. The reason
given by the Court for the invocation of the in pari materia principle was
the "similarity both in structure and in expression between the various
draft conventions adopted by the Labour Conference in Washington in
1919". .
It isunderstandable that where a particular conference adopts an umber
of similar oonventions, the terms of one of them may be of some assistance
in interpreting another. To assert, however, that a convention concluded
in 1945 can be used as an aid to ascertain the intentions of the parties to
a convention conduded between different States in rg20, is, in Re
spondent's submission, so obviously absurd as not to warrant serious
consideration 5•
1 VideChap. I, para. 3,supra.
2 I, pp. ro4-ro8.
3 Ibid.pp. ro5-ro6.
4 P.C.!.]., Series A[B, No. 50.
5 Vide Interpretation of the Convention of r9r9 concerning Employment of Women
during the Night,Advisory Opinion, r93z, P.C.!.]., Series A/B, No. 50, at p. 377,396 SOUTH WEST AFRICA
23. The provisions of the Charter cannot, therefore, be relevant to
the interpretation of the Covenant and the mandate instrument. Whether
they are in their own right of application to Mandates, is not a question
which arises in the present proceedings, in that Applicants' whole case
is basèd on the provisions of the Mandate 1• The only possible relevance,
in the present proceedings, of the provisions of the Charter, is that they
may afford evidence of what was in 1945 considered propE!r aims of
administration in dependent territories. As such, the Charter could
conceivably be a factor from which, together with all other relevant
material, an inference of good or bad faith on the part of the lvlandatory
might be drawn.
For this purpose it is, however, important to read the relevant pro
visions as a whole; and it is particularly instructive to refer to their
text with2emphasis on .the qualifications rather than, as in Applicants'
citation , on certain aspects of the obligations. Thus Article 73 pro
vides as follows:
"Members of the United Nations which have or assume respon
sibilities for the administration of territories whose peoples have
not yet attained a full measure of self-government recognize the
principle that the interests of the inhabitants of these territories
are paramount, and accept as a sacred trust the obligation to
prornote to the utmost, within the system of international peace
and security established by the present Charter, the well-being
of the inhabitants of these territories, and, to this end:
(a) to ensure, with due respect for the culture of the peoples con
cerned, their political, economic, social and educational ad
vancement, their just treatment, and their protection against
abuses;
(b) 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, according to the
particular circumstances of each territory and its peoples and their
varying stages of advancement ... " (Italics added.)
Article 76 provides:
"The basic objectives of the trusteeship system ... shall be:
(b) to promote the political, economic, social and educational
advancemcnt of the inhabitants of the trust territories, and
their progressive development towards self-government or in
dependence as may be appropriate to the particular circum
stances of each territory and its peopies and the freely expressed
wishes of the peoples concerned ...
(c) to encourage respect for human rights and for fundamental
freedorns for all without distinction as to race ... '' (Italics
added.)
In so far as the above provisions (or some of them) may be in advance
where the Court refused to apply thein pari materiaprinciple when it was sought to
invoke the provisions of the Berne Convention of 1906 in interpretinthe \Vashing
ton Convention of 1919.
1 And necessarily so, regard being had to the compromissory clause on which
they rely for jurisdiction.
2 I,p.108. COUNTER-MEMORIAL OF SOUTH AFRICA 397
of what was current thought in 1920, Respondent is nevertheless in
entire accord with them, provided they are read as a whole, i.e., without
disregarding the qualifications inherent in them. As will be shown later
in this Counter-Thiemorial, Respondent's policics have in fact been
designed to give effect to the principles underlying the above-quoted
provisions of the Charter.
24. Having made the submission regarding "clear and meaningful
norms" as stated above 1, Applicants procced to formulate certain
specific duties which they allege are, in accordance with the said legal
norms, included in Respondent's obligations as Mandatory 2.
Before dealing with some of these specific duties, one general aspect
must be emphasized, namely that the duty to promote the material
and moral well-being and social progress of the inhabitants cannot be
split up into a number of different, self-contained fragments, but is in
its nature indivisible. Although Respondent is in general agreement
that the specific "dear and meaningful norms" relied upon by Appli
cants 2, can, on the whole 3, be said to be matters to which regard
ought to be had in the exercise of the ·Mandate, it must be kept in mind
that they represent ultimate aims, which in certain circumstances or
at certain stages of development may be inconsistent or even irrecon
cilable. Jt is therefore artificial, in Respondent's submission, to <livide
Respondent's duty in terms of Article 2 of the Mandate into a number
of different obligations and then to suggest, expressly or by implication,
that Respondent is obliged to attempt to comply with all these obliga
tions to the same degree at the same time. Respondcnt's duty is tô pro
mote the total material and moral well-being and social progress of
the inhabitants, and in the process of performing this duty particular
aspects of such well-being and progress may, in the exercise of Respon
dent's discretion,' receive particular emphasis, or may, conversely, be
deferred or even reduced for the purpose of achieving a greater and
compensatory improvement in some other respect.
25. As has been noted above, Respondent is in gcneral agreement
that the duties referred to by Applicants, constitute matters to which
regard is to be had in administering the Mandate. To avoid misunder
standing, however, something more requires to be said in regard to
three of them, as will be done in the next succeeding paragraphs.
26. The first duty which is said to be included within the general
terms of Article 2 of the Mandate, reads as follows:
"Economie advancement of the population of the Territory
and notably of the 'Natives' who constitute the preponderant
part of the total population in agriculture and industry ... "
Respondent acknowledges a duty to promote the economic progress
of all the inhabitants of the Territory, and considers that no group can
claim any preferential treatment save upon the basis of its needs, which
may be greater than those of other groups and for that reason require
special attention.
Respondent does not, however, accept the proposition, which seems
1 Vide para. 22,supra.
1 1, pp. rnS-109.
3 Subjcct to what is saidinparas. 25-28, infra.
• I, p.108. SOUTH WEST AFRICA
to be irnplkit in the above-quoted "duty", that it owes a specia1 obliga
tion towards certain inhabitants of the Territory merely because they
are Natives, or merely because they constitute the greater part of the
population.
27. Applicants' duty No. 3 seeks to impose on Respondent the
obligation to promote the "political advancement of [the inhabitants
of the Territory] through rights of suffrage . .. " 1. (Italics added.) Neither
in the Mandate, nor in the Charter, is there any provision requiring
that the political advancement of the inhabitants of dependent territories
should necessarily be promoted "through rights of suffrage". Whereas
Respondent admits that it is under a duty, inter alia, to promote the
political advancement of the inhabitants of the Territory, it is submitted
that the method to be adopted in this regard rests in its own discretion,
which is to be exercised by applying policies "as may be appropriate
to the particular circumstances of [the] territory and its peoples" 2•
Respondent, while in no way opposed to the idea of suffrage for all or
any peoples in appropriate circumstances, does not consider that pro
vision for such rights in one integrated political entity is the only or
best method of achieving political advancement in all cases, and is
satisfied that it would certainly not be the best method for the peoples.
of South West Africa.
28. Applicants' duty No. 5 reads as follows:
"Equal rights and opportunities for [members of the population
of the Territory] in respect of home and residence, and their just
and non-discriminatory treatment 3."
Respondent is in entire accord with this proposition, although it is
evident that differences could arise as to the best methods of giving
effect to the ideal expressed therein. Respondent must stress that in
its view the expression "equal rights and opportunities" is not to be
interpreted to mean "identical rights and opportunities". In later parts.
of this Counter-Memorial Respondent will show that differential treat
ment is often the only way of achieving in practice the ideal of equality
for various population groups. Reference may in this regard be made
to the Minority Schoolsin Albania case, where the Permanent Court said:
"... equality in fact may involve the necessity of different treat
ment 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, wou]d result in inequafüy in fact ... 4"
29. In the succeeding Chapters in this Book, Respondent will, after
dealing first with background information, survey the broad lines of
policy adopted by it in promoting the well-being and progress of the·
inhabitants of South West Africa.
1 J, p. rn8.
2 Art. 76 (b) of the Charter.
3 I,p. I09.
• Minority Schools in Albania,Advisory Opinion, z935, P.C.I.J., Series A /B, No ..
64, p.19, CHAPTER III
BACKGROUNDINFORMATION:AREA AND POPULATION
r. In this Chapter Respondent replies specifically to the statements
and allegations contained in paragraphs 3 to IO of Chapter V of Appli
cants' Illemorials 1• For the most part the reply concerns information
whîch has been set out systematically in previous Chapters 2• It will
nevertheless be convenient to summarize, or refer to, such information
with specific reference to the relevant paragraphs of the Memorials.
2. Paragraph 3.
(a) The area of South West Africa, according to figures obtained
from the Surveyor-General of the Territory, is 824,269 sq. km.
(318,261 sq. miles) 3•
{b) The Territory is. not divided into two main segments (or admin
istrative units) as aIIeged by Applicants, but into three; viz., the
Police Zone, the northern section beyond the Police Zone, and the
Eastern Caprivi Zipfel. Such division was not effected by Respondent
as alleged by Applicants, but had been introduced by the former
German administration. The division reflected different attitudes
on the part of the German authorities to the administration of
these three areas. Thus the Police Zone was the area under direct
control of the authorities and was patrolled by the police (whence
its name), whereas the northern section was never subject to
German control at all (save, to a limited extent, the Kaokoveld).
The Eastern Caprivi Zipfel occupied an intermediate position
whereby German control was exercised in an indirect way by
making use largely of the traditional tribal authorities 4.
(c) The northern section (i.e., excluding the Caprivi) consists mainly
of the Kaokoveld, Ovamboland and the Okavango. The main
population groups in the Kaokoveld are the Himba and Tjimba 5,
as well as certain Herero who fled from the Territory during the
war against the Germans in 1904-1906, but returned after the
German defeat in 1915 6•
The composition of the population o, Ovamboland and the Oka
vango has been set out above 7•
(d) The areas of these various sections are as follows 8 :
Police Zone: 570,980 sq. km.
(220,463 sq. miles).
J I, pp. rro· rr.
2 Vide Book III, Chaps. I to III, of this Counter-Memorial.
3 Ibid.,Chap. I, para. 4.
~ Ibid.,Chap. II, para. 11.
5 Two tribes closely related to the Herero, who remained behind when the early
Herero migration left the Kaokoveld-vide Book III, Chap. II, paras. 81 and 82.
~ Vide Book III, Chap. III, para. 84.
1 Ibid.,Chap. II, paras.22 and 33.
~ Departmental information.400 SOUTH WEST AFRICA
Northern section and the Eastern Caprivi:
253,289 sq. km.
(97,798 sq. miles).
It will be seen therefore that the figures given for these sections
in paragraph 3 of Chapter V of the llemorials, and for which no
1
source is quoted ,are entirely erroneous.
(e) It is correct to say that the Police Zone embraces generally the
southern and central sections of the Territory, and also that it is
larger and better developed than the northern section and the
Caprivi. Respondent is not sure, however, what Applicants mean
to convey by referring to the Police Zone as "richer" and to the
northern section as "poorer". If these adjectives are meant to
refer to the r_clative extent of natural resources of the two parts
of the Territory, Respondent disputes this allegation.
As far as land resources are concerned, the areas beyond the Police
Zone (and, in particular, Ovamboland, the Okavango and the Eastern
Caprivi) are situated in the most favoured part of the Territory. It will
be recalled that the northem and north-eastem parts of the Territory
have the combined advantages of a higher annual rainfall, a longer rainy
season, and less variability in rainfaJ] 2•These areas are consequently
best suited for dry-land cropping 3.stock fanning •, and timber exploita
tions. ln addition, the highest potential for irrigation is found in those
parts of the Territory 6•The region in which all these advantagcs are
combined (called the northem and north-eastern cropping and large
stock farming region) 7, falls entirely within parts of Ovamboland and
the Okavango, and covers the whole of the Eastern Caprivi. The rest
of Ovamboland (with the exception of a portion to the extreme west)
and the Okavango fall within an area which is also a favourable one
compared to the rest of the Territory 8•
3. Paragraph 4.
The 1951 census figure given in this paragraph is correct. Respondent
is not called upon to reply to the alleged 1958 estimate, and refers to
particulars of the 1960 census as given below 9•
It is admitted that one of the classifications employed for census
purposes, is the one referred to by Applicants. 1n addition, the official
census classifies the total population in groups according to the geo
graphical distribution, home language, sex, occupation, etc., of individual
members thereof. "
4. Paragraph 5.
ln this paragrà.ph Applicants state why they refer to the varions
population groups in the way they_ do', and Respondent is not called
1 The Report of the Committee of South \\'est Africa quoted in respect of the
relevant sentence in para. 3 of the l\Iemorials contains no figures relating to the
areas of the two sections.
2 Vide Book Ill, Chap. I, para. 15.
J Ibid., para. 29.
• Ibid., para.Jl.
' Ibid., para. 32.
~ Ibid., para. 25.
1 Ibid., para. 33 and Map 9.
8 The north-eastern large stock and sub-marginal cropping region.
9 Vide para. 5, in/ra. COUNTER-MEMORIAL OF SOUTH AFRICA 4PI
upon to reply thereto. Respondent would point out; ho.yever, that the
, Territory's population is a heterogeneous one, ~d. th_atthe classification
. thereof in various groups for various purposes is not an ·artificial or
arbitrary one, as Applicants would seem to suggest. It will have been
seen that the terms "Whites" and ":Europeans" are used in the Counter
Memorial to denote the same population group.
The allegation that the division of the population intogroupsreflects
"differences in the legal, as well as in the economic and social, status of
the inhabitants", will be dealt with in reply to Applicants' specific
allegations in this regard.
5. Paragraph 6.
The allegations in this paragraph regarding the 1951 census are
admitted. H.espondent repeats that it is not called upon to deal with
the alleged 1958 estimate.
According to a census taken in 1960, the numbers of the varions
sections of the population referred to by Applicants, were as follows:
Natives . 428,575
Whites . 73,464
Coloureds 23,963
Asiatics . 2
Total .. ~26,004
A division into the main population groups of the Territory, gives
the following result 1 :
Approximate %
Croups Total of
population
I. Bushmen. n,762 2.24.
2. Dama 44,353 8.43
3- Nama 34,806 6.62
4. Herero. 44,588 8.48
5. Ovambo 239,363 45.50
6. Okavango 27,871 5.30
7. Caprivi .. 15,804 3.01
8. Rehoboth Basters , II,257 2.14
9. Other Coloureds . . 12,708 2o42
ro. White or European
Group (Afrikaans,
German and English
speaking) .. 73,464 13.97
) faona . . 2,632 0.50
II. Xhosa .. 601 O.II
Other {not
classified) . 6,759 I.28
Total 526,004 IOO
1 Departrnentalinformation (South African Bureau of Census and Statistics). The
total Nama-speaking group has been divided into the Dama and Nama groups by
the South \Vest African Administration on the basis of reports and information
obtained !rom officiais.402 SOUTH WEST AFRICA
6. Paragraph 7.
The figures quoted are correct, save that the population of the Police
Zone was 206,169, not 203,169, and that it included three Asiatics. Ac
cording to the census taken in 1960 the populations of the Police Zone
and of the area outside the Police Zone were as follows:
Outside the
Police Zone Police Zone
Natives . 170,720 257,855
Whites . 73,I06 358
Coloureds 23,954 9
Asiatics . 2
Total. 267,782 258,222
The higher density of population in the area outside the Police Zone
is to be ascribed to the more favourable conditions for agriculture in
the sector 1as well as to historical circumstances 2•
7. Paragraph 8.
The statement that the vast majority of the population outside the
Police Zone live in the Ovamboland Native Reserve is correct. Respon
dent is not called upon to comment on the alleged 1956 estimate.
According to the census taken in 1960, the Native population of
Ovamboland numbered 203,666, \Vhite persons 195, and Coloureds r.
The figures for the other areas outside the Police Zone were, according
to the same census, as follows:
Eastern
Kaokoveld Okavango Caprivi
Natives . I0,099 28,252
Whites . 34 !04
Coloureds 2
8. Paragraph 9.
This paragraph is admitted. The significance of the classification of an
area as "urban" is that urban local government as known to Europeans,
is in force in the area. Beyond the Police Zone, there are no towns or
villages of the European type, théNative mode of living being different.
Furthermore, such limited local concentrations of people as may be
found there, fall under the authority of traditional Native institutions,
and not under the type of municipal institutions in force in the Euro
pean towns of the Police Zone.
1 Videpara. 2 {d), supra.
2 Vide Book V, Sec. B, Chap. IV, para.1, of this Counter-Memorial. COUNTER-MEMORIAL OF SOUTH AFRICA
9. Paragraph ID.
The 1951 census showed the home languages of the White population
to be as follows :
English and Afrikaans . 273
English . 4,158
Afrikaans 33,091
German II,931
Other .. 477
49,930
In 1960, according to the census held in that year, the position re-
garding home language was as follows:
English and Afrikaans . 397
Afrikaans 49,422
English 6,280
German 16,533
Other . 832
The nationalities at the time of the 1951 census were as follows:
South Africa . . . . . 41,048 {
South Africa naturalized 4,391 \ 45,439
British Commonwealth 237
Germany ... 3,493
Other countries 761
49,930
The reference to "mid-1958" in paragraph IO is not understood. The
figures quoted refer to the 1951 census, as will be seen from the above.
In regard to nationalities, the figures of the 1960 census are not yet
available, but Respondent agrees that by far the greater part of the
White population consists of South African citizens. CHAPTER IV
RESPONDENT'S POLICIES: THE SITUATION IN 1920
A. Introductory
- r. The policies applied by Respondent in its administration of South
West Africa were from the outset shaped largely by circumstances pre
vailing in the Territory. ln this regard, the basic situation as Respondent
found it at the inception of the Mandate has been sketched above 1•
As has been shown 2,the natural erivironment of South West Africa is
to a large extent unfavourable for man's purposes and displays great
diversity, resulting in special problems of administration and de
velopment. The adverse physical environment places a premium on the
role of man in realizing the limited and diverse natural potential of the
.Territory 2•
· On the assumption of the Mandate, Respondent was faced with the
task of achieving the ideals of the Mandate, paying due regard to eco
nomic potentialities and human material within the Territory. Both
these elements had been affected by events prior to the ~ant of the Man
date. In the following survey, Respondent will give a bnef account of the
facts and circumstances which determined, and in many cases dictated,
the policies applied.
B. The Economy of the Territory
2. One of the. basic determinants of Respondent's policies was the
nature and extent of the actual and potential economic activity in the
Territory as at the stage when the Mandate was assumed. In this regard
there was a sharp distinction between conditions in the Police Zone and
those in the areas outside the Police Zone. The economic life of the latter
areas had hardly been affected by the German regime, except in so far as
some migrant Ovambo labourcrs were employed in the mines at Tsumeb
and Luderitzbucht. The tribes in those areas wcre therefore still engaged
in their traditional economic life. All production was purely for sub
sistence, and the economic system was severely limited and static.
3. The position in the Police Zone was entirely different. The ,vhole
German colonial effort had been concentrated on this area, and the
foundations of a modern exchange economy had in part been laid. For a
proper appreciation of the possibilities and problems inherent in the
economic situation in the Police Zone, it will be necessary to give a brief
résuméof economic conditions prior to Respondent's assumption of the
Mandate.
1 Vide Book III, Chaps. I, II and III, of this Counter-:lfernorial.
2 VideBook III. Chap. 1, of this Counter-Memorial. COUNTER-MEMORIAL OF SOUTH AFRICA
EXPORT TRADE
4. In pre-colonial times and during the German regime, South West
Africa produced very few items for export. Thus during the first half of
the nineteenth century, economic activity for purposes of export was
virtually limited to the exploitation of the coastal assets in the form of
:Vhaling, sealing and guano by English, French, Dutch and American
mterests 1•
Trade with the interior also assumed some importance towards the
latter half of the nineteenth century, the principal export products being
ivory and wild ostrich feathers, both products of the hunt which were
high in value and low in bulk or weight 1.Under the German adminis
tration the picture remained much the same until 1907. Coastal products
continued to be the most important export items, while ivory, ostrich
feathers and skins accounted for the main exports coming from the
interior. In 1897, for example, guano exports amounted to f55,ooo out
of total exports to the value of f62,ooo 2•
5. This situation was drastically changed by two occurrences. With
the completion of the narrow-gauge railway between the coast and the
north-eastern part of the Territory after 1907, copper mining could be
undertaken on a considerablc scale. The export value of copper ore from
the interior averaged nearly .f3oo,ooo per annum in the years between
1909 and 1913 3.
A second, and even more important event affecting the Territory's
export trade, was the discovery of diamonds along its southern coastal
area in 1908. The value of diamond experts increased from [2,600 in
1908 to f771,800 in 1909; fr,343,500 in 19rn; fr,151,700 in 19n;
[1,520,700 in 1912 and fz,945,500 in 1913 •.
1n the five years endJng 1913 minerai exports (including diamonds)
accounted in value for no Jess than 95 per cent. and diamond exports
alone for more than 75 percent., of the total exports. In 1913 diamonds
rcprescnted over .Bopercent. of the total exports 5•
6. For almost the whole period of the German regime, imports into the
Territory exceeded exports. Between the years 1897 to 1907 the most
favourable ratio of exports to imports was in 1903, when the value of
exports amounted to 43·per cent. of the value of imports (f172,ooo as
against [397,000}. The least favourable ratio during this period was in
1906, when exports amounted to only 6 percent. of imports (f8r,ooo as
6
against [1,620,000) • The value of imports continued to cxceed that of
exports until 19n. In 1912 and 1913 the position was reversed for the
first time. Exports in 1912 amounted to f1,952,ooo and imports to
[1,625,000. The position improved still further in 1913, when the corres
ponding figures were .l3,515,ooo and {,2,171,000 7• As was indicated above,
1Vedder, H., South West Africa in Early Times (1938),pp. 16-17.
2Trade and Shipping in Africa,C. 9223, p. 33.
3 Schnee, H., Deutsches Kolonial Lexikon (1920). Vol. 1, p. 436Memorandurn on
the country known as German West A/rica ( 1915), p. 58. ·
• Schnee, op. cit.p. 451.
5 Ibid.,p. 436.
6 Schnee, op. cil.Vol. II, p. 34.
7 Ibid.,Vol. 1, p. 436. SOUTH WEST AFRICA
the favourable export position was entirely dependent on the production
of minerais, and, in particular, diamonds.
REVENUE
7. The administration of South West Africa proved to be expensive for
Germany. Up to 1906 the Imperia! Government subsidized the Territory
in more than one way to an amount of f+7 million, in addition to internai
war expenditure amounting to about fr6 million, giving a total of about
{,21 million for the first 22 years of German occupation 1.Only a small
part of this total amount was invested in lasting economic benefits,
such as public buildings and railway and harbour facilities, the bulk
being connected with military operations which were of a destructive
nature from an over-all long term point of view of economic develop
ment 2•
After the wars which ended in 1·907,and particularly after the discovery
of diamonds, the position improved considerably. Nevertheless, an ordin
ary subsidy was paid to the Territory until 19n, and a military subsidy
amounting to about f?oo,ooo per annum was still paid during the last
three years of the German regime 1.In addition, considerable government
loans were advanced for the financing of development projects 2•
It is apparent therefore that at no stage during the German regime was
South West Africa self-supporting.
8. The progress made in the direction of fiscal self-sufficiency during the
last years of the German period was dependent largely on diamond
revenue, which in the years 19rn to 1913 annually constituted between
47 percent. and 65 percent. of the total ordinaryrevenueof the Territory,
and amounted to about a third of the total value of diamond exports 3•
AGRICULTURE
9. During the last years of the German regime, great emphasis was
placed on the development of the Territory's agricultural potentialities,
and public funds derived from the high diamond taxation were to a large
extent divertedtowards this end. Progress was, however, slow and costly,
due mainly to adverse geographical features, cspecially the necessity for
securing water facilities, and to inaccessibility of markets. In 1913
immigrants were officially advised that capital to an amount of at least
f2,ooo to f2,500 was required to develop a farm under normal con
ditions in the Territory.
ro. Although the number of fanners did not increase greatly during
this period, the growth in livestock numbers was more impressive. Thus
the number of cattle increased from 96,140 in 1909 to 205,646 in 1913,
and sheep from 280,644 to 554,641 in the same period ~. With the ex
ception of wool and skins, practically the whole agricultural production
was disposed of in the local market. The growing livestock production
was however on the verge of exceeding local demand at the outbreak of
1 Schnee, op.Git.,Vol. I,p.6zz.
Ibid., Vol.III, p. 3r5.
3 Ibid., Vol. I, p. 62 r.
• U.G. 16--1935, para. 30, p. 5. COUNTER-MEMORIAL OF SOUTH AFRICA 407
the First World War, and there is evidence that the question of finding
external markets was being seriously investigated 1•
RAILWA.YS AND HARBOURS
II. Reference has been made to the construction of railways in the
Territory during the German period 2•
By 1915 the Govemtnent controlled and operated more than 1,310
miles of railways in the Territory, while private lines measured a distance
of 152 miles 3. During the period of military occupation, the South
African authorities connected this system with the South African rail
ways, while the railway to Swakopmund was extended to the Walvis Bay
harbour 4.This had the effect of placing markets in South Africa and
overseas within easier reach of producers in South West Africa.
C. The Population
12. The population of the Territory reflected the same divergence
between the Police Zone and the areas beyond it as was referred to above
with reference to its economy. The areas beyond the Police Zone, con
sisting as it did of the territories of the Kaokoveld, Ovamboland, the
Okavango and the Caprivi Zipfel, resembled at least four independent
countries. These areas were all largely unaffected by contact with Euro
peans, as well as with one another and with the inhabitants of the Police
Zone, but wide diffcrences in language and custom existed between
5
their inhabitants •The Eastern Caprivi Zipfel was the only one of these
four areas to be actively administered by the German authorities, and
even there the control was of an indirect nature, being exercised through
the traditional tribal authorities 6_
13. In the Police Zone, on the other hand, Respondent found various
Native groups which had been in contact with one another for at least
a century. This contact had not led ta the creation of a common society
-on the contrary, tribal and racial differences, and conflicting daims
to land, had Ied to continua! bloodshed, resulting in the subjugation or
even extermination of the weaker by the stronger.
14. By 1920 the traditional tribal economies of most of the Native
inhabitants of the Police Zone had been shattered by wars and by the
measures taken by the German authorities to restrict or limit the holding
of livestock by Natives 7• According to German statistics for 19r3,
approximately 80 percent. of the total non-White adult male population
in the Police Zone including migrant labourers were employed as wage
earners by White households, fanners, mines and other business enter
8
prises and the Government •
1
U.G. 16-1935, para. 30, p. 5.
2 Vide Book III, Chap. III, paras. 74 and 82, of this Counter-Memorial.
3 U.G. 16-1935, para. 25, p.+
• Ibid., paras. 34-35,p. 6.
5 Vide Book III, Chap. II, of this Counter-Memorial.
6 Ibid., para.II, of this Counter-Memorial.
7Ibid., Chap. III, paras. 84-85, of this Counter-MemoriaL
8Die deutschen Schutzgebiete in Afrika und der Südsee, r9r2-I9I3, Berichtsteil,
p. 130. SOUTH WEST AFRICA
.I5, The absorption of the non-White population in the money economy
of the White group did not lead to the creation of an integrated society,
even among the Native groups. Each group still regarded itself as different
from the others.
To a certain extent different provision was made for the various groups
by the German authorities. Thus the Bergdama were confirmed in the
possession of their reserve at Okombahe, and the Basters enjoyed a
certain measure of autonorny in their Gebiet at ~ehoboth. VariousNama
tribes were perrnitted to graze their stock on specified pieces of land,
while the Herero, on the other hand, had been denied possession of both
cattle and land.
16. The most significant difference amongst the population groups
in the Police Zone existed between the \Vhite group, on the one hand,
and the varions non-White groups, on the other. ·The White group
consisted of civil servants, soldiers, traders, bankers, farmers, etc., and
was in control of the economic activity and administration of the Terri
tory. Many members of this group. were Gerrnans, but even before the
First World War a number of farmers were South Africans, and the war
witnessed further immigration of South Africans, particularly civil
servants.
The various non-White groups, however, possessed neither the ex
perience nor the training to play any significant role in the administration
of the Territory, or as entrepreneurs in its economic life. They-were for
the most part illiterate, and their contact with modern skills and in
particular with the money economy, had been of short duration and·
limited extent.
17. A further factor relating to the population of the Territory which
was to affect future policy, was that, as a result of the wars preceding the
assomption of the Mandate, the Natives in the Police Zone had become
dispersed over the Territory, and in many cases separated from their
tribes, clans or families, and unable to exercise their traditional economic
pursuits. In consequence the Native population was to a large extent
unsettled and disaffected. ln addition a substantial proportion of the
population had in former years made a living out of brigandage, and,
as has been shown, cattle raiding had previously played a large part in
the lives of many of the inhabitants of the area. Habits and attitudes
which had arisen in this period, still persisted when Respondent assumed
the Mandate, thus presenting a serious problem in securing elementary
safety for the persans and property of the people of the Territory.
18. A further result of the wars in the Southern part of the Territory
in pre-mandate times, is evident from a comparison of relevant population
statistics. Thus Palgrave had estimated the total non-White population
of the area later known as the Police Zone as 137,850 in 1876 1,and the
German governor Leutwein as between rr8,ooo and 144,000 in 1892 2•
According to German statistics, the non-White population of the Police
Zone (excluding migrant labourers) numbered 75,185 in 1913 3• On
4
analysis, Respondent's report to the League of :Nations for 1921 gives an
1
2 Palgrave' s Report, pp. 83 and 94, i.e., of Damaralanand :N:amaland.
3 Leutwein, T., El/ Jahre Gouverneur in Deutsch-Südwesta/Yika (1908), p. 11.
Die deutschen Schutzgebîete in Afrikaund der Südsee, r9r2-r9r3, Berichtsteil,
p.130.
• U.G. 32~1922, p. 12. COUNTER-MEMORIAL OF SOUTH AFRICA
estimate of under 84,000. Although the reliability of these figures may be
questioned, they nevertheless point to the fact that the Police Zone had
in pre-Mandate days carried a much larger population than that found
in the Territory by Respondent.
D. Summary of the Situation in z920
19. To sum up, the situation as found by Respondent in 1920 revealed
a wide divergence between conditions outside the Police Zone, and those
inside.
20. Outside the Police Zone, the social, political and economic lives
of the inhabitants were virtually untouched by contact with the \Vhite
man.
21. Inside the Police Zone, the salicnt features were as follows:
(a) A modern economy had been developed by the White population~
the major export products of whîch were minerals, and, in particular,
diamonds.
(b) The revenue of the Territory was also largely dependent on the
production of diamonds, and had never been sufficient to cover the
costs of administering the Territory.
(c) The only other possible source of revenue which was. apparent
at that stage, was livestock farming. Progress had been made in this.
field, but it had been limited and retarded by the high capital
expenditure required, and the inaccessibility of markets.
(d) The Territory was served by an extensive railway system, which
had been joined to that of South Africa during the war.
(e) The traditional tribal economies of the Native tribes had been
shattered, but wide differences between the varions groups were shll
found, and each group retained its own identity.
(f) The Native inhabitants did not possess the skills required for modem
economic or administrative activities.
(g) The Police Zone was considerably underpopulated.
E. The Implications Arising from the Situation in 1920
L THE NECESSITY FOR DIFFERENTIATION
22. The wide differences between the population groups found by
Respondent in South West Africa necessitated policies involving differ
entiation between the variousgroups. No over-all policy of administration
and developmcnt would have been suitable both for the Police Zone
and for the northern areas. And within the Police Zone itself, the different
levels of developmen t between the groups called for differential trea tmen t.
This was so not only as between the Europeans and the indigenous
peopies genera!Iy, but also as between the indigenous groups inter se. Fcir
example, a pa:rticular policy, which might have been beneficial for the
Herero, could havé had disastrous effects if applied to the Bushmen.
Furthermore, the desire of the various groups to retain their separate
identities, which desirè was ii:tmany cases iooted in traditionalenmities
ôr prejudices, was a factor which no government could afford to ignore.4IO SOUTH WEST AFRICA
Il. THE ROLE TO BE PLAYED BY THE EUROPEAN POPULATION
23. By reason of the stage of development of the non-White population,
and the nature of the Territory, administration and development in the
whole of South West Africa required White leadership and initiative.
Indeed, the realization of this basic fact by the authors of the mandate
system was implicit in the grant of the Mandate to Respondent.
24. The extent to which White involvement was necessary, varied as
between the different sections of the Territory. In the areas outside the
Police Zone there existed functioning political, economic and social
organizations. The need for White leadership and guidance in those areas
related primarily to the preservation of peace and the promotion of the
general advancement and development of the inhabitants.
25. Inside the Police Zone the situation was entirely different. The
tra_ditional social, political and economic organizations of the Native
groups had ceased to fonction. The primary needs of the inhabitants
related, therefore, to basic aspects of life. Amongst these were the ne
cessity of an organized administration which could provide certain
elementary protections, including those envisaged in the provisions of the
Mandate relating to abuses such as forced labour, traffic in arms and
ammunition, and the suppl y of liquor. Law and order had to be preserved,
and peace secured, among peoples with a long history of violence and
bloodshed. Opportunities to earn a living had to be maintained and
created, and provision made for housing, medical services, etc.
26. It is apparent that the Native inhabitants were not in a position
in 1920 to provide even the elementary requirements set out in the
previous paragraph. They were incapable of managing or administering
the mines, railways, harbours, hospitals and civil service (including
police) \vhich had, in the circumstances of 1920, corne to play an in
dispensable role in the Police Zone. Consequently, merelytornaintain the
primary elements of the status quo required the presence of a number of
Europeans in the area.
27. However, as has been pointed out, the German authorities never
managed to raise sufficient revenue to cover their costs of administration,
and they were in later years largely dependent on minera!, and, in par
ticular, diamond, taxation. Apart from the fact that these products
constituted wasting assets, their prices fluctuated considerably, as was to
be dramatically demonstrated in later years. In the general atmosphere
prevailing in 1920, the concept of finandal aid by international agencies
or others to underdeve!oped or non-viable States was an unknown one.
It was consequently implicit in the situation in South West Africa as
Respondent found it, that additional sources of income and revenue had
to be created, if only for the purpose of balancing the budget and making
provision for possible unfavourable conditions in later years. The creation
of such additional sources was even more essential if any attempt were
to be made to raise the standard of living and promote the progress of the
inhabitants of the Territory. In this regard, Respondent was required
under the Mandate to extend its responsibilities also to the areas beyond
the Police Zone, which would involve expenditure from which the German
authorities had been exempt.
28. It would have been idle to expect the Native inhabitants of the
Police Zone to provide the capital, initiative and entrepreneurial skill COUNTER-MEMORIAL OF SOUTH AFRICA
required for exploitation of the resources of the Police Zone for the
purposes set out above. Their general level of development was far
too low to enable them to play the dynamic role in mining, agriculture,
commerce and industry which was necessary to broaden the economy,
as well as to stimulate exports, increase revenue and create sources of
employment. The main emphasis in developing the country consequently
had ta fall on European skill and initiative.
29. In relation specifically to agriculture, the stimulation of White
initiative was the more necessary since the indigenous tribes were un
acquainted with the concept of producing stock for the market, and were
generally averse to parting with their cattle, the possession of which
was important to them from the point of view of status and/or religion,
with a resultant emphasis on numbers rather than quality. Any attempt
to exploit the markets of South Africa (which was the only market
available, since it had been rendered accessible by rail) 1required a
standard of product which could overcome the disadvantages inherent
in the long distances involved, and could compete successfully with
animais raised in better situated areas. Farming of this type required
capital, skillnd attitudes entirely foreign to the Natives of the Terri tory.
And no shortage of land existed to prevent the immigration of progres
sivefarmers-indeed, as has been shown, the Police Zone had previously
carricd a much larger population than that found by Respondent, and
could by the adoption of better methods of exploitation and prcservation
of water supplies, provide a livelihood for a still greater population.
III. THE ROLE OF THE NATIVE POPULATION
30. The same factors which dîctated the development of the Police
Zone by means of White capital and initiative, lcd inevitably to the
result that the only role which the Native population could initially
,play in the money economy was by providing labour, which, in the first
mstance, was entirely unskilled. The unfamiliarity, or very brief acquaint
ance, of the unskilled and for the most part illiterate Native workers
:Vith the aims, requirements and demands of modern economic life,
m turn cailed for the adoption of measures to guide and assist them
in the dîfficult transition upon which they were engaged from their
earlier means of subsistence to the exigencies of paid employment; this
factor also called for measures to regulate the supply of labour so as to
obviate the existence of unemployment in some areas while there was
an unsatisfied demand for labour in others.
3r. Although the provision of the basic essentials of life, such as
or portunities for employment, housing, medical services, protection
o life and property, etc., for the Native population was the first task
with which Respondent was faced on assumption of the Mandate,
this did not constitute the sum total of Respondent's obligations. In
addition Respondent was required to promote the development of the
peoples of the Territory. However, the very circumstances which in
the first instance determined the position of the Native population
in the White economy as that of unskilled labourers, rendered it inevi
table that their development, both in the Police Zone and in the northern
areas, would be a slow process. The complexity of the factors involved
1 Vide para.11,supra.412 SOUTH WEST AFRICA
in a transition from a traditional economic and social system to a modem
one, and the resultant undesirability and even impossibility of forcing
the pace in this respect, have been frequently emphasized.
32. The main problem which, according to experts, is inherent in
such a transition, is that of an unavoidable clash between the two
objectives of social security and well-being, on the one hand; and
economic progress in the modern sense, on the other. Professor Frankel,
a well-known economist, says in regard to this dilemma:
"... in all African territories the development of modern methods
of economic organization is in greater or lesser degree accompanied
by increasingly rapid disintegration of the indigenous economic
and social structure. However primitive those indigenous institu
tions may now appear to Western eyes, they did in fact provide
the individuals composing the indigenous society with that sense
of psychological and economic security without which life loses
its meaning 1_" · ,
And other authorities on the subject of socio-economic development in
underdeveloped countries have expressed the view that: "Genera!ly
a slow but steady development is likely to create fewer political, social
and economic tensions 2." In a recent United Nations report it is stated
that: ·
"the problem of how to enable the indigenous populations to raise'
their own standards of life without exposing them to the harmful
effects of disintegration which accompanies the break-up of the tribal
order and security, is one of the major problems of social and econo
mic policy in many dependent Territories 3".
The complexity of changing the ways of life of. a society is also
referred to by B. F. Hoselitz. He writes that-
"to adapt another society to new ways of living involves the forrr:i
dable process of reshaping basic habits that are manifest both m
belief and in behaviors. It calls for an induced shift in pre:established
ends.and a directed re-orientation of value systems 4."
Disintegration of the tradïtional systems of control can give rise
to _destructive emotional patterns. ln this regard, Hoselitz refers _to
China as well as Africa. He says that cultures in these two countnes
are deeply rooted in traditions of the continuity of ancestral generatio.ns.
In such circumstances: "it is not difficult to see how the derogat10n
of established ways, even by implication, can arouse both latent and
manifest hostilities" s. . .
N. S. C. Jories is more explicit on the effec'ts of attempts at rapid
change. He sa·ys that, in the process of adaptation, a social "gap"
occurs when the old ways have become obsolete and the new ways have
not matured. The gap tends to be filled by revolutionary politics:
"The social strivings of the individual find no outlet and their
place is taken by emotional yearnings of any kind which, in the
1 Frankel, S. H., The Economie Impact on Under-developed Societies (1953), p. 134.
2 Bauer, P. T. and Yamey, B. S., The Economies cf Under-developed Countries
(1957), p. 71. .
3 U.N. Doc. ST/TRI/SER. A/13, p. 131. .
• Hoselitz, B. F., The Progress of Under-developed Areas, p. 90.
5 Ibid.,p. III. COUNTER-MEMORIAL OF SOUTH AFRICA 413
hands of a few forceful 'leaders',. take the common forms of class
and race and colour hatred 1," .
, 33. It has also been remarked füat the stage to modern economic
_growth which follows the. timeless state of traditional socio-econom_ic
-organization extends over "a long period (up to a century or, conceivably,
more)" 2• . ·
Whilst .it is, of course, impossible to state in general terms how much
-time is likely to· be required to achieve this transition in a particular
·situation, experts on the subject are agreed that the process is a long one,
particularly because it also involves the change of a number of socio
.-cultural and other non-economic factors. It has been said that:
"Investment in human resources is usually a lengthy process;
and to be economically effective it may require far-reaching social
changes which are also likely to take much time 3,"
.and that:
"... capital formation in the ordinary sense of the term cannot
shorten this time appreciably: in at lea.st one important sense
capital cannot buy time ... 4"
In ·regard to changes in the agriculture of traditional societies, it
.ha.sbeen said that "the organizational changes required for agricultural
..innovations affect some of the most deeply rooted features of traditional
.socièty" 5 ,and with reference to the conservatism of traditional pas
toralists, like the Herero, a well-known authority has stated:
"Conservatism and adaptation are, of course, cultural reactions
which cannot, or only to a limited extent, be prevented or brought
about b'y outside pressure. Where for instance, a political, social
and economic system is smashed by force as was that of the Herero,
this does not necessarily prevent a conservative cultural attitude
from maintaining itself over a 'long period of time, even in the
face of adverse outward conditions. Similarly, adaptation must
corne from within; it is a response which a culture must achieve
by itself. It can never be effected from outside though conditions
favourable toits achievement may be created 6."
34. Prof. Frankel has pointed out ·that it took Europe several cen
turies to envolve the enterprising and dynamic human qualities which
:make for modern development and "capital accumulation". He writes:
· "To repair and maintain; to' think of to-morrow not only of
to-day; to educate and train one's children; to prepare oneself for
new activities; to acquire new skills; to search out new contacts;
to widen the horizon. of individual experience; to invent, to im
prove, to question the 'dead hand of custom', and the heritage
1
Jones, N. S. C., The Pattern of a Dependent Economy (r953), p.12r.
z Rostow, ,V. W., "The Take-Off into Se!f-Sustained Growth", in The Economie
Journal (1956), p. 27.
J Bauer and Yamey, op. cit.p. 129.
• Ibid., p. 130.
5 Millikan, M. F. and Blackmer, D. L. ;u. (eds.). The Emerging Nations, their
;growth and United States Policy (l96r).p. 52.
6 Wagner, G., "Sorne Economie Aspects of Herero Life", in African Studies,Vol.
.l3, No. 3-4 (1954),p. rrg. SOUTH WEST AFRICA
of the past-in ail these, and not in mechanical calculations, or
mechanical regimentation, lay the causes of capital accumulation 1."
He also says that development does not depend on the formulation of
abstract goals or the enforcing of decisions, but on the piecemeal
adaptation of individuals to objectives-
"which emerge but slowly and become clearer only as those indi
viduals work with the means at their disposai; and as they them
selves become aware, in the process of doing, of what can and ought
to be done next 2".
Discussing the same aspect, a United Nations document declares
that, if it is to be a smooth and not unduly painful process, the transition
from rural peasant to urban industrial worker is not one that can be
greatly accelerated. It requires, at the point of departure, emancipation
from the dictates of custom and tradition; and, at the places of employ
ment, adjustment to an unfamiliar kind of work and labour discipline
3
and to a new type of social environment •
35. For the reasons aforestated, it was inherent in the situation in
South West Africa at the tirne the Mandate was assumed that for.a long
time in the future any system of administration and development
would have to be based on White leadership and initiative, and that the
development of the indigenous races would perforce have to be a slow
process. This in turn emphasized the need for differentiating between
groups according to their various levels of development.
F. A Policy of Differentiation Was in Keeping with the Conceptions of
the Times
36. As has been stressed in the aforegoing, the cîrcumstances inherent
in the situation in South West Africa itself at the time when the Mandate
was granted, were the basic motivating factors as far as policies were
conccrned, and rendered inevitable differential treatment as bctween
various population groups. However, with a view to a proper evaluation
of Respondent's policies and practices, as set out below, it is relevant
also to note that at the inception of the Mandate, and for years thereafter,
it was generally accepted as sound policy that provision should be made
for differentîal treatment of population groups which had different
backgrounds and were at different stages of development. In r9r7
General Smuts said, referring to political rights of the various groups
in South Africa:
". . . although in this regard nothing can be taken as axiomatic
we have gained a great deal of experience in our history, and there
is now shaping in South Africa a policy which is becoming expressed
in our institutions which may have very far-reaching effects in the
future civilization of the African continent ... a practice has grown
up ... of creating parallel institutions-giving the natives their
own separate institutions on parallel lines with institutions for
1 Frankel, S. H.,op. cit., pp69-70.
2 Ibid.,p.95.
3 U.N. Doc. ST/ECA/29, p.21. COUNTER-MEMORIAL OF SOUTH AFRICA
whites. It may be that on those parallel lines we may yet be able
to solve a problem which may otherwise be insoluble ."
The experiment, General Smuts pointed out, wa.s not a new one:
"It has now been in progress for some two hundred and fi.fty years as
you know, and perhaps the way we have set about it may be the right
way 2." He explained what that "way" was in the following terms:
"Instead of mixing up black and white in the old haphazard way,
which instead of lifting up the black degraded the white, we are
now trying to lay down a policy of keeping them apart as much as
possible in our institutions. In land ownership, settlement and
forms of government we are trying to keep them apart, and in that
way laying down in outline a general policy which it may take a
hundred years to work out, but which in the end may be the solu
tion of our Native problem ."
The result would be, General Smuts said:
", .. you will have in the long run large areas cultivated by blacks
and governed by blacks, where they will look after themselves in all
their forms of living and development, while in the rest of the
country you will have your white communities, which will govem
themselves separately according to the accepted European princi
ples. The natives will, of course, be free to go and to work in the
white areas, but as far as possible the administration of white and
black areas will be separated, and such that each will be satisfied
and developed according to its own proper lines 4."
And, addressing the Paris Peace Conference in Igrg with reference
to South West Africa, he stated:
"A white community in South Africa had been established there
for two or three centuries. It had clone its best to give a-form of
self-government to three million natives, and its policy had been
tested and found good. It was suited as much to the whites as to
the natives, and this policy should be applied to the natives in
South-West Africa ... The community to which he belonged had
been in South Africa since I650. They had established a white
civilization in a savage continent and had become a great cultural
agency ail over South Africa. Their wish was that one of the effects
of the great settlement now to be made should be to strengthen
their position and to consolidate the union of the white races in
South Africa. The Boer pastoralists were always looking for un
inhabited country in which to settle. He was quite sure that if
German South-West Africa wcre given by the Conference to the
Union its work in this respect would be good 5,"
37. The States represented at the said Conference could hardly have
been unaware of Respondent's policy of differentiation. In this regard
General Smuts said in I947:
1 Smuts, J.C.,Toward a Better World (1944),p. 11.
2 Ibid., p.S.
3 Ibid.,p. I2.
• Ibid.,p. 13.
s For. Rel. U.S.: The Paris Peace Conference, I9I9,Vol. III, p. 723. SOUTH WEST AFRICA
"The Great Powers which at the Paris Peace Conference had
entrusted the Mandate to the Union, had been ,yell acquainted
with the Union's native policy. Nothing in that policy had deterred
1
them from entrusting the Mandate to the Union ."
· The same view had been expressed in 1927 by M. Freire D'Andrade,
a member of the Permanent Mandates Commission, wlien he stated that:
"[He] ... agreed with the accredited representative that Article
22 of the Covenant did not stipula.te that only the native should
be Iooked after, but spoke of the inhabitants of the territory,
which included; therefore, everyone: He had often emphasised this
fact. The experience of the Union of South Africa in dealing with
the problems in that continent was of the longest. If its system
of laws and the general principles which it applied had been un
satisfactory, why had the mandate been assigned to it ... ? The
fact that it had been so assigned would seem to show that the
system, which was weU known, had been approved. The Commis
sion should never forget the very special conditions under which
the mandate had been entrusted to the Government ·of South
Africa. He would add from his own experience that, when,travelling
throughout South Africa, it was easv to understand why the system
adopted. was a good system. In sorne places in that territory, the
natives were so advanced as to have the right to vote. Certainly
no other colony that he had visited was in such a high state of
civilization. He would therefore conclude that the system adopted
by South Africa in regard to the natives was one upon which
reliance could be placed 2." ' ·
38. I t is clear from reports of the Peace Conference that the desirability
of applying Respondent's Native policy to the Territory was, in fact,
one of the f~ctors which influenced at least some of the delegat~s to form
the opinion that South West Africa "can be best administered'' under
the laws of South Africa as an integral portion of its Territory 3• Thus
Dr. G. L. Beer, the alternate United States member of the Commission
4
on Mandates and at that time chief of the colonial division of the
American delegation at the Conference, said with ·reference to South
West Africa:
"The development of this territory would be gravely handicapped
if it were administered entircly apart from the adjoining Union
of South Africa, with distinct native, fiscal, and railroad policies
and systems 5." (Italics added.)
And it will be recalled that President Wilson hirnself said: "If South
Africa managed South West Africa as well as she had managed her own
country, then she would be married to South West Africa 6."
39. lndeed, the necessity for differentiating between varions groups
was implicit in the whole mandate system. Thus Article 22 (3) of the
1 G.A ., O.R., First Sess., Second Part, Fourth Comm., PartI, 19th Meeting, 13
Nov. 1946,p. 101.
2 P.M.C., Min., XI, p. 101.
3 Art. 22 (6) of the Covenant.
• Vide Book II, Chap. Il, para. u, of this Countcr-Memorial.
' Beer, G. L., African Questions at the Paris Peace Conference (1923), pp. 443-444.
~ For. Rel. U.S.: The Paris Peace Conference, r919, Vol. III, p. 788. COUNTER-MEMORIAL OF SOUTH AFRICA
Covenant provided that the character of the various mandates should
differ, inter alia, "according to the stage of the develo]:!ment of the
people". And the sarne prjncip1e emerges from the specific provisions
of the varions mandates. In the case of South West Africa, although
it was Resp:mdent's duty to promote the interests of the "inhabitants
of the terntory" 1it was required to prohibit the supply of intoxicating
liquor only in respect of "the Natives" 2, and to prevent military
training of only "the natives" 3•
Similar provisions in protection of Natives appeared in the other
"C" Mandates, and also in the "B" Mandates, which latter, in addition,
contained safeguarding measures relating to "native land" 4• ·
40. In debates in the Permanent Mandates Commission, the neces
sity for differentiating between various groups was recognized. The
minutes for 1937 record the following discussion:
"The Chairman remarked that South West Africa differed from
other parts of tropical Africa in the striking inequalities that
existed between the physical and moral capacity and potentialities
of the different races living there. The principal cause was no doubt
to be found in the past history of the territory-that was to say,
in the dispersals and wars of the past. Tha.t inequality called for
great elasticity in the native administration and the adoption of
different rules for the various tribes to which they were applied.
Mr. Courtney Clarke said that this was indeed the case. One
might almost say that there was as great a difference between a
Herero and a Damara as between a Herero and a European; and
the difference between a Damara and a Bushman was almost as
great 5."
Further examples may be mufüplied. For the most part the necessity
of differentiation was considered by the Commission with reference to
specific aspects of administration, and the relevant discussions will be
dealt with when replying to Applicants detailed allegations. Reference
may however be made to the following ra.ndom examples of'statements
or comments by the Permanent Mandates Commission or members
thereof.
(a) ln r922 the Commission is recorded to have said:
"The Commission expresses the hope that the primitive ?rga~i
sation in tribes may be maintained unaltered wherever 1t still
exists 6."
(b) In 1923 M. Yanaghita expressed the view~
"that the mandatory Governments are to be commended on their
adoption of the principle of maintaining the former organisation
of the tribes, and of recognising the power of the chiefs up to a cer
tain point 7".
1
Art. 2 of the Mandate.
2Ibid.,Art. 3.
3 Ibid.,Art. 4. The supply of liquor to Europeans was clea.rly permissible-vide
.P.M.C., Min., X, pp. 86 and 176-177.
~ Vide for example, Art. 5 of the British Mandate for the Cameroons.
5 P.M.C., Min., XXXI, p. 138.
6 Ibid.,II, p. 49.
7 Ibid.,III, Annex 6, p. 282. SOUTH WEST AFRICA
(c) In 1924 the Commission was-
"of opinion that the soundness of the views which have prompted
the Administration 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 progres
sive increase in the population 1".
(d} In 1937 Mlle Dannevig-
"agreed that great precaution should be exercised as regards inter
ference with Native customs 2".
41. It is therefore apparent that the necessity for differentiating
between the different groups in South West Africa was not only inherent
in the situation as Respondent found it, but was also recognized by
the authors of the Mandate and by the Permanent Mandates Commis
sion. In addition, an approach based on this principle was in accord
with policies elsewhere in Africa, as will be demonstrated below 3•
2 Ibid.,XXXI,., p.Vr29. 154.
3 Vide Chap. VI A, infra. CHAPTER V
RESPONDENT'SPOLICIES:INITIAL PHASES
AND EARLY DEVELOPMENT
A. Introductory
I. The basic elements or considerations mentioned in Chapter IV
manifest themselves in aspects of policy relative to political and economic
development, and also in regard to certain other matters raised by Appli
cants in their Memorials, e.g., rights of residence, freedom of movement,
1
and education . Respondent deals with these specific matters in other
parts of this Counter-Memorial. Here the intention is to draw attention
only to certain basic aspects of policy, particularly in regard to the
politicat and economic spheres. In these respects also the exposition is
in broad outline only, more detailed treatment being contained in later
parts of this Counter-Memorial dealing specifically with the topics
concerned.
2. The situation as it existed in the Territory at the inception of the
Mandate, gave rise to the application by Respondent of certain policies
and practices which were natural, and almost inevitable, in the prevailing
circumstances. It should, however, not be supposed that Respondent
thought that such policies and practices would, or could, remain un~
altered as circumstances changed. It would have been impossible to
decide on any policy which could meet all future circumstances, and it
would have been unreasonable to attempt the formulation of a policy
which could meet all future developments and eventualities. Changed
drcumstances have, indeed, called for adaptations to existing policies,
and will no doubt do soin future.
In the paragraphs below Respondent will deal briefly with certain
facets of policy.
B. Importance of the European Population in Regard to the Economie
Development of the Territory, and the Implications Thereof
3. In the circumstances described above, and for the reasons stated,
it was obvious that the White group with its modem, albeit at that time
Jimited, economy, would necessarily have to form the basis of develop~
ment in the Territory, and that any development would require the
expansion of that group. This was particularly the case as far as the
farming industry was concerned. The Administration accordingly
encouraged the settlement in the Police Zone of White immigrants,
chiefly from South Africa, to assist in such development.
4. It was mainly under the Land Settlement Proclamations 2 which
1I, pp. 146-161.
2 Proc. No. I.J of 1920 (S.W.A.). inLaws of South West Af,ica :r9I5-I922pp.
219-no. superseded by Froc. No. 3ro (S.A.), in Laws of-South W~st A/rica I9z7,
pp. 22-82. 420 SOUTH WEST AFRICA
provided for the issue of leases to allottees, with the option to purchase,
and for the advance of moneys to lessees for the purpose of acquiring
stock, implements, etc., that settlers came to the Territory.
European land settlement was actively encouraged for the greater part
of the 1920s,when more than 1,000 farmers settled permanently in the
Territory; but, due to economic reasons, it came to a standstill in 1931.
When it was resumed in 1935, the Administration no longer granted
financial assistance to prospective settlers 1.
5. A Commission of Inquiry in 1936 referred, inter alia, in the follow
ing terms to the importance of the European population for the develop
ment of the Territory:
"Without the settlement of European fanners on the land within
the police zone there would have been hardly any development in
thatportionofSouth WestAfrica. Both the nature of the country and
ofits non-European inhabitants are such that there can be no question
of any real development in the Territory without the intervention of
the White man ... 3''
Later the Commission mentioned as a possibility which "[mightJ be
suggested" that Respondent could have "repatriated the Germans and
administered the whole country, like Ovamboland, as a native reserve".
The Commission proceeded:
"Apart from humanitarian considerations however, we are con
vinced that such a course would not have been possible ...
In view of the present stage of development of the Native and the
highly specialized nature of the only farming industries possible in
the country, it is clear that any administration which is not merely
negative in its effect, will, for a long time to corne, have to be based
on the European as a producer of revenue 4."
The Commission indeed described the "demographic position" in
the Territory as being that of a "White minority leavening the mass of
.the indigenous population" 5•
At a later stage Lord Hailey also had occasion to consider the European
settlement scheme in the Territory, and in that regard said:
"The economic policy of the Territory has, apart from other
considerations, been determined by the financial position encountered
by the Administration in 1920 and the years immediately following.
It had been relieved of the cost of mamtaining a military garrison
(even after 1910 the Imperia) German Exchequer had made an
annual contribution of !700,000 on this account). The personnel of
the civil administration was on a lower scale than that which had
led Gennan colonists themselves to complain of the excess of
bureaucratie govemment. The cost of constructing new railways, or
any loss on the working of existing lines, fell on the Union Govem
ment. But in the initial years of the Mandatory régimethe public
1 U.G. 30-1940, para. 339, pp. 74-75.
2 The Commission consisted of two judges of the Supreme Court of South Africa
and a well-known economist, who later became Secretary for Finance in South
Africa.
3 U.G. 26--1936, para. 125, p. 30.
4 Ibid., paras. 380-381p.74.
5 Ibid., para. 248, p. 54. COUNTER-MEMORIAL OF SOUTH AFRICA 421
revenues amounted only to an average of about f8oo,ooo, and
roughly 50 per cent. of this sum was accounted for by receipts from
the mining industries. (The instability of revenue derived from the
diamond industry was seen when the production of the Luderitz
field was reduced partly owing to the opening of the Lichtenburg
alluvial diamond field and partly to the discovery of the Alexander
Bay field in 1926.) Considerations relating to the political status of
the territory appear to have prevented recourse to loan funds for
capital expenditure on schemes of development, and the sums
available from current revenue were small for this purpose. Every
thing pointed to the need for a policy which would develop as rapidly
as possible the agricultural resources of the territory. This seemed
the more obvions because the railway system, which in German
times stopped short of Kalkfontein, had now been linked up with that
of the Union, thus opening the South African market to the stock
and dairy products of the colonist. l,n these circumstances, ît is
intelligible that policy should have been directed mainly to the
encouragement of European farming enterprise 1."
6. The presence in the Territory of a substantial European population
naturally raised the question of. their political rights, just as it raised
specific questions in some other fields, e.g., the provision of social services
forthat group, and of education for their children.
The European population of the Territory was, from the inception of
the Mandate, at a stage of development which justified the grant of a
measure of self-government to them. The major issue was the extent of
self-governing powers which could, or should, be granted, having regard,
inter alia, to the fact that South West Africa was a mandated territory.
General Smuts dealt with this matter in a letter to the Chairman of the
Permanent Mandates Commission, dated 16 t1fay 1923. He wrote,
inter alia:
"The majority of the White population in S.W.A. are Union
citîzens accustomed to our free system of self-government. For them
it would be impossible to apply any other form of government than
the free democratic régime to which they had been accustomed in
the Union of South Africa. But I fee1that to extend our fostitutions
to the Union population in the mandated territory to the exclusion
of the comparatively large German minority would be in every way
undesirable ... 2" .
A form of government, similar in principle to the South African
parliamentary system, was subsequently introduced for all Europeans
in the Territorv with the enactment of the South West Africa Constitution
Act (Act No. 42 of 1925), which came into force in 1926 3•This Act made
provision for the establishment of a Legislative Assembly, an Executive
Committee, and an Advisory CounciL
The composition and powers of these organs, and subsequent constitu
tional developments affecting them, are dealt with elsewhere in this
Counter-Memorial 4•For present purposes it is suffi.cient to note that
powers of legislation relating to Native affairs have at all times been
1 Lord Hailey, A Survey of Native A/jairs in South Wist Afric(1946), pp.53-54.
2 P.M.C., Min., III, p. 215.
3 Act No. 42 of 1925, inStatutes of the Union of South Africa I925pp. 734-800.
• Vide Book V, sec. E, Cha p. I, paraJ7-30, of this Counter-Memorial. SOUTH WEST AFRICA
422
excluded from the competence of the South West African Legislative
Assembly, such powers being retained by the South African Government.
Other constitutional developments, including the provision made by
1
Act No. 23 of 1949 for the representation of the European population
of the Territory in the South African Parliament, are also dealt with
elsewhere 2•
C. Considerations Affecting the Native Groups
7. In the case of the ind.igenous population groups considerations were
totally different from those applicable to the European population. The
question in the case of the Natives was primarily one of how they could
best be govemed, and to what extent and in which parts of the country
use could be made of their traditional systems.
The vast differences between the White group and the ind.igenous
groups._______(iifferernecating to civilization and culture, levels of develop
ment, 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. Such integration was not desired by any
of the groups concerned, and was in fact not a matter which called for,
or was given, any active consideration.
The traditional systems of government of the indigenous peoples of
the Territory are briefly described in Book III, Chapter II, above.
Those systems not only differed inter se, but were all vastly different
from that to which the European population was accustomed.
In regard to the administration of the affairs of the indigenous groups,
it was decided from the outset to make use of ind.igenous institutions
where such systems still existed, and to try, where such systems had
disintegrated as a result of events of the past, to re-establish so much
thereof as was practicable in the circumstances. Such an approach,
Respondent believed, would serve the best interests of the Native groups:
it involved the recognition of the separate identities of the groups, an
opportunity for preserving and fostering their tradition al community life,
and the possibility of their progressive development on a foundation of
their own cultures.
Final control over Native affairs was vested in the Governor-General
of South Africa, who was empowered by law 3 to delegate his authorit_y
"to such officer in the said Territory as he may designate to act under his
instructions". By his Proclamation No. r of r92r the Governor-General
delegated his powers under the said Act, including the power to legislate
by proclamation, to the Administrator of the Territory, as the agent
of the South African Government 4. By Administrator's Proclamation
No. r of 19:;n a Council was appointed to advise the Administrator,
int~r a~ia, in regard to "matters of general policy in relation to. t~e
legislat10n of the Territory apart from routine matters of admm1s
tration"; and one of the members of the Council was required to be a
person ·specialJy quafüied to ad vise on all matters concerning the Native
races of the Territory 5•When a new Advisory Council was established in
1 Statutes of the Union of South Africa I949, pp.178-r96.
Z Vide Book V, sec.E. Chap. I, paras. 17-30,of thisCounter-Mernorial.
3 Act No. 49 of 1919 in The Laws of South West Africa I9I5-I922, pp. 10-12.
• Proc. No. I of 1921 (S.A.)The Laws of South West Africa I9I5-r922, pp. 44-46.
'·5 Proc. No. r of 1921 (S.W.A.), The Laws of South West -Africa r9r5-I922, pp.
493-495. COUNTER-MEMORIAL OF SOUTH AFRICA
423
terms of Act No. 42 of 1925, referred to above, it was provided that one
of the members of the Council was to be an official who was to be selected
mainly for his knowledge of the reasonable wants and wishes of the
Native population of the Territory 1.
Subsequent legislation, i.e., from 1949 onwards, the effect of which
has been to establish more direct control by the South African Govem
ment over Native administration in the Territory, is dealt with elsewhere
in this Counter-l'llemorial.
8. In the terri tories outside the Police Zone, where traditional institu
tions had remained intact and were in operation at the time when the
Mandate came into being, a policy of employing such institutions for
purposes of the government of the peoples concemed admitted of fairly
easy application, and a system of so-cailed "indirect rule'' could be
established successfully.
In most cases the role of European officiais, who acted as links between
the Administration and the groups concerned, was largely confined to
one of assistance and guidance. The policy was, as far as practicable,
not to force upon any of the groups measures whic~ they were not
prepared to accept, but rather to make them appreciate the need to
change such practices and customs as were in conflict with civilized
notions or were no longer conducive to peaceful administration. This
genera! approach was referred to in the foHowing tenns in Respondent's
report to the Council of the League for 1924:
"The policy since our establishment has been to allow the natives
to rule themselves according to ordinary native law and no attempt
has been made to change this or in any way to interfere with native
custom, in accordance with which the whole population still live.
Through the influence of Government officiais, however, the different
tribal heads have more or less corne to look to the Native Affairs
Staff for advice and guidance in determining their affairs, especially
as far as the more complicated and inter-tribal or sectional questions
are concerned 2."
The following was stated in the same regard in Respondent's report
for 1937:
"The objective of the native affairs officers of the Administrabon
in South \Vest Africa has been as far as possible not to interfere with
native organization or customs as far as they were not in conflict with
good government and to allow the native peoples to develop gradu
ally; adopting European customs and methods in place of such of
their own customs and habits as they are brought to realise from
time to time are unsuitable to the changed conditions of life 3."
9. In the Police Zone conditions were vastly different from those
obtaining in the northern territories as far as community life and tribal
institutions were concerned. Such institutions had, to a large extent,
been destroyed. Members of tribes were scattered ail over the country, and
the first and major task facing the Administration was, to quote Lord
Hailey, "a problem of social reconstruction" 4•
1 Act. No. 42 of 1925, in Statutes of The Union of South Africa, r925, pp. 734-800.
2 U.G. 33-I925, para. 103, p. 28.
3 U.G. 25-1938, para. 303, p. 50.
• P.M.C., Min., XXXI, p. 135. SOUTH WEST AFRICA
424
Part of the process of reconstruction was the establishment of reserves
where the Native occupants would enjoy security of tenure, and where
they would have an opportunity of re-establishing, as far as possible,
their traditional social life and customs.
Respondent's annual report for 1925 stated the following in this rêgard:
"The natives, however, will in future have centres where they can
develop on their own lines, from which they can go freely in search
of work in European centres, and to which they can return to their
families. At the same time the foundation has becn laid for the
building of self-contained native communities developing on their
own lines, under the supervision of selected Native Affair of
ficiais . .1''
IO. The absence of traditional leaders, and the fact that traditional
systems of tribal govemment and all the normal restraints inherent
therein had been destroyed, made it necessary to provide for a special
form of control of the reserves.
After the establishment of the first reserves, regulations for their
control were issued under Government Notice No. 68 of 1924 2•In terms
of these regulations the general control of a reserve was vested in the
Magistrate of the district concerned, whilst the duties of exercising
actual day-to-day control and supervision were entrusted to a European
Superintendent. Provision was made for Native headmen to assist the
Superintendent in the exercise of his functions.
As a means of developing the reserves and of giving Native residents of
such areas an opportunity of participating in the management of their
own affairs, Reserve Boards of Native leaders, under the chairmanship
of the Magistrate or Superintendent, were established 3. These Boards
are consulted in regard to the administration of tribal trust funds, the
moneys of which are expended for the sole benefit of the Native com
munity concerned, and also assist Superintendents in the general adminis
tration of the reserves •
D. Early Stages of Economie Advancement of the Natives
1. LABOUR IN THE EUROPEAN EcoNOMY
rr. Wage-earning employment opportunities constituted an immediate
benefit to the Native population of the Police Zone, considering the
situation in which they found themselves at the time when the Mandat~
came into being. Save in a few cases they had, during the German regime,
lost the lands formerly occupied by them, and their right of owning live
stock had been severely restricted. The rate at which the Native reserves
could be developed, ruled out the possibility of any significant full-time
support from that sphere in the early stages--significant, that is, as com
pared with the much more attractive opportunities of regular wage
employment.
A-part from the benefit of wages, the absorption of the Natives in a
modern economy as regular workers had the advantage that it would
1 U.G. 26-r926, pp. 109-rrn.
2 G.N. No. 68 of 1924 (S.W.A.), The Laws of South West Africa I9z4, pp. 57-63.
3 Proc. No. 9 of r924 (S.\V.A.)The Laws of South West Africa I9z4, pp. 40-42.
4 Vide Book V, sec. E, Chap. I, paras. gr-93,of this Counter-1\lernorial. COUNTER-MEMORIAL OF SOUTH AFRICA
gradually transform their traditional approach to work and inculcate in
them new economic interests and attitudes.
Since Native labourers were largely illiterate and unaccustomed to
rcgular wage employment, the Administration, in an effort to secure
satisfactory labour relations, adopted what might be called a policy of·
"economic paternalism" in respect of their wagcs and conditions of
employment. Respondcnt accordingly introduced certain regulatory
measures, such as the Master and Servants Proclamation 1. In the case
of migrant labourers from beyond the Police Zone, who were employed
largely by mining enterprises, standardized terms and conditions of
employment were laid down.
Il. AGRICULTURE IN THE NATIVE RESERVES
12. The stage of development of the Native groups, their traditional
subsistence type of farming and the fact that the commercialization of
such farming requircs large capital investment and involves a time
consuming process of change in production techniques, inevitably meant
that development towards commercialized production in their case would
be a slow process 2•
In the Police Zone circumstances wcre particularly difficult. and
development could only be contemplated in stages. The Natives being
largely landless at the inccption of the Mandate, the first step was to
settle them on land, to create conditions for settled farming, to open up
supplies of water and to build up herds. Thereafter could follow a process
of improving the quality of stock by selective breeding or the introduction
of new strains, the improvement of farming methods generally, and,
finally, production of animais and produce for marketing and sale on a
competitive basis.
13. To finance development in the reserves, and to inculcate in the
Native at the same time a spirit of self-reliance, trust funds were
established for the varions reserves. These funds derive their revenue
directly from the inhabitants of reserves, Iargely by way of grazing fees
and various minor taxes. AU expenditure from such funds is for the
dfrect benefit of the reserves concerned and their inhabitants.
The following official statement deals generally with the purposes for
which trust funds were utilizecl in the early years:
"These funds, built up as they are almost cntirely from the fees
Native residents of the reserves pay in respect of the grazing of their
1ivestock upon the communal reserve lands have, in the case of most
reserves, proved more than adequate during reccnt years to meet
immediate requirements with regard to the conservation of water,
the opening up of new supplies, the construction of fencing, the
purchase ofstud or high-grade bulls, the construction of dairies, the
acquisition of cream-cans and, generally for ail services necessary to
enable the utmost use to be made of the available grazing and of the
produce of the lîvestock depastured thereon ... The time will no
doubt arrive-sooner in the case of some reserves than with others
when, basic development having been completed, trust funds will
1 Froc. No. 34 ofr920 (S.W.A.), The Laws of South West Africa r9r5-r922, PP•
336-366.
2 Vide Chap. IV, paras. 32-34, supra. SOUTH WEST AFRICA
be used for other bettennent services on behalf of the natives in
reserves 1.' '
Commercialized production in the Police Zone began in the latter half
.of the 1930s, largely in the form of production of dairy products for sale.
·Commercialization by way of livestock sales reached significant pro
portions only after the Second World War.
14- ln the northern territories, where the various Native groups
inhabited land which they had occupied for a long time, conditions were
naturally more settled than in the Police Zone; but there, too, since ail
economic activity had always been merely for subsistence purposes,
development could only corne in stages as certain basic requirements
could be met.
Water supplies had to be augmented, particularly in areas away from
the rivers, so as to ensure, inter alia, a better distribution of population.
Fanning methods and the quality of livestock had to be improved, the
latter largely by selective breeding. Commercialization by way of sale of
livestock has at ail times been hampered by animal diseases, the combat
ing of which is a never-ending task.
In these terri tories, too, the system of tribal funds was introduced, for
the same purposes as in the Police Zorie.
E. Policy regarding Land and Rights of Residence
15. Refcrence has been made above to the policy of setting aside re
serves for the sole use and occupation of Native groups 2•For the protec
tion of the groups concerned, the alienation of the land comprising such
reserves was prohibited "save under the authority of Parliament" 3•And
no Europeans, except missionaries and government officials, were allowed
entry into Native reserves, save on permission specially granted.
16. At the inception of the Mandate, some communities in the Police
Zone occupied certain restricted areas as a result of treaties or agreements
with the German Administration. Respondent recognized these areas
as reserves for the communities concerned and proclaimed additional
reserves for other communities and groups-mainly in pursuance of
recommendations by Commissions of Enquiry \ In due course the
northern areas which had not been under German control, i.e., the
Kaokoveld, Ovamboland and the Okavango, as well as the Eastern
Caprivi, were also proclaimed as reserves for the sole use and benefit of
their traditional inhabitants.
17. Private ownership of land was a co!lcept foreign to the indigenous
groups of the Territory, and ail land, whether considered the proper~y
of the Chief or of the tribe, was traditionally used on a communal bas1s.
Sorne of these traditional systems recognized the right of persons io
purchase, or to be allotted, the use of individual portions of land for
5
agTicultural purposes ;but indh·idual ownership of such allotments was
unknown, and rights of grazing were alwavs held in common.
In the circumstances Respondent made the land in the reserves avail-
1 U.G. 30-194<:>, para. 799, p. 138.
2 Vide para. 9,:;upra.
' Act No. 49 of 1919 (S.A.), in The Laws of South West Africa I9r5-I922, P· 12.
4 Vide Book VI, Chap. III, paras. 55 to 62,infra.
5 Vide Book Iîl, Chap. II, paras.19, 30 and 48. COUNTER-MEMORIAL OF SOUTH AFRICA 427
able for the joint use of tribes or groups of people, leaving it to tribal
leaders or, in certain cases, to Superintendents of reserves, to allot
portions thereof to individuals.
18. As has been pointed out, residence in reserves was limited to
Natives. Various practical considerations furthermore made it necessary
to impose certain regulatory measures in regard to residence of Natives in
such reserves. The need to maintain order and control, to protect the
rights of those for whom a particular reserve had been set aside, to
prevent overcrowding and to ensure the proper conservation of land and
grazing, obvionsly required certain protective measures and restraints.
An unfettered right on the part of individuals to reside in whatsoever
reserve they pleased, or to move from one reserve to another as often as
they wished, would not only have made efficient administration and
control an impossible task, but would have been to the ulbmate detriment
of the people themselves.
19. It was believed that the reservation of land for the sole use and
occupation of the Native groups had decided advantages for all con
cerned. It confirmed all the tribes in the northern terri tories in the pos
session of their traditional lands, and it provided a largely landless
population in the Police Zone with opportunities for reconstructing their
traditional social and economic life and leading a more settled existence
than that to which they had been reduced before the inception of the
Mandate.
The policy of creating separate areas for the Native people of the
Territory was not only a necessary or, indeed, inevitable consequence of
the factual situation as Respondent found it at the inception of the Man
date, but was also in accordance with Respondent's experience gained
over many years in governing a heterogeneous society in South Africa,
where Respondent was app1ying a po1icy which had as basis the belief
that each of the population groups was, as far as was practicable, entitled
to develop in its own sphere, where it could best advance on a foundation
and within the framework of its own social and political institutions.
20. In urban areas in the Police Zone provision was made for the
establishment of separate residential areas for Natives where they could
acquire "the lease of sites for the erection of houses or huts for their own
occupation" 1;and local authorities were empowered to provide housing
for individual Natives or Native families in such areas 2•Persons other
than Natives were prohibited from acquiring any rights to any site or
premises in the areas concerned 3•
The provision of separate residential areas for Europeans and Natives
was in accord with the existing pattern of social and residential separation
between those population groups, and was part of the general policy of
creating separate spheres of settlement and ownership of land between
the European and Native groups. .
The control of such Native residential areas, and the participation of
Natives in the administration thereof, are dealt with elsewhere in this
Counter-Memorial 4•
1 Pmc. No. 34 of 1924 (S.W.A.), inThe Laws of South West Africa r924, pp. 178,
190.
2 Ibid., sec. r(t)(b) and (c), p. 178.
3 Ibid., sec.5,p. 180.
• Vide Book V, sec. E, Chap. IH, of this Counter.Memorial. SOUTH WEST AFRICA
F. Development in Early Years up to the Second World War
21. In the unsettled conditions wlùch prevailed initially, it was essential
first of allto establish certain elementary protections and to lay the
foundations of social and economic development.
As has been shown, measures were taken at an early stage to provide
the largely landlcss Native population of the Police Zone with homes in
areas specially reserved for them, and to supply those who sought em
ployment in urban areas with proper accommodation.
Various steps were taken to bring about more settled conditions of
life for the Natives, to discotirage their movement to areas wherc there
was no work or accommodation for them and where overcrowding could
only be to the detriment of health and morals, and to inculcate in them
an appreciation of the need for, and value of, regular work, whilst en
deavouring, at the same time, to ensure proper labour relations by
protecting them against exploitation. Itis against this background that
the Territory's vagrancy laws, pass laws, influx control measures and
master and servant laws, which are dealt with elsewhere in this Counter-
1\.Iemorial,must be considered.
22. The field of Native education 1 affords a good example of how
various circumstances contributed to retard development in the early
stage (till the Second World \Var), but how steady progress was never
tqeless made. AH education was initially, as in man y parts of Africa 2in
the bands of varions mission societies. There were few Native tcachers
with any training and, at the beginning, no uniform courses of study.
Efforts at persuading Native students to be trained as teachers gradually
bore fruit, school enrolments gradually increased, and the standards of
education were gradually raised.
23. Development in the Territory was necessarily dependent on the
rate of its economic advanccment, and on the availability of capital for
expenditure. Initially, as during the German regime, mining constitu.ted
the major single source of public revenue, but, due largely to poor pnces
obtained for diamonds, this position changed in 1925-1926, when Customs
and Excise became the largest source of such revenue. The latter increased
its contribution from 8 per cent. in 1920-1921 to almost 40 per cent: in
1929-1930, due to increased imports of consumer, intermediary and capital
goods to meet the needs of the growing European population.
24. The farming industry, developed largely as a result of the Adminis
tration's European settlement scheme, proved to be a considerable
stabilizing force inthe difficult circumstances which arose in the world
wide economic depression of the 1930s. Practically the whole rnining
industry then came to a standstill, and in 1934 and 1935 its contribut~on
to the total income of the Territory was virtually nil. The farmmg
industry also suffered severely as a result of drought conditions, which
lasted till the end of 1933, an outbreak of foot-and-mouth disease, and
poor prices on the South African livestock markets. Nevertheless, the
level of incarne originating in fanning recovered to its high level of
R3,roo,ooo (fr,550,000) in 1929 by 1934.1935, whereas the high income
contribution by mining in 1929, viz., R5,300,ooo ({z,650,000} was never
1 Vide Book VII, Chap. V, of this C-Ounter-Memorial.
2Ibid., para. 37. COUNTER-MEMORIAL OF SOUTH AFRICA 429
equalled during the I93os, the highest figure reached being R3,700,ooo
(fI,850,000) in 1938.
Steady advancement in agriculture was also made in Native reserves
during the period up to the Second World War. Substantial increases
in the number of livestock, and the improvement of their quality, were
due largely to the application of Reserve Funds, to which reference was
made above 1•
• Vide para.13, suP,,a. CHAPTER VI
RESPONDENT'SPOLICIES:COMPARISONWITH
OTHER AFRICANTERRITORIES
A. Up to the Second World War
L The practices and policies evolved by Respondent, and described
in broad outline in Chapter V above, can in their application to the
indigenous population groups of South West Africa be characterized as
tutelage or guardianship appropriate to relatively early stages of the
development of the wards.
The European or White population group occupied an intermediate
position in the above respect. In part this group was one of the wards,
the Mandate having committed "the inhabitants of the terri tory'',
without exception, to Respondent's charge 1.In part, however, due to a
greater ability "to stand by themselves" , the members of this group
could assist the Mandatory, subject to its control, in its guardianship
and civilizing mission in respect of the indigenous peoples.
ln keeping with the basic situation, the White population group could
be allowed a measure of self-government and of participation in processes
of central government-subject, however, to arrangements which left
the effective administration and control of Native affairs and interests
with Respondent. Central government in this latter respect was essentially
the Mandatory's task, as in the case of all B and C Mandates 3•lndeed,
the inability of the peoples concerned to perform this fonction themselves
was the reason for their coming under B and C Mandates-in contrast
with A Mandates, which limited the Mandatories' fonctions ta "adminis
trative advice and assistance"~. Through processes of indirect rule,
where appropriate and practicable, indigenous groups were allowed
a considerable measure of self-government of a traditional and localized
nature: but their non-participation in the processes of central government
was, inter alia, completely in keeping with the early stages of their
development under tutelage.
2. In the respect above-stated, the practices and policies applied by
Respondent in South West Africa were fundamentally-as distinct from
their detailed aspects-in close accord with systems and tendencies
operative throughout Africa south of the Sahara 5. This remained the
situation until about the time of the Second World War, and to some
extent even for a number of years thereafter.
Quite apart from other cases of Mandatc-viz., Tanganyika (British),
Ruanda-Urundi (Belgian), the French Cameroons, the British Cameroons,
1 Art. 2 of the Mandate for South \Vest Africa.
2 Art. 22 (r) of the Covenant.
3 Art. 22 (5) and (6) of the Covenant.
~ Art. 22 (4) of the Covenant.
5 I.e., exclu ding frorn considerationas was done in Lord Hailey's An African
Survey (1938) and (1957), the northemmost territories,with which cornparisons
would be cornplicated by reason of Mediterranean littoral influences. COUNTER-MEMORIAL OF SOUTH AFRICA 431
French Togoland and British Togoland-where the same basic situation
in regard to guardianship applied by express provision, colonial powers
regarded and described their fonctions vis-à-vis indigenous population
groups as resting upon moral concepts of the same or a closely similar
nature. Thus "trusteeship" was a term favoured in this regard in British
colonial policy 1, and "paternalism" has been used to describe the
2
general nature of relevant French policy as well as the officially recog
nized principle on which Belgium's traditional policy was based 3•
Portuguese traditional methods have also been described as approximating
to what Lord Lugard ca1led "dual !I]andate" 4. In the Union of South
Africa and in Southern Rhodesia political leaders used the terms
"guardianship" and "trustecship", with or without the adjective
"Christian", to describe the relahonship between the White population
and the Native groups 5•
3. In Annex A to this Book a brief, factual account is given of
relevant constitutional and attendant arrangements in each of the African
territories south of the Sahara (other than South West Africa and the
Union of South Africa) up to the outbreak of the Second World War.
From the facts thercin set out certain significant features will be readily
apparent, as dealt with in the next succeeding paragraphs.
4. As can largely be observed from Annex A itself, it was generally,
almost universally, accepted as natural for the indigenous African peoples
to have absolutely or virtually no participation or even representation in
the legislative and executive processes of the central government oftheir
respective terri tories-as distinct from traditional or tribal institutions of
a localized nature. Leaving out of account the independent territories
of Abyssinia and Liberia-where the systems of central government
could perhaps best be described as an authoritarian monarchy and an
oligarchy respectively 6-the fW1ctions of central government were
performed, in most cases exclusively and in the others almost exclusively,
by representatives of European colonial or mandatory Powers and/or of
European or \Vhite African populations in the respective territories.
In accordance with the concepts of tutelage, guardianship, paternalism
and trusteeship mentioned above, there was frank acceptance of the
proposition that "... the White man must rule", an expression used by
Lord Milner in I903, when he was High Commissioner for South Africa 7.
5. Franchise amongst African Native populations was highly ex
ceptional.
{a) In the large majority of the Territories concerned such franchise
1 Vide, e.g., BaileyAn African Suroey (1956), pp. 246 and 193.
2 Meaning "in effoct, a special regime for the mass of Africans who were suhjects,
not citizens". Hodgkin, T., Nationalism in Colonial Africa (1956),p. 35.
3 Ibid., pp. 51-52.
• Caetano, M., Colonizing Traditions, Princip/es and 1\-fethods of the Portuguese
(r951), p. 43.
~ As to the Union of South Africa, vide, e.g., Pirow, O., James Barry Mimnik
Hertzog, p. 198; Krüger, D. \V., South AfricaParties and Policies r9ro-r960(1960),
p. 87 and Chap. VII, para. 13, infra; and as to Rhodesia, \Valker, E., A History of
Southern Africa (1957),p. 666.
& Vide Annex A, paras. 61 and 62, infra.
~Milner Pape~s. Vol. II, p. 467. 432 SOUTH WEST AFRICA
1
did not exist at all. In this category fell ail the M andated Territories
and also the following colonial terri tories:
2 3 5
British: Kenya , Uganda , Nyasaland \ British Somaliland ,
Gambia 6, Swaziland 7,Basutoland 8 and Bcchuanaland 9 •
Italian: Eritrea and Somaliland 10•
Belgian: The Belgian Congo a.
French: The provinces Niger and Mauritania of the Federation of
French West Africa 12.
13
Spanish: Spanish Guinea •
(b) In the minority of cases in which there was provision at all for a
franchise in respect of which Natives could qualify, the basis thereof
was such that, for a variety of reasons, the potential influence of
such Native franchise was extrèmely limited, and in some instances
virtually nil. The following are the terri tories falling in this category:
British: The two Rhodesias and the three \Vest African terri tories,
Gold Coast, Nigeria and Sierra Leone.
French: The provinces Dahomey, Ivory Coast, French Sudan,
French Guinea and Senegal of the West African Feder·
ation, French Equatorial Africa and Madagascar.
Portuguese: Portuguese Guinea, Angola and Mozambique.
The actual arrangements in these terri tories are set out in Annex A
and need not be repeated here.
As will be noted, the rcasons for limited or negligible political influence
of the Native franchise included:
(i) qualifications which resulted in very few Natives in fa.et coming on
to the voters' roll 1-1;
(ii)limitation to election of a relatively small minority of the members
of the body concerned 15;
(iii) the body concerned having a consultative fonction only 16 or its
powers being otherwise limited 17, or
1 As to Tanganyika, vide Annex A, para. 22, infra; Ruanda-Urundi, para. 55;
British Cameroons, para. 35; British Togoland. para. 36; French Cameroons, v~ra.
47; French Togoland, para. 44.
2 Vide Annex A, para. 16, infra.
3 Ibid., para. 19.
• Ibid., para. 8.
5 Ibid., para. 25.
6 Ibid., para. 38.
1 Ibid., para. 10.
a Ibid., para. 1 1.
9 Ibid., para. 14.
10
Ibid., para. 53.
11 Ibid., para. 54.
12 Ibid., para. 41.
13 Ibid., para. 60.
H Vide, c.g., Southern Rhodesia (Annex A, paras. 2 and 4); Northern Rhodesia
(para. 6); French \Vest Africa other than Senegal (para. 43); French Equatorial
Africa (para. 45); Portuguese Territories {Annex A, paras. 57 and 58, read with
Annex B, para. 76).
15 Vide, e.g., Gold Coast (Annex A, para. 27); Nigeria (para. 31); Sierra Leone
(para. 34); Senegal (para. 42, re deputy to French Chamber).
16 Vide, e.g., French West Africa other than Senegal (Annex A, para. 40); French
Equatorial Africa (para. 46); the Portuguese Territories {para. 58).
17 Vide Senegal (Annex A, para. 42, re General C-Ouncil and C-Olonial C-Ouncil). COUNTER-MEMORIAL OF SOUTH AFRICA .433
(iv) a combination of these 1•
6. Actual participation by Africans in the central legislative and execu
tive organs of the terri tories concerned, was also highly exceptional. This
resulted partly from the franchise situation inclicated above, and partly
from policies adopted by the Powers in regard to nominations. Here
again the facts are given in Annex A, and the following serves only to
emphasize certain features:
(a) There was no such participation by Nati'ves in any of the mandated
territories. Apart from South West Africa, Tanganyika was the only
mandated territory in Africa with Legislative and Executive
Councils of its own. These consisted entirely of officialand nominated
members. Although a practice arose of appointing 2 to 3 Inclian
members to a Legislature totalling 23, all the other members were
European 2•
In the other mandated territories central government was more or
less by decree of the Mandatory or its representative. Although the
Legislative Councils of Nigeria and the Gold Coast could legislate
for the southem parts of the British Carneroons and British Togo
land respectively, the mandated territories had no representation in
3
these Legislatures • Each of the two French mandated territories,
the Cameroons and Togo, was administered under a Commissioner.
Native opinion was consulted through advisory bodies, constituted
by nomination and election by electoral colleges 4.
(b) In ail the British territories, there was not a single one in whlch a
Native became a member of an Executive Council during the period
under. review. And the only British territories in which Natives
became members of a Legislative Counci1, were Gold Coast, Nigeria
and Sierra Leone. In each of these three cases there were nominated
as well as elected Nativemembers, togetherwithnominated European
members; but in each case the principlc of an official majority
(Europcan) was maintained during the whole period 5. ·
Of the other British colonial territories, Southern Rhodesia 6,
Northern Rhodesia 7, Nyasaland 8 and Gambia 9 had all-White
10
Legislative Councils, while the Legislative Councils of Kenya and
Uganda 11were preponderantly White, with some Inclian and Arab
representation (no Native). British Somaliland 12 , Basutoland 13,
Swaziland 14 and Bechuanaland 15,had no Legislative or Executive
Councils, but in the case of the last-mentioned two, there was
1 E.g., the French territories other than Senegal.
1 Vide Annex A, para. 24, infra.
3 Ibid.,paras. 35 and 36.
• Ibid.,paras. 44 and 47.
5 Ibid., paras. 27, 3I and 34.
6
Ibid.,para. 4.
1 Ibid., para. 6.
8 IMd., para. 8.
9 Ibid., para. 38.
10Ibid., para. r7.
11Ibid., para. rg.
12Ibid., para. 25.
13Ibid., para. n.
14 Ibid., para. 10.
15
Ibid., para. 14.434 SOUTH WEST AFRICA.
machinery for separate consultation of the White population and
the Natives in regard to thefr respective affairs and interests, and
in the case of Basutoland machinery for consultation of trad.itionally
organized Native opinion. ,
Apart from reliance placed upon officials to represent and watch
over Native interests--e.g., the Govemor of Southern Rhodesia 1
and the Governor, Chief Secretary for Native Ailairs in Tangan
yika -it was relatively common practice in British territories for
representation of Native interests on a goverrimental body to be
secured by the nomination of one or more unofficial European
members regarded as specially acquainted with those interests. For
example reference may be made to Northern Rhodesia 3, K~nya 4
5
and Nyasaland •
(c) In the Belgian Congo (as in the mandated territory of Ruanda
Urundi) there was no participation by the Native population in the
processes of central government. Rule was largely direct from
Brussels, with some delegation to the Governor-General, assisted
where necessary by advisory bodies 6•
(d) In essence the samesituationapplied in the Italian, Portuguese and
Spanish territories, Native participation or representation in central
7
government being again nil •
(e) The situation in the French territories will be largely apparent from
what has been said above in regard to franchise. The govemmental
powers of legislation and administration as such were in the main
excrcised from France and through Govemors-General, Govemors,
Lieutenant-Govemors and senior officials 8•
In ail territories other than Senegal 9 ,Native representation and
participation were confined to me~bership, nominated and elected,
of varions advisory bodies 10•
7. It will be evident, therefore, that all the colonial and mandatory
territories south of the Sahara were indeed being ruled by "the White
man", and that, with very limited exceptions 11,the Native populations
concerned did not participa te at ail in the European systems and methods
of central government and the political·processes associated therewith.
These systems, methods and processes wereindeed strange and unknown
to the Native populations, and greatly at variance with their own customs
and traditions. Moreover, the diversity of traditional systems cherished
and applied by different Native ethnie groups was by no means a pheno
menon confined to South West Africa, but on the contrary a characteristic
of Native life encountered in varying degrees throughout Africa. So, for
1 Annex A, para. 3.
2 Ibid.,para. 23.
3 Ibid.,para. 5.
• Ibid.,para. 17.
5 Ibid., para. 8.
6 Ibid., para. 54.
7
8 Ibid .paras. 51-53, 58 and 60.
Ibid.,paras. 40, 46, 47 and 49.
9 Ibid.,para. 42.
10 Ibid.,paras. 40, 45, 46 and 5c.
u I.e., those pertaining to certain vVest African territoriesand to the handful of
Natives on the voters' rol!s in the Rhodesias. COUNTER-MEMORIAL OF SOUTH AFRICA
435
example, the following description has been given of the situation in the
Congo area colonized by Belgium:
"When the Belgians penetrated into Central Africa they discovered
there an extraordinary multiplicity of peoples, organized according
to extrcmely varied political principles, practising very different
morals and customs, whose economic pursuits differed considerably
according to the geographic region, and presenting a remarkable
diversity of beliefs, languages and arts ...
The African pluralism is pushed to such an extreme that the
uninitiated often have an impression of it as lack of cohesion or even
anarchy.
The whole lot of these ethnie groups scattered throughout the
extent of the territories adrninistered by Belgium in Central Africa
have never in the past constituted a centralized govemment above
the tribe, the small tribe or a political federation. The country was
composcd of a mosaic of entities, of which the importance varicd
from the simple village of a few score individuals to kingdoms of
several million subjects such as the Sultanate of Zande and the
Luba Empire 1." (Translation from French.)
And Sir Patrick Renison, who was Governor of Kenya from 1959 to 1962,
recently wrote as follows about the Native peoples of that territory:
"... the peoples of Kenya are not of homogeneous stock. Besides the
Bantu, there are Nilotic, Hamitic and Nilo-Hamitic; the African
tribes of Kenya are as different in appearance, customs, Janguage
and way of life as Eskimos from Italians. They are at every stage of
civilization from the most primitive to the most sophisticated 2."
Under such circumstances administering Powers, in the course of their
experience, not unnaturally came to the conclusjon that political activity
on the part of Natives could, at any rate at early stages of their develop
ment, best be achicved within the known framework of the traditional
systems of the varions groups. And so there was barn a wide-spread
practice of utilizing, in varying degrees, traditional systems in the govern
ment of Native groups-a practice known in British colonial practice as
"indirect rule".
8. A leading protagonist and practical exponent of the policy of in
direct rule was Lord Lugard (later for many years a member of the Per
manent iWandates Commission), who applied and developed the policy
while he was High Commissioner of Nigeria at the beginning of the
ccntury, and elaborated the implications thereof in publications such as
Political Memoranda, I9r8, and The Dual Mandate in British Tropical
A/rica, r929. Other well-known protagonists have been Margery Pcrham,
C.E.E., lccturer and writer on colonial administration, Fellow in lmperial
Government, Nuffield College, Oxford, inter alia, in A Re-Statement of
l ndirect Rule 3 ,and also Sir Donald Cameron, Governor of Tanganyika
from 1925 to 1931 and thereafter of Nigeria. Lord Hailey wrote in 1938:
"Sir Donald Cameron's l\femorandum of 1934 reasserts in sub
stance the principles formulated in the Political Memorandain which
1 Brausch, G. E. J. B., "Pluralisme Ethnique et Culturelau Congo Belge", in
Ethnie and Cultiiral Pluralism in /nier-tropicalCommunities, publication by the
International fnstituteof Differing Civilization(1957), pp. 243 and 245.
2 Renison, Sir Patrick,"The Challenge in Kenya", in Optima, Mar. r963, p. 9.
3 Published in Africa, Vol. VII (1934), p. 32r. SOUTH WEST AFRICA
Lord Lugard embodied his views of native administration. If the
Memorandum of 1934 differs from the earlier M emoranda it is
mainly in the emphasis it lays on certain principles selected as
underlying the application of the system. It insists that, if the native
authorities are to become not only a part of the machinery of
govemment 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 govemment must therefore be that which according to tribal
tradition and usage has in the past regulated the affairs of each
unit of native society; it is equaUy 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 conceived
as a means of trying 'to graft our higher civilization upon the
soundly rooted native stock ... moulding it and establishing it
into lines consonant with modern ideas and higher standards' 1."
Earlier in the same work Lord Hailey observed:
"The system of indirect rule is regarded by its exponents as a
better starting-point for an evolution towards self-government
than any other yet devised by British administrations. Sir Donald
Cameron, when Governor of Tanganyika, expressly stated that in no
other way could the obligation, implied in the mandate, to encourage
such an evolution of peoples 'not yet able to stand by themselves',
be carried out. The political traditions of Great Britain involve the as
sumption that self-government implies representative parliamentary
institutions, and this is held also by the majority of educated
Africans. It is implicit in the philosophy of indirect rule, however,
that the nature of the political forms which may ultimately be
evolved should not be prematurely defined, and it is possible that a
development deliberately based on African institutions may lead to
some new type of self-governing organization 2."
9. The policy of indirect rule was practised in each of the three British
mandated territories, Tanganyika 3, British Cameroons 4, and British
Togoland 5•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 6, French Cameroons and French Togoland 7•
Similarly the policy found application, under its name or by way of
its underlying principles, in a large number of other territories 8•
10. In pursuance of. or in addition to, the policy and principles of in
direct rule, differentiation as between members of various population
groups was practised in a spirit of guardianship, trusteeship and pater-
1 Hailey, An African Survey (r938), p. 432.
2 Ibid., pp. 134-I35.
3 Vide para. 8, supra, and also Ha.iley, An African Survey (r938), pp. 434 ff.
• Ibid., PP· 433-434.
' Ibid., pp. 477-478.
6 Ibid., pp. 494-496.
7 Vide Annex A, paras. 44 and 47, infra.
8 As examples, reference may be made to: Northern Rhodesia (Annex A, para.
7), Uganda (para. 20), Tanganyika (para.·24), Gold Coast (para. 28), Gambia (para.
39), Kenya (Hailey, An Ajrican Survey (r957), pp. 446-45r), and Nigeria (ibid.pp.
453-47o). COUNTER-'.\IEMORIAL OF SOUTH AFRICA 437
nalism, also in regard to legal systems, land tenure, residential facilities,
aspects of economic policy, control of population movement, education,
and other aspects of government. In later parts of the Counter-Memorial,
dealing with specific complaints by Applicants, relevant comparisons
are made on such aspects of governmental policies and practices.
11. Throughout the period under review, the bulk of the Native
populations in the African territories concerned showed little or no sign
of desiring any material change in the constitutional arrangements and
governmental practices in operation.
It is notable that the first "Congress against Colonial Suppression and
Imperialism", held at Palais Egmont in Brussels from 10 to 15 February
I927, was attended by only eight delegates from the whole of Africa as
against 24 delegates from China and 27 from other Asian countries. This
Congress, with such paltry representation from Africa, formulated, inter
alia, a resolution on Africa which set the aims at independence of the
African nations, racial equality and termination of ail racial and class
distinctions 1•
Yet, when this political clarion-call sounded in 1927, the bulk of Africa
neither partook nor took note of the new vision of the future.
12. During the years 1930 to 1933 the fi.rst formulation of modern
African political îdeals was articulated more or Iess clandestinely in
Hamburg in the publication Negro-worker, by such leaders as George
Padmore, the friend, mentor and subsequent adviser on foreign affairs to
President Kwame Nkrumah and Premier Jomo Kenyatta, whilst the
African Continent as such stiH disp1ayed no recorded political interest
of the masses 2•
13. Another significant indication of the same nature is afforded by
events in Kenya over the years 1920 to 1931. A long struggle raged over
the question of franchise and representation on the Legislative and
Executive Counéils for Asiatics in addition to those planned and pro
vided for the White population 3.Yet it does not appear that, throughout
this controversy, the question of similar rights for African Natives as at
that stage was raised or seriously considered. ·
14- Margery Perham, C.E.E., to whom reference has been made
above , commented on the phenomenon under discussion as follows:
"... For many years after annexation, though there was much be
wildennent, revolts were very few, and there does not appear to have
been much sense of indignity at being ruled. It was not until a small
minority, through thcir attainment of the higher levels of Western
education, and above all through travel, came to understand
something of the world at large and of their own place in it that the
spell of acceptance began to be broken. Excited by the wine of
these new ideas, and smarting, perhaps, from some experiences of
the colour bar in Europe, and especially in Britain, the young African
would return after some years to his own country. He would see its
poverty and subj~ction with new eyes, and he was now ready to believe
and to preach the idea that only by self-government could Africans
1 Italiaander, R.,Schwarze Haut im Roten Grifj (1962), pp. 21-22, 27°31, 39-41.
2 Ibid., pp. 53, 54, 62 and 68.
J Hailey, An African Survey (1938),pp. 164,166. ·
• Vide para. 8, supra. ·438 SOUTH WEST AFRICA
escape from persona! humiliation and win equality of status in a
world of which they are at last becoming aware. This purpose had
its adherents much earlier in West than in East Africa. The writer,
in studying African affairs and visiting Africa in the ro years before
the second World War, could mark its rapid growth in the minds of
Gold Coast and Nigerian students in Britain, and in the towns of the
West Coast and the Sudan. But before 1939 the numbers of those
whose education had reached the stage of world consciousness was
still small, and the masses outside the few towns on or near the
coast seemed to be unaware that their status was, as the young Press
1
was beginning to declare, a humiliating slavery ."
15. In regard to all territories in which there existed a settled \Vhite
population of substantial numbers, there was general realization of a
special problem. Although variously expressed and described in different
instances, the problem in substance amounted to this: how progressive
participation by African Natives in the process of central government
could in future be provided for without exposing the \Vhitc population
to the prospect of political domination by numerically stronger but
generally less advanced population groups, with an outlook completely
different from its own.
On the other hand, although the problem was at times raised and to
some extent discussed, the prevailing sentiment appears to have been
that is was considerably beyond the scope of practical political con
sideration: the general expectation in this regard was apparently that
it would take a very long time before African Native populations would
become sufficient1y advanced-educationally, economically, socially,
technologically and in attendant respects-to take a full part in represen
tative, self-governing institutions upon the European model.
Illustration of the aforegoing is afforded particularly in the cases of
Kenya and Southern Rhodesia, as is very briefly indicated in the next
succeeding paragraphs.
16. Although consideration was given during the 1920s to the future
rotes to be played in Kenya by the White and indigenous groups re
spectively, and although it was the considered opinion of the British
Govemment as expressed in the well-known Devonshire \Vhite Paper
of 1923, "... that the interests of the African Natives must be para
mount'' 2, inasmuch as "primarily Kenya is an African territory" 2,the
Passfield \Vhite Paper of 1938 rendered clear that there was at that stage
no contemplation of the grant of political rights to such Africans other
than-
"... the adaptation of native institutions to the purposes of local
self-government, with the possibility that native and settled areas
3
might eventually be placed under separate administration ".
17. As indicated above 4 and in Annex A, infra 5,Natives were prior to
the Second World War excluded from the franchise and had no direct
1 Perham, M., "The Psychology of African X ationalism",in Optima, Mar. 1960,
pp. 28-29.
2Hailey, An African Suroey (1938), p.r35.
3Ibid., pp. r36-r37.
• Vide paras. 5 (a) and 6 (b) supra.
1 Vide Annex A, paras. 16 and 17. COUNTER-MEMORIAL OF SOUTH AFRICA
439
participation in central govemment. The Nativc population was evidently
not considercd sufficiently advanced for participation in such institutions,
and the British Govemment considered itself as exercising a trust on
their behalf, as a result of which it should for the time being retain
control over Kenya under the Crown Colony system 1•
18. An expression of the attitude prevailing at the time, containcd in
a report of a Commission under the chairmanship of Sir E. Hilton Young,
is summarizcd as follows by Hailey 2:
"They [the Commission] insisted ... that until the Native popu
lation was able to take part in a representativesystem the imperial
govemment must retain, as their trustee, 'a right to intervene in ail
the business of government'; further, they held that the diflerences
of outlook between African and European which must persist, to
whatever stage of development the African community may
attain, would make it necessary for the imperial government perma
nently to retain the function of an arbiter betweenthe two communities."
(Italics added.)
19. In Southern Rhodesia, as has been noted, the franchise was open
to ail British subjects,but as a result of the property and income qualifica
tions only a handful of Natives qualified as voters. Lord Hailey wrote in
1938:
"The constitution of 1923estab]isheda1egislativeassembly, which
at present consists of thirty members, and provided for the creation
of a second chamber when the assembly should have passed a law
to this effect. The Buxton Commission of 1:921,on whosc recommen
dations the constitution was based, held that the numbers of the
European population from whom legislators could be drawn were
at that time too small towarrant the immediate establishment of an
upper house. The duration of the assembly is five years. The franchise
is open to all British subjects, male and female, including Natives,
subject to a propcrty qualification of [150, and an income qualifi
cation of {,100. The European population represented numbers
some 55,000. The admission of Natives to the franchise was consistent
with the spirit of the claim of Rhodes for 'equal rights for all civilized
men'; but itîs not in keepingwith thepolicyof separatedeve1opment
for the African and European populations which is now the accepted
principle in the territory. The possibility of introducing some
alternative system was discussed in the legislative assembly at
every session from I93I to 1933. In the latter year the Prime
Minister (Mr. Moffat) stated that he had found the Dominions
Office sympathetic to 'the arguments in favour of protecting the
European people of this country from a majority of natives getting
on the roll'3."
20. The British Government did not commit itself to any period of
time which would be necessary for the Natives of Kenya or Rhodesia to
reach a stage of development where they could participate in the central
govemmental sphere •. The Devonshire White Paper of 1923 stated that
1 Hailey, An African Survey (1938)pp. 165-167.
z Ibid., p168.
3 Ibid., p159.
• Ibid., pp250-253. SOUTH WEST AFRICA
in view of the need to safeguard Native interests, the grant of responsible
government to Kenya was "out of the question within any period of time
which need now be taken into consideration'' 1.
B. Developments during and after the Second World War
zr. In 1938 Lord Hailey wrote:
"It is not in the British tradition to explore far-reaching constitu
tional issues until the force of circumstances makcs it essential to do
so; and it is not reasonable to expect that any government would
now enter on an explicit commitment regarding the future status of
the African colonies. But there is one reason at least why some
further consideration should be given to the question whether a
resporisible government based on representative institutions is to be
held to be the most suitable constitution for the African colonies. It is
increasingly clear that Africans must before long be given a material
addition to their very limited representation in the legislative
councils. There is not in the African Crown Colonies any body
similar to the newly constituted Native Council in the Union, which,
though it may have only a consultative status, can nevertheless
claim to be widely representative. The French administrations have
on the whole been more liberal in their provision of advisory bodies
than the British. If, however, native representation in the legislative
councils is progressive/y increased, this will stimulate a !tope, if it
does not convey a promise, that parliamentary institutions will be
allowed to pursue their normal evolution in the African colonies; all
experience shows the ditficulty of calling a halt when political represen
tation has once become a serious malter of interest 2." (Italics added.)
The italicized words in due course turned out to be prophetic, as will
appear.
22. Margery Perham, after commenting as above indicated on the
apathy shown up to 1939 by the masses of the African population, even
in the west coast territories, on the question of participation in central
government and advancement towards independence 3, proceeded as
follows:
"But the next ro war and post-war years saw a concentration of
events and influences that spread the consciousness of 'colonialis~'
as an evil, and raised hopes, especially along the West Coast and m
the Sudan, that its super-session in Asia would be followed soon in
Africa •."
During the years succeeding those referred to by Miss Perham, the wave
of anti-colonial feeling in Africa gathered momentum. The demand for
an ever-increasing share in the governments of their countries found
growing support among the politically conscious Africans, and was
strongly influenced by events in other parts of the world, particularly
Asia. The results of this awakening African nationalism or anti-colonialism
fonn a part of contemporary history and it is accordingly not necessary-
l Hailey, An African Suroey (r938), p. 25r.
2 Ibid.,pp. 252-253.
3 Vide para. 14, supra.
• Perham, op. cit.p. 29. COUNTER-MEMORIAL OF SOUTH AFRICA
to give a full account thereof in this Counter-Memorial. Itwas reflected,
inter alia, in the constitutional development of the various territories in
Africa south of the Sahara, which is summarized in Anncx B to this
Book. There are however certain aspects of the anti-colonial movement
which are of relevance for present purposes, and which will consequently
be dealt with in the succeeding paragraphs.
23. As will be seen from Annex B, the development of participation by
African Natives in the central government of African territories continued
to be a gradual process up to approximately the middle of the 1950s,
after which it moved at an ever-accelerating pace. This reflected not
only the results of a strengthened demand for independence on the part
of the indigenous populations of the territories concerned, but also the
effects of increasing pressure in international affairs, particularly by the
newly independent States of Africa and Asia.
24- The effects of these political_dcmands and pressure may be seen
by comparing the actual situation today with views expressed previously
regarding the period within which dependent territories could be cxpected
to develop to self-government or independence. In this regard it will be
recalled that before the Second \Vorld War, and even for a number of
years thereafter, it was general!y acccpted that most of these territories
would not be ripe for independence for a very long time, if ever.
In a work written in 1962, Prof. W. E. Abraham, Associate Professor
of Philosophy at the University of Ghana, said- ·
"The reasons why Africa has suddenly becomc independent and
so finds herself loaded with problems for which she has not cven
adumbrated solutions are evidently not rooted in the colonial policies
of the metropolitan powers, for even with the eight points of the
Atlantic Charter which Britain admitted to apply to Africa., specu
lation about the coming of political independence was in terms of
sixty to one hundred years. Likewise in an article in Ti'me and Tiâe
for February, 10th 1940, on 'The Future of the Colonies', there
appeared a prophetic deposition, somewhat anticipating the Atlantic
Charter, in which the author, Dr. \V. B. :M.umford, broached a
sixty-year plan. And even the American Committee on Africa, the
\Var and Peace Aims, sitting in 1942, hardly expectcd that the
generation of Kwame Nkruma, Ako Adjei, Ross Lohr, Ibanga Udo
Akpabio-men from Ghana., Sierra Leone, and Nigeria whom it had
asked to submit memoranda-would claim and obtain independence
for Africa 1."
Even in 1952, Mr. Ingles the delegate of the Philippines in the Fourth
Committee of the United Nations, stated that-
"... it was reasonable to assume that Territories formerly under 'B'
Mandate should attain self-government or independence within
2
approximately a generation ". (Italics added.)
And in 1954 the visiting Mission of the Trusteeship Council suggested in
respect of Ruanda-Urundi "the formulation of a programme leading to
the achievement of self-government in. 20 to 25 years" 3•The Mission
1 Abraham, W. E., The Mind of Africa (1962), p. 163.
2 G.A ., O.R., Si:i:th Se:ss., Fourth Comm., 239th Meeting, 8 Jan. 1952, p. 258.
l T.C., O.R., Fifteenth Sess., SupNo. 2,p. r7.442 SOUTH WEST AFRICA
recorded that the Governor-General of the Belgian Congo had expressed
the contrary view that-
"in three or four generations, providing the inhabitants would have
the possibility of associating with other societies which could guide
them, the inhabitants of the Trust Territory could take over the
major task of governing the country 1". •
The Mission further recorded that its Chairman, Mr. Reid, was unable to
support its suggestion, and that he-
"does not consider that any adequate evidence is available to the
Mission or the Administering Authority on which to estimate that
self-government should be achieved in twenty, twenty-five or any
other number of years 2".
With the latter view the Representative of Belgium at the United Nations
later expressed complete agreement 3.
25. The effects of the intensification of the pressure on the Powers
administering colonial and trusteeship territories to speed up the grant of
self-government or independence to the territories concerned, may also
be seen in changed attitudes adopted by these Powers. Examples of this
may be found, inter alia, in debates in the Fourth Committee of the
United Nations in relation to so-called target dates for self-government
or independence of trusteeship territories. In 1949, for instance, the repre
sentative of the United Kingdom said:
"Any attempt to force the pace of advancement might in fact
have the undesirable result of placing the mass of the indigenous
population at the mercy of the better educated minority 4."
In 1957,
"... the United Kingdom policy was to advance step by step,
neither too quickly nor too slowly judging the exact nature of each
step in the light of experience of the last one ... S".
But by 1961, the attitude of the United Kingdom was expressed as
being~
"[that] in the advance towards self-government it was better to go
fast than slowly, and that the attainment of self-government and
independence accelerated the econornic advancement of the Terri
tories 6".
A similar change of policy occurred in the case of other States which
administered colonies or trusteeship territories. By the middle 1950s (an~
for some years aftenvards) these States were not prepared to commit
1 T.C., O.R., Fijteenlh Sess., Supp.No. 2, p. 16.
z ibid., p.18.
3 T.C., O.R., Fifteenth Sess.602nd Meeting, 18 Mar. 1955, p. 294. Asto a similar
suggestion and similar reactions reTanganyika, vide T.C., O.R., Fifteenth Sess.,
Supp. No. 3, pp. 67 and 68 and T.C., O.R., Fifteenth Sess.,584th Meeting, 24 Feb.
1955, p. 167.
• G.A., O.R., Fourth Sess., Fourlh Comm., 93rd Meeting, 6 Oct. 1949, p. 24.
5
6 G.A ., O.R., Twelf/h Sess., Fourlh Comm., 731st Meeting, 5 Dec. 1957, p. 439.
G.A ., O.R.Sixleen/h Sess., Fourth Comm., rr82nd Meeting, 24 Oct. 1961, p. 156. COUNTER-MEMORIAL OF SOUTH AFRICA
443
themselves to target dates at all 1. In fact, however, most of the terri tories
concemed attained self-government or independence before the end of
that decade, or within the first few years of the next. In the words of Sir
Patrick Renison, who was Governor of Kenya from 1959 to 1962:
"... the cry was 'faster, faster!' and there was no turning back;
India, Burma, Ceylon, West Africa, the Sudan, Malaya, Jamaica,
Trinidad-with the French and Belgians on the same bandwagon.
Now jt is East Afoca's turn, with Central Africa to follow. When it
was decided to match the ltalians and set an early date for Somali
land's indcpendence, it was clear that the remaining formative and
educative years in East Africa would be few in number. Never~
theless, the estimates of the time remaining then made by the
experts look ludicrous to-day 2."
26. The demand for accelerated political progress and the compliance
therewith by the Powers which controlled non-self-governing territories,
reflected a significant change in attitudes towards the state of advance
ment required for self-government or independence.
ln 193r, the Permanent Mandates Commission, in its report to the
Council of the League of Nations, stated:
"Whether a people which has hitherto been under tutelage bas
become fit to stand alone without the advice and assistance of a
mandatory is a question of fact not of principle. It can only be
settled by careful observation of the political, social and economic
development of each territory. This observation must be continued
over a sufficient period. for the conclusion to be drawn that the
spirit of civic responsibility and social conditions have so far
progressed as to enable the cssential machinery of a State to operate
and to ensure political liberty 3."
The same attitude was expressed even in the middle 1950s. Thus in
• Vide as regards the United Kingdom:
G.A., 0.R., Sixth Sess., Fourlh Comm., 239th Meeting, 8 Jan. 1952, pp. 259-260;
Eleventh Sess., Fourth Comm., 639th Meeting, 16 Feb. 1957, p. 441;
Twelfth Sess., 73rst Meeting, 5 Dec. 1957, pp. 438-439; Thirteenth
Sess., Fourth Comm., 795th Meeting, 12 Nov. 1958, p. 277;
France: G.A ., O.R., Sixth Sess., .Fourth Comm., 240th Meeting, 9 Jan. 1952,
p. 262; Eighth Sess., Fourth Comm., 389th Meeting, 3 Dec. 1953, p.
499;
Australia: G.A., O.R., Sixth Sess., Fourth Comm., 240th !1Ieeting, 9 Jan. 1952,
p. 262; Eighth Sess .. Fourth Comrn., 389th Meeting. 3 Dec. 1953,
p. 501; Eleventh Sess .• Fourth Comm., 628th Meeting, 8 Feb. 1957,
p. 392;
Belgium: G.A., O.R., Sixth Sess., Fourth Comm., 240th Meeting, 9 Jan. 1952,
p. 263; Tenlh Sess., Fourth Comm., 519th llleeting,23 .:'\ov. 1955,
p. z8o; 538th Meeting, 8 Dec. 1955, p. 401; Eleventh Sess., Fourth
Comm., 638th Meeting, 15 Feb. 1957, p. 435:
New Zealand: G.A ., O.R., Sixth Sess., Fourlh Comm., 240th Meeting, 9 Jan. 1952,
p. 265; Eighth Sess .• Fourth Comm., 390th Meeting, 3 Dec. 1953,
p. 507;
The United States of America: G.A ., O.R., Eighth Sess., Fourth Comm., 386th
Meeting. r Dec. 1953, p. 482; Thirleenth Stiss., Fourth Comni., 794th
Meeting, II Nov, 1958, p. 269.
z Renison, P., "The Challenge in Kenya", in Optima, Mar. 1963, p. 8.
3P.M.C., JI.fin., XX, Annex 16, pp. 228-229. SOUTH WEST AFRICA
444
1955, the representative of the United States of America, speaking of
the indigenous inhabitants of Tanganyilça, said in the Trusteeship
Council that:
"... the problem was not whether they would be capable of govern
ing themselves in twenty-five or thirty years, but whether they
would by that time be economically self-sufficient, which was es
sential to independence 1".
In the same year the representative of the United Kingdom said,
also in the Trustceship Council:
"The essential requirements for true self-government might be
reduced to two. The first was a fairly large body of persons with
education, knowledge and experience, prepared to assume re
sponsibility, who had and deserved the confidence of the majority
of the people. The second requirement was that the resources of the
country should be so deveioped that, through its own production
and trade, the country was self-sufficient and in a position to provide
adequate funds to maintain the Government, including ail public
services ."
A Belgian representative pointed out in 1956 that-
"Educational, social, health and economic developments were as
important in promoting a people's advancement towards self
govemment as the establishment of legislative councils and the
introduction of universal suffrage, and it would not further self
government to reduce the problems involved in its attainment to
formulae to be studied out of their social and economic context 3."
27. However, the view that economic, social and cultural progress
should precede political independence, came to be strongly contested
by many States. Thus, in 1960, the representative of Iraq stated that-
"... political advancement took precedence over economic and
social advancement, because the populations were impatiently
demanding independence ~·'.
In 1959 the Liberian delegate had said: "No amount of development
could compensate for Jack of freedom" -a 5 view which had also been
expressed as follows by a delegate of Ceylon: "... the so-called new
nations ... certainly believed that good government was no substitute
for self-government 6."
And in 1961 the Guinean representative stated:
"Irrespective of the state of development of a particular Territory,
its full independence based on territorial integrity was the sine qua
non for rapid progress in all fields 7."
The manner in which the progress referred to by the Guinean represen
tative was expected to be achieved in many cases, was well summarized
in 1960 by the delegate of Tunisia in the following words:
• T.C., O.R., Fi/teenth Sess., 592nd Meeting, 7 Mar. 1955, p. 223.
2 T.C., 0.R., Fifteenth Sess., 584th Meeting, 24 Feb. •955, p. T67.
3 T.C., O.R., Seventeenth Sess., 687th :\teeting. 16 Mar. 1956, p. 267.
• G.A., 0.R., Fifteenth Sess., Fourth Comm., rn13th Meeting, 17 Oct. 1960, p. 68.
5 G.A ., O.R., Fourteenth Sess., Fourth Comm., 982nd Meeting, 2 Dec. 19596oo.
6 G.A., O.R., Eleventh Sess., Fourth Comm., 607th Meeting22 Jan. 1957, p. 292.
1 G.A., O.R., Sixteenlh Sess., Fourth Comm., n86th Meeting, 26 Oct. 1961, p. 186. COUNTER~?tlEMORIAL OF SOUTH AFRICA
445
"If non-Self Governing Territories, upon becoming independent,
were economicaHy, socially and educationally under-developed,
they could be helped by the United Nations, which would, of course,
respect their sovereignty, but there could be no question of delaying
their independence 1."
28. The view expressed by the speakers cited in the previous paragraph,
found increasing support in world politics. In 1960 a resolution was
proposed in the United Nations General Assembly by 43 A(ro-Asian
States and adopted by 89 votes to o, with 9 abstentions (both Applicants,
and all African members who were present, voting with the majority,
the colonial powers and administering authorities general!y abstaining) z.
This resolution (which was called the "Declaration on the granting of
independence to colonial countries and peoples'') contained the following
paragraphs:
"1. The subjection of peoples to alien subjugation, domination and
exploitation constitutes a denial of fondamental human rights,
is contrary to· the Charter of the United Nations and is an
impediment to the promotion of world peace and co-operation.
2. All peoples have the right to se!f-determination; by virtue of
that right they freely determine their political status and freely
pursue their economic, social and cultural development.
3. Jnadequacy of political, economic, social or educational pre
paredness skould never serve as a pretext for delaying independence.
(Italics added.)
5. Jmmediate steps shall be taken, in Trust and Non-Sel/-Governing
Territories or ail other territories which have not yet attained
independence, to transfer ail powerstothe peoples of thoseterritories,
without any conditions or reservations, in accordance with their
freely expressed will a.nd desire, without any distinction as to
race, creed or colour, in order to enable them to enjoy complete
independence and freedom 3.''(Italics added.)
Paragraph 5 of this declaration was quoted in a resolution adopted
the next year. This resolution read:
"Th~ General Assembly ... Noting with regret that, with a few
exceptions, the provisions contained in the aforementioned paragraph
[i.e., the quoted paragraph 5] of the Declaration [on the granting
of independence to colonial countries and peoples] have not been
carried out,'.'
and
"Em_phasfzing that inadequacy of political, economic, social_or
educahonal preparedness should never serve as a pretext for delaymg
independence,
1. ,?Olem!'IYreiterates and reatfinns the objectives and princip1es
enshT?ned m the Declaration on the granting of independence to
colomal countries and peoples contained in its resolution 1514
(XV) of 14th December, 1960;
2. Calls upon States concerned to take action without further
1 G.A., O.R., Fifteenth Sess., Fourlh Comm1025th Meeting. 27 Oct. 196o, p. 147.
2 G.A ., O.R., Fifteenth Se947th Plenary Meeting, 14 Dec. 196o, pp. 1273-1274.
3 Resolution 1514 (XV} iti G.A., O.R., FifteenthSess., Supp. No. 16 (A/4684), p. 67.446 SOUTH WEST AFRlCA
delay with a view to the faithful application and implementation of
1
the Declaration ."
Again the independent States in Africa played a major role in the
proposai and adoption of this resolution.
lt will also be sccn from these resolutions that by 1960 the prevailing
atmosphere in the United :Kations was one requiring trusteeship terri
torjes to receive independence forthwith, irrespective of the level of
advanc{,ment of their populations.
29. The approach that dependent territories should receive politîcal
self-government or independence as a first priority-i.e., before they had
reached the stage of advancement and economic self-sufficiency which
had previously been regarded as a sine qua non for the proper functioning
of the machinery of government-was eventually accepted by the
colonial powers and administering authorities. Reference has been made
to the statement of a British representative in 196I that-
"in the advance towards self-government it was better to go fast
than slowly, and that the attainment of self-government and
independence accelerated the economic advancement of the terri
tories 2".
This general approach was given effect to by most of the colonial
powers, with the resultant creation towards the end of the r95os and in
the early 1960s of a number of new politically independent but economi
cally dependent States in Africa. Difficulties encountered by these States
in their attempts to provide peace, order and good government despite
the Jack of economic and political maturity in the majority of their
populations, will be considered below.
30. Reference has been made above to the increasing pressure exerted
by the newly independent African States to enforce the grant of self
government or independence to dependent territories and peoples in
Africa. The prcsent proceedings against Respondent are to be seen as
part of this political campaign designed to bring South West Africa
(and eventually the Republic of South Africa itself) into line with the new
governmental systems established in other parts of Africa, and to achieve
for the Territory majority rule by the Native population-as an over
riding objective to which all other aspects and implications are to be
subordina ted. This feature appears clearly from debates at, and resolutions
of, conferences of African States, which will be dealt with in the suc
ceeding paragraphs.
3r. InJuly r959 a conference was held at Sanniquellie, Liberia, between
the Presidents of Liberia and Guinea, and the Prime Minister of Ghana.
In a joint communique, the leaders of the said three States stated in
regard to South West Africa:
"We maintain that this Territory is in fact a Trust Territory of the
United Nations, and as such the United Nations cannot relinquish its
legal and moral responsibilities to the indigenous inhabitants who are
entitled to the same treatment given to other Trust Territories. Con
sequently, we will request the United Nations to give further
1 Re~olution 1654 (XVI), C.A., 0.R., Sixteenth Sess., Supp. No. 17 (A/5100), p. 65.
2 G.A ., O.R., Sixtee11thSess., Fourth Comm., n82nd Meeting, 24 Oct. 1961, p. 156,
vide also para. 96, supra. COUNTER-MEMORIAL OF SOUTH AFRICA. 447
consideration to this question, declare the Territory not a part of
South Africa and fix a date for the independence of the Trust
Territory of South West Africa 1." •
It is to be noted that the composite aims of trusteeship as set out in
the Charter, viz., to promote the advancement of the inhabitants of the
territories in a number of different respects, had, in the minds of the
authors of the communique, been reduced to the one single aim, namely
the speedy attainment of independence irrespective of other considera
tions.
32. The same attitude towards dependent territories, and particularly
South West Africa, permeated the proceedings of the Monrovia Con
ference of Foreign Mmisters of Independent African States held later in
the same year (1959)at whlch both Applicants were represented •
In his opening address, the President of Liberia said, inter alia:
"ln our relationships with non-self-governing territories, what is
most important to us is the independence of theseterritories. Any policy
which tends to hinder the attainment of this ajm is reproachful to
3
the Liberian point of view ." (Italics added.)
At this Conference, the following resolution was adopted:
"Resolution on the Question of South-West Africa
The Conference of lndependent African States,
Deeply concerned by the situation in the territory of South-West
Africa.
r. Urges the Government of the Union of South Africa to im
plement the Resolutions of the United Nations concerning the
territory of South-West Africa. .
2. :Maintains that this terri tory is in fact a Trust Territory of the
United Nations, and as such the United Nations cannot relinquish
its legal and moral rcsponsibilities to the indigenous inhabitants who
are entitled to the sam~ treatment given ta other Trust Territories.
3. Appeals to the United Nations to fix a date for the independence of
theterritory of South West Africa 4." (Italics added.)
33. The next year, when the Second Conference of Independent
African States met at Addis Ababa 5, the question of South West Africa
was again discussed. Mr. J. Rudolph Grimes, the Secretary of State for
Liberia, is quoted as saying:
"... my Government, as a former Member of the League of Nations
at the time of its dissolution, had already indicated its determination
on behalf of al! the African States, to pursue further action to get this
territory ptaced under the Trusteeship provisions of theCharter. We are
pleased ta know that in this we have the support and co-operation of
other African States. This matter will be discussed at this conference
and it is hoped that final decision for further action will be taken
before we adjourn 6." (Italics added.)
1Joint Communique in The First West African Summit Conference hetd at San-
niquellie, July z5-z9, z959, issued by the Liberian Information Service, p. 30.
2 4-8 Aug. 1959, vide Legum, C., Pan Africanism (1962), p. 165.
3Departmental information.
• Legum, C., Pan Ajricanism, p. 168.
5 15-24 June 1960.
6 I, p. 82 SOUTH WEST AFRICA
As indicated above, by 1960 trusteeship was considered a brief prelude
to: complete political independence.
The result of the discussion at the Conference was embodied' in a
resolution, which i-ead as follows:
"The Conference of Independent African States, meeting in
Addis Ababa, (a) Having considered the question of the Territory of
South-West Africa, (b) Recalling United Nations resolution 136r
(XIV) of November 17, 1959, which drew 'the attention of Member
States to the conclusions of the special report of the Committee on
South-\Vest Africa, covering the legal action open to Member States
to refer any dispute with the Union of South Africa concerning the
interpretation or the application of the Mandate for South-West
Africa to the International Court of Justice for adjudication, in
accordance with article 37 of the Statute of the Court.
I. Concludes that the international obligations of the Union of
South Africa concerning the Territory of South-West Africa should
be submitted to the International Court of Justice for adjudication;
2. Notes that the Governments of Ethiopia and of Liberia have
signified their intention to institute such a proceeding.
3. Decides that aSteering Committee of four AfricanStates, including
the delegations of Ethiopia and of Liberia, should be established to
determine the procedures and tactics incident to the conduct of the juridi
cal proceedings in this malter' 1." (Italics added.)
34. It will be apparent from the facts set out in the previous paragraphs,
that the Applicants in the present case are in substance only nominal
parties to the proceedings, the real parties being the independent African
States, and that the main purpose of this action is to secure political
independence for the Terri tory. Both these features are emphasized by a
resolution taken by the Summit Conference of independent African States
(which included the two Applicants) at its Meeting in Addis Ababa on
22 to 25 May 1963. This resolution, in so far as it is relevant, reads as
follows: ·
"Agenda item ii: Decolonization
The Summit Conference of Independent African States ...
Having considered all aspects of the questions of decolonization;
Unanimously convinced of the imperious and urgent necessity of
co-ordinating and intensifying their efforts to accelerate the un
conditional attainment of national independence by all African
territories still under foreign domination;
Reaffirming that it is the duty of all African Independent States to
support dependent peoples in Africa in their struggle for freedom and
independence;
N oting with deep concern that most of the remaining dependent
territories in Africa are dominated by foreign settlers;
Convinced that the colonial powers, by their forcible imposition of
the settlers to control the governments and administrations of those
territories,arethus establishing colonial bases in ·the heart of Africa;
Having agreed unanimously to concert and co-ordinate their
efforts and action in this field, and to this end have decided on the
following measures:
1 Legum, Pan Africanism (1962),p.151. COUXTER-MEMORIAL OF SOUTH AFRICA 449
I. Declares that the forcible imposition by the colonial powers of
the scttlers to control the governments and administrations of the
dependent terri tories is a flagrant violation of the inalienablc rights
of the lcgitimate inhabitants of the territories concerncd;
2. Invites the colonial powers to take the necessary measures for
the immediate application of the Declaration on the Granting of
Independence to Colonial Countries and Peoples; and insists that
their detennination to maintain colonies or semi-colonies in Africa
constitutes a menace to the peace of the continent;
5. Reafferms further, that the territory of South-West Africa is an
African territory under international mandate and that any attempt
by the Republic of South Africa to annex it would be regardcd as an
act of aggression; Rea(firms also its determination to render ail
necessarysupport to the second phase of the South-West Africa case
before the International Court of Justice; Reaffirms still fur
ther, the inalienable right of the people of South-West Africa to
1
self-determination and independence ."
As will be seen, the present proceedings are considered as part of a
concerted effort to advance the process of "decolonization" towards the
"unconditional attainment of national independence" of all African
terri tories.
35. It is not Respondent's concern to criticize adaptations which other
governing powers have made in their policies in the light of the rise of
nationalism on the part of African peoples and of the growing vehcmence
of the "anti-colonialism" campaign. There can be no question about the
soundness of the principle that guardianship and trusteeshi,P exercised
over peoples unable to stand by themselves, are inherently mtended to
be terminated upon attainment by the "wards" of a stage of maturity
which enables them to decidc upon their own future. If, upon reaching
such a stage, the wards strongly desire self-government and independence,
there can be no question about a moral right on their part to attain such
ideal, nor about the soundness of a policy of allowing them to do so
in both instances, however, subject to due consideration of adjustments
to be made, and of a balance to be struck, between competing or con
flicting claims of comparable moral potency on the part of various
peoples.
In some parts of Africa the adaptations to be made were not compli
cated to a material extent by this last-mentioned factor. As was said by
the South African Prime Minister, Dr. H. F. Verwoerd, in London in
April 1960:
"In certain parts of Africa where the white man also ruled alone
before, a solution is relatively easy ... I refer to the countries of
Africa which undoubtedly belong to the black man by settlement
and inheritance, although they were taken over, administered and
developed by different white nations2 It is right that their land should
now politically become their own ."
The complications regarding application of the principle in such
1 Official Text, Resolutions in Summit, C.I.A. S/Plen. 2/Re2,pp. 1-2.
2 Address to the South Africa Club, London, in Pact Paper 9I, Apr. 196!, p. 12.450 SOUTH WEST AFRICA
instances have been rather of the nature of timing, of co-ordinating differ
ent aspects of development projects, or compensating for lack of co
ordination, and the like. In other instances, however, the complications
have involved a more serious weighing and balancing of competing and
conflicting moral daims and rights of different population groups at
various stages of civilization and development, as will appear below.
36. What Respondent does wish to emphasize is that the decisions
which had to be made by the Powers concerned, were of a political nature,
and were not dictated by legal principles or engagements which fall to be
adjudicated upon by a court of law. Moreover, the nature of thedecisions
made, the forces that had an influence upon them, and their factual
implications and consequences in various African territories, afford a
very instructive background for comparing and evaluating the adaptation
of policies being applied and planned for future application by Respon
dent in South West Africa with a view to attainment of the ideals of the
Mandate in the altered present-day circumstances. It is with a view to
relevance in these respects that Respondent in the next succeeding
paragraphs gives brief consideration to some of the manifested tendencies
involved in the adaptation in other territories. .
37. Political boundaries in Africa were for the most part drawn in
Europe by statesmen with inadequate knowledge or appreciation of the
nature and importance of the ethnie composition or tribal affiliations of
the inhabitants. The rcsult is twofold. Firstly, most, if not all, of the
territories in Africa are inhabited by a variety of different and often
widely divergent population groups, and, secondly, many population
groups straddle the political boundaries between two or more territories.
Under colonial rule, anv disputes or enmities between the various groups
were controlled or suppressed by the colonial Powers. During the tran
sitional period leading to independence, such disputes or enmities were
often submerged beneath the surface of "nationalism", which frequently
did not take the positive form of a common allegiance to a nation con
sisting of allthe inhabitants of a territory, but rather the negative form
of "anti-colonialism", or a common opposition to the Power in political
control of the territory. On attainment of independence, the cohesive
force of such "nationalism" would tend to fall away, leaving loyalty to the
individual tribes or clans as the strongest political emotion felt by the
inhabitants of the newly independent State.
Thus it bas been said:
"The spirit of nationalism ~nd the struggle for independence
create in many of the new countries an illusory sense of national
unity. Once independence is achieved, however, the old ethnie,
linguistic, religious,or tribal loyalties tend to reassert themselves
with renewed strength: India had to be divided into two countries,
Burma has had to fight five separatist movements, Indonesia has
been tom by the divisive forcesof fanatical Muslimsand non-Javanese
nationalists, Ghana has had the opposition of the Ashanti chiefs,
and more casualties have resu!ted from intertribal fighting in the
Congo than from the attacks on Europeans 1."
38. The unfavourable implications of the situation sketched in the
1 Millikan and Blackmer, op. cit., p. 76. COUNTER-MEMORIAL OF SOUTH AFRICA 451
previous paragraph, are also referred to by Sir Patrick Renison, who
says:
"Kenya is not the first country approaching independence in
which, as soon as the coming transition of power was certain, all the
old tribal jealousies, animosities and fears, which the British had
controlled, came straight up to the surface 1."
In regard to the Congo (Brazzaville) Republic (the former French
Congo) Gwendolen M. Carter, Professor at Smith College in the United
States of America, said:
"What conclusions can one draw from the early experience of the
Congo Republic? lt suggests that territories without a defmed
nationalist movement are particularly susceptible to tribal divisions.
Moreover, in the absence of a substantial Westernized elite and of
widespread sentiments of nationalism, political organization almost
inevitably rests on tribal sentiment. As the French anthropologist
had pointed out to me in our conversation in Brazzaville, political
organization and the stimulus of elections may, in fact, revive old
and half forgotten tribal connections and make them again signifi
cant. As the tierce riots in Poto-Poto revealed, political tensions
with such a tribalized base may create divisions which were not
there before 2."
39. As is welI known, simiiar problems manifested themselves in the
former Belgian Congo. The history of the socession of Katanga and Kasai,
the disputes between various tribes within these break-away provinces
and in the rest of the country, received wide publicity at the time and
need only be mentioned here 3•
40. The probiem is also iIIustrated by the case of Ruanda-Urundi,
formerly a mandated territory and later a trust territory under the
administration of Belgium. The ethnie situation in the territory shortly
before itwas granted independence was described in the following terms
by the Belgian Representative in addressing the Fourth Committee of
the United Nations:
"A second problem, and one more likely to cause disturbances and
imbalance, was the result of the ethnie-social structure of the
population, which was stratified into the Batutsi, Bahutu and Batwa.
In some areas, there was real tension between the Hutu peasant
masses and the Tutsi pastoral and ruling dass. The growing self
awareness of the Bahutu was the direct result of increased education,
the spread of Christianity and the breaking up of the classes of the
feudal pastoral system, which no longer corresponded to the eco
nomic classes. The peasant masses were no longer satisfied with the
treatment which they sometimes received in their traditional
society. That problem, which at the present time was making party
rivalries particularly acute, was not insurmountable. Those tensions
· could be reduced only if ail concerned accepted the same principles
of fairness and justice 4."
1 Renison, op. cit.pp. 8-9.
2 Carter, G. M., Independence for Africa (1960), p. 94.
3 Vide Legum, C.. Africa:A Handbook to the Continent (1961), pp. 193-194 and
Millikan and Blackmer, op. cil.p. 76.
4 G.A ., O.R., Fourteenth Sess., Fourth Comm., 944th Meeting, 9 Nov. 1959, p. 334·452 SOUTH WEST AFRICA
41. A solution to the problem in Ruanda-Urundi was found by way of
territorial separation ofthe former provinces into the separate indepen
dent States Rwanda and Burundi. Speaking in the Fourth Committee of
the General Asscmbly of the United Nations, Mr. Ngendandumwe, the
Oeputy Prime Minister of Burundi, dealt as follows with the reasons
which moti vated such separation:
"After several wccks of discussion in Brussels, the representatives
of the two States had been unanimous in recognizing the need for
an economic union and had agreed to study the establishment of a
single system for the administration of monetary and customs
matters and controls. The main question to dccide was whether to
stop at cconomic union or to go further and seek political union.
As matters were, the peoples of Rwanda and Burundi had no desire
to share a common destiny or to send representatives to the same
assembly. lt was significant that the General Council established by
the Administering Authority had proved a failure and that the
persons who had agreed to serve on it had been regarded with
disfavour by the population. Recent events had further emphasized
the divergencies and even rivalries between the two States, which
had entirely different, if not incompatible, systems. It was therefore
furthcr nccessary to seek a solution other than a contrived union
which would break up as soon as independence was declared, just
as various other unions of that kind had broken up elsewhere.
Moreover, economic necessity was not enough to create politically
viable States. If that were so, Europe would have been united
long ago.
The only possible compromise for Rwanda and Burundi, therefore,
was an economic union of two genuinely independent States. Later
on, it might be possible to devise solutions that were better suited to
the circumstances and more practicable, but not before radical
changes of structure had been introduced in accordance with the
wishes of the two populations. Rivalry, accentuated by recent
political developments, was a factor that must be taken into account.
Any attempt at political union was bound to fail and might even
provedangerous, forit would complicate the problem unnecessarily
and would be likely to impede a future union. Accordingly the
represcntatives of the two States were seeking solutions that would
leave the future open L."
42. Similar problems arose in the British Cameroons. During the
mandate period, the mandated territory of the British Cameroons was
administered as a part of the adjoining Territory of Nigeria. This was
done, according to the British authorities, "in the interests of the natives
of the mandated territory", and had "resulted in the revival of historie
associations between tribes and states which formerly were severed by
the Anglo-German frontier" 2•
In 1946 the General Assembly of the United Nations approved a
Trusteeship Agreement for this Territory. By 1954 the northem section
of the Cameroons was closely integrated with the Northem Territories
1 G.A., O.R., Sixteenth Sess., Fourth Comm., J262nd Meeting,18 Jan. 1962,
p. 652.
2 Report by His Britannic 11-fajesty'sGovernment on the Administration under
Mandale of the British Cameroons for the Year r924, p. 5. COVNTER-MEMORIAL OF SOUTH AFRICA 453
of the Federation of Nigeria, whereas the Southern Cameroons was a
separate federal constituent 1•
Subsequent referendums showed the strength of tribal and ethnie
affiliations-the Northern Cameroons elected to join the Federation of
Nigeria, while the Southern Cameroons prefcrred a political association
with the Republic of Cameroun 2•
43. The history of British Togoland followed much the same course.
Under the British Mandate it was, on I April 1924, divided for adminis
trative purposes into two sections, one of which was adrninistered a.s a
part of the Northern Territories of the Gold Coast, and the other as a
part of the Eastern Province of the Gold Coast. The reason for this was
given as follows:
"This mcasure accords best with the geographical and cthno
graphical conditions as well as with administrative convenience, and
has resulted in unifying tribes which were previously divided 3."
In 1946, Togoland was placed under United Nations Trusteeship. The
United Nations Visiting Mission in 1955 gave consideration to the future
of Togoland, and in its report said, inter alia:
"As is equally true of geographic and climatic divisions throughout
this part of West Africa, ethnographie and linguistic boundary lines
run roughly east and west, with the result that tribal and cultural
associations tend to extend across the frontiers into ncighbouring
territories and the ethnie composition of the population is extremely
complex ~."
"... the Mission found that in the Northcrn Section of Togoland
under British administration, opinion was overwhelmingly in faveur
of integration of the Territory with the Gold Coast. In view of the
distinctive ethnie and linguistic characteristics of the population and
of general conditions in this area, the l\Iission felt that its future
should be dcterrnined, not by a majority of the total vote in the
Trust Tcrritory, but by a majority of votes within this area. In the
southcrn districts of Kpandu and Ho, the Mission found opinion well
dividcd hetween the supporters of integration and those who
advocatcd independence for a unifi.ed Togoland. In these districts,
moreover, the majority of the population is Ewe and the question
of Ewe unification has exerted considerable influence on the course
of events in this region in recent years 5."
In the rcsult, a plebiscite held in 1956 resulted in a majority in favour of
integration of the whole area with an autonomous Gold Coast. This was
effected when Ghana (previously the Gold Coast} became independent
in 1957 6•
1 Report by Her Majesty's Governmenl in the United Kingdom to the General
Assembly of the United Nations on the Cameroons under United Kingdom Admini
stration for lhe Year I954,pp. 12-13.
2 Vide Annex B, para. 47, infra.
3 Report of Hi"s Majesty's Government on the Administration under Mandate of
British Togo/and /or the Year I924, p.9-
5 T.C., O.R., Fi/th Special Sess., Supp.No. 2,p. 7.
Ibid.,p. 16.
6 Vide Annex B. para. 49.454 SOUTH WEST AFRICA
44. A particular manifestation of the lack of unity in many newly
independent African States, can be seen where a substantial part of the
population is of European origin. 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 community
and African Native populations. The tendency has always been towards
attempted domination of one over the other.
45. The tcndency referred to in the previous paragraph may be seen
in the break-up of the Central African Federation, where a serious
attempt was made to create a form of "partnership" between Black and
\Vhite. Its three constituent States are now, as regards two (Northern
Rhodesia and Nyasaland), politically dominated by the Native popu
lations, whereas the third ex-member, Southern Rhodesia, is White
controlled by virtue of a qualified franchise, but is under continua! and
severe pressure to afford political hegemony to the Native inhabitants
on the basis of "one man one vote" 1•
Kenya is another case in point. In regard toits political development,
Sir Patrick Renison mentions that by 1960 "the slender hopes of multi
racialism were dying ' •2.
46. Where political control has been handed to an African Native
majority, the tendency has been for any settled White population to
leave the country. Thus in regard to the former Belgian Congo, it has been
said: "Kivu was called the Congo's 'White Highlands' till political
violence drove out its 14,000 European settlers .. .3'' And, in regard to
Kenya:
"The Europeans who used to have so much say in the govemment
insisted on the standards to which they were accustomed in Western
Europe. The administration was run to those standards, as were-on
the European sicle-production and marketing, commerce, schools
and hospitals, research-and, indeed, houses, gardens, clubs, games,
sport, wild-life safaris and everything else that has made Kenya,
with its superb highland climate and great variety, one of the most
attractive countries in the world in which Europeans may live. The
independent African Kenya will have no chance of maintaining
these standards, yet, if it lets them fall too suddenly or too greatly, it
will lose even more of those [i.e., the Europeans] on whom the
economy and revenue depend 4."
At the time of the writing of this portion of the Counter-Memorial
Kenya has just become independent, and news reports abound of Euro,
pean inhabitants leaving the country.
These are not isolated examples-the tendency for Europeans to leave
newly independent States under Native domination, has also been
manifested to a greater or lesser extent in all other parts of Africa. ·
47. The reasons for the tendency described in the previous paragraph,
vary as between individualand individual,andas between State and State.
Apart from instances where disorder, chaos and bloodshed caused an exo.
dus of Europeans (of which the former Belgian Congo is an example), the
1 Vide Chap. VII, para.22,infra.
2Renison, op. cil.p.9.
3 Legurn, C.,Ajrica, A Handbook to tha Continent (r96r), p. 194.
4~enison, op. cit., p. g. COUNTER-MEMORIAL OF SOUTH AFRICA
455
reasons may largely be sought in the vast difference in outlook, attitude
and standards of development as between African Native populations in
general and European or White groups in general. These differences
have manifested themselves in varions ways, of which examples will be
given in the succeeding paragraphs. ·
48. Although all the newly independent States in Africa initially
possessed democratic constitutions, there has been a tendency throughout
the Continent to adopt one party systems of government. In this regard
Chief H. 0. Davies of Nigeria has said:
"The ordinary people do not understand party politics, except as
a call to war against the members of the rival parties ...
Broadly speaking, the African Parliamentarian does not under
stand the meaning or fonction of the Opposüion. He believes that
once a leader has been elected, he is in for good and everybody must
accept his leadership. He tends to regard the opposition member as.a
saboteur who should be hounded out of the political arena 1."
Consequently, in at least 15 of the independent States in Africa south
of the Sahara, there is at prcsent no parliam·entary opposition 2•This
situation has in some cases resulted from overwhelming public support
for one party, but has mainly been achieved by legislation, including, in
some instances, the proscription of opposition parties.
This attitude on the part of governing parties was referred to by an
American political scientist, who is·said to have defined African de
mocracy as "one man, one vote, once" 3.
49. The Africanization of the Public Service has been a prolific source
of dissatisfaction in many African States and territories. The newly inde
pendent territories in Africa have generally embarked on a more-or-less
ambitious programme of "Africanizing" their Public Service; that is,
replacing European or lndian personnel with Africans. The inevitable
effect of this process has been to reduce the standard of efficiency of the
service. Reference has been made to this aspect by Sir Patrick Renison,
in the passage quoted in paragraph 46, supra. In regard to Tanganyika,
Gwendolen l\L Carter says:
"In practice, it seems generally admitted that Africanization has
affected the efficiency of the Tanganyika civil service, though to
what extent remains a matter of debate 4."
And in the "Report of the Seminar on Urgent Administrative Problems
of African Governments", submitted to the Economie Commission for
Africa during its frfth session he1d in Leopoldville in February-March
1963, the following appears:
"... while there may be differences in timing and intensity, the basic
problems with which this paper dea!s are similar in kind and Afri
canisation has proceeded rapidly everywhere.
1 Chief Davies, H. O., "The New African Profile", in Foreign Afjafrs,Jan. 1962,
p. 297.
2 Ghana, Tanganyika, Chad, Guinea, Liberia, Congo Republic (Brazzaville),
Gabon, Central African Republic, Burundi. Dahomey. Ivory Coast, llfali, Upper
Volta, Niger, Senegal.
l Houghton, D. H .• "Africa through Arnerican Eyes", in Optima, Sep. 1963,
p. I I2.
• Carter, G. M. (ed.),African One-party States(1962), p. 463. SOUTH WEST AFRICA
The product of so rapid and extensive a staff turnover is, then, a
young, inexperienced and largely untrained Civil Service, struggling
to cope with an ever expanding range of governmental programmes
through instjtutjonal devices and patterns largely unsuited to the
situa tion 1."
Further references willbe made to the Africanization of Public Services
in the part of the Counter-Memorial dealing with Applicants' complaints
regardmg the general administration of South West Africa. At present,
Respondent merely wishes to emphasize that such a process necessarily
leads to a decline in the general standard of administration.
50. As a consequence of the Africanization of the Public Services, and
the evacuation of settled White communities, new States frequently run
into economic difficulties. Reference has been made to this problem in
Kenya 2•
-In an earlier passage out of the article by Sir Patrick Renison than the
one cited in paragraph 46, s11pra, it was stated:
"In a population of about eight million, there were, at the peak,
only about 65,000 Europeans and rather more than double that
number of Asians. But an extraordinarily large part of the economy
depends upon them, and if they find they cannot make a lifc of it in
an independent Kenya, not only will there be all the human problems
of exodus for people who have no other home, but it is difficult to see
how the African leaders willfind the revenue to prevent a catastrophic
drop in the whole standard of African living, not to speak of the
abandonment of ail their dreams and promises of accelerated
3
development and welfare ."
In the former Belgian Congo, the departure of Europeans a1soexercised
a strong adverse influence on the economic life of the country 4.
It will be apparent that the feature referred to in this paragraph
constitutes a vicious drcle-the economic depression caused by the
exodus of Europeans in tum results in a further White emigration.
1 U.N. Doc. E/CN. 14/180,Annex IV, pp. 121-122.
1 Vide para. 46, supra. l
3 Renison, op. cit., p9.f
• Vide Legum, C., Africa, A Hai1dbook to the Continenl (1961),pp. 199-200. CHAPTER VII
RESPONDENT'S POLICIES: POST-WAR ADJUSTMENTS
1. As has becn indicated in the aforegoing exposition, Respondent did
not set about its task of administering South West Africa with a set of
fixed and unalterable ideas, or with a policy based on an inflexible
political or economic philosophy. The policies and practices adoptcd and
applied have always been moulded with reference to circumstances as
they existed in the Territory, and were aimed at finding such mcthods of
achievingthe ideals of the Mandate as might best be suited to circurnstan
ces and conditions in the Territory. In forrning its considered views in
this regard, Respondent was frequently influcnced by experience gained
in South Africa itself in regard to comparable problerns and policies
aimed at their solution, and also by instructive indications afforded by
events, tendencies and policies in other parts of Africa and the world at
large. But any translation of such experience and indications into action
in South West Africa occurred solely on the basis of due adaptation to
the needs, intcrcsts and circumstances of that Terri tory and the principles
and objectives of the Mandate.
2. Events during and after the Second World \Var in the world at
large, and in other parts of Africain particular, as discussed above, have
had their repercussions also on the conditions and problernsin South West
Africa to which regard bas been and is to be had by Rcspondent in the
formation and application of its policies. And just as Colonial and Ad
ministrative Powcrs have throughout Africa found adaptations to be
necessary and desirable in regard to policies and the manner and tempo
oftheir application, so the need and desirability of adaptations in South
\Vest Africa have become apparent to Respondent. Fundamental
objectives, and tried and tested methods of approach, have required no
change. But adaptation has been found desirable particularly in regard
to clearer formulation of the methods whereby ideals may ultimately be
attained, and in regard to the pace at which further progress towards
such attainment is to be atternptccl.
3. There are sevcral factors which have paved the way for such adapta
tions in South West Africa. Though progress in various spheres bas bet:n
relatively slow, for reasons indicated earlier, certain aspects of progress
have brought the situation as a whole out of the primary and elementary
•stages of the early years of the Mandate to a phase in which both the
economy of the Territory and the receptivity of the indigenous peoples
render possibie a hastening of the pace of advancement.
Perhaps the most important single factor operating in this regard,
however, is that of awakened political consciousness on the part of an
increasing number of rnernbers of the Native groups of South W~st
Africa. It is no longer true, ait was in the pre-war days, that the Native
peoples of Africa show little or no interest in the processes of central
govemment of their respective territories, or that they appear to accept
as natural their rule by the White man as far as those processes are
concerned. Increasing numbers of Natives desire participation in SJ.!C?
processes; and experience in other parts of Africa has shown that partic1- SOUTH WEST AFRICA
pation on a minority basis, or as a junior partner, never satisfies national
istic demands for any length of time • On the contrary, such expedients
only seem to act as a spur for demands for more and more, faster and
faster, stopping only at complete political domination of the whole
terri tory by its African population on a basis of universal adult suffrage
or, as bas frequently happened, by a clique of Africans who manage to
secure dictatorial control through exploitation oftheawakenednational
istic sentiments of the masses.
These, then, are the altered factual circumstances under which Res
pondent is to continue to promote to the utmost the well-being and
progress of''the inhabitants", without exception, of the Terri tory.
4. From what bas been set out in the aforegoing, it will readily be
appreciated that the problem of finding suitable adaptation, in conso
nance with the ideals and objectives of the Mandate, has not been an
easy one. In making the statement cited above about a "relatively easy"
2
solution in some parts of Africa , the South African Prime Minister,
Dr. Verwoerd, added the following:
"Those who find it easy there and do not realize the great
difference between the two situations, are unfortunately tempted to
wish to transplant that solution to South Africa 3."
The Prime Minister was contrasting the solution for the particular
territories with a solution for South Africa itself-which, of course, is not
a matter in issue in this case. But in principle a similar contrast is validas
regards South West Africa, as will be apparent from the above exposition
of circumstances and conditions in the Territory, the differences and rela
tions between its population groups, and the historie development of
present situations.
If, without preconceived ideas about any policy, slogan, creed, dogma
or philosophy, asolution is sought for the specific problem of South vVest
Africa, what answers present themselves? Are the aims to be set at
self-determination for the peoples of the Territory as a first priority,
regardless of real ability on the part of some of them to "stand by them
selves under the strenuous conditions of the modem world"? 4 If so,
would that not involve abandonment of one of the basic premises and
objectives of the mandate system? Could self-detennination, in any
just and equitable sense, be obtained by the expedient of artificially
regarding the peoples of South West Africa as a unit, the rnajority of
which must determine the future of the whole Territory and all its in
habitants? Would that not in fact mean that "self-determination" by
some groups could involve a total negation of self-determination for
others? \Vhat rnoral justification could there be for the Ovambo people,
by virtue of their superiority of numbers, to be able to determine the '
future of the Nama, living in a part of the country which the Ovambo
had never occupied or attempted to occupy, and to which they had
never laid claim--or the future of the Caprivi peoples who, by a mere
accident of history, over which they could not exercise the slightest
control, had been artificially scvered from their kinsfolk in surrounding
1 Vide, e.g., para22,infra.
2 Vide Chap. VI, para. 35, supra.
3 Address to the South Africa Club, London, in Facl Paper 9r, Apr. r961,p. 12.
• Art. 22 (1) ofthe Covenant of the League of Nations. COUNTER-MEMORIAL OF SOUTH AFRICA 459
areas and made an appendage of a territory of which their area did not
even geographically form part? Must the past and present contributions
of the White population group in regard to economic and other develop
ment of the Territory, under circumstances where their presence for such
purposes was necessary and encouraged, count for nothing in a form of
"self-determination" which could flood their wishes and interests in a
sea of African nationalism? Must the sacred trust, the protection of which
will still be needed for a considerable time to corne by the most primitive
groups Iike the Bushmen, the Himba and the Tjimba, be abandoned and
such groups left to their fate in what would amount to an experiment
with, at best, an uncertain outcome?
Such questions can be multiplied, but for present purposcs the above
should suffice. They illustrate how extremely complicated the problem
is in the specific circumstances of South West Africa, and how utterly
inappropriate the type of solutions found suitable in respect of other
African territories.
5. ln seeking a just and practicable solution, Respondent considers
itselfbound in honour, if not in law, to observe the principles and
approach of the mandate system in terms of which it assumed a sacred
trust in respect of the "peoples" 1 of South \V-est Africa. As has been
observed above, the emphasis under that system fell very strongly, in
practice as well as in theory, on the advancement of peoples to a stage
where they could indeed "stand by themselves"-economically, edu- ·
cationally and socially as well as politically-as a pre-requisite to a
2
mature political act of self-determination •The General Assembly of the
United Nations, in December r946, relied heavily on the political aspect
of this approach in rejecting the proposal made at the time by Respon
dent in regard to possible incorporation of South West Africain the Union
of South Africa. It will be recalled that consultation of the Native groups
had resulted in an overwhelming majority in favour of incorporation 3.
and that the resolution adopted by the General Assembly contained the
following paragraph relative to this aspect:
"Considering that the African inhabitants of South West Africa
have not yet secured political autonomy or reached a stage of poli
tical development enabling them to express a considered opinion
which the Assembly could recognize on such an important question as
incorporation of tlieir territory 4•''
6. Moreover, Respondent is as mindful as any other State of the
objectives regarding underdeveloped peoples as set out in the Charter
of the United Nations-in contrast to interpretations and applications
Jater sought to be given to the Charter by some States for the purposes of
an emotional "anti-colonialism" campaign. Respondent bas already
drawn attention to certain aspects of the undermentioned provisions of
the Charter 5,and wonld again like to stress the following in regard to
tbem:
Article 73a, whereby members administering non-self-governing terri-
1 Art. 22 (1)of the Covenant of the League of Nations.
2 Vide Chap. VI, para. 26,supra,
3 Vide Book Il, Chap. II, para. 43, of this Counter-Memorial.
• I,p. 44.
' Vide Chap. II, para. 23,supra. SOUTH WEST AFRICA
tories undertake to ensure the political, economic, social and edu
cational advancement of the peoples concerned, their just treatment
and their protection against abuses, is qualified by the words ''... with
due respect for the culture of the peoples concerned". (Italics added.)
Article 73b, setting out the undertakings "to develop self-government, to
take due account of the political aspirations of the peoples, and toassist
them in the progressive êlevelopmentof their free political institutions",
qualifies all this by the words "... according to the partimlar circum
stances of each territory and its peoples and their varying stages of
advancement". (Italics added.} The concept "peoples" (plural) of
"each territory" (singular) is of special interest.
Article 76b, setting out some of the basic objectives of the trusteeship
system as being "to promote the political, economic, social and
educational advancement of the inhabitants of the trust territories and
their progressive development towards self-government or inde
pendence", proceeds to state the qualification "... as may be appra
priate ta the particular circumstances of each territary and its peoples and
the freely expressed wishes of the peoples concerned ... ". (Italics added.)
Again the expression "each terri tory and its peaples" is specially
notable.
7. Due application of the above principles and objectives to the
·problems posed by the circumstances of South West Africa, has led
Respondent to shape its policies in such a manner as to make provision,
as far as practicable, for each of the major ethnie groups to achieve an
increasing measure of self-government and to develop towards self
determination in a political and territorial entity of its own. Only thus, in
Respondent's view, and through reasonable subsequent co-operation
between the entities, especially in the economic sphere, canself-determi
nation, "the freely expressed wishes of the peoples concerncd" and
"developmcnt to the utmost" become meaningful realities "according
to the particular circumstances of [the] territory and its peoples and their
varying stages of advancement".
8. The po1icy (oraggregate of detailed aspects of practices and po1icies)
designed to promote the objectives set out in the previous paragraph,
can for convenience be called by the descriptive name of separate
development. This is the name also employed for a similar, though not
identical, policy approach to similar problems in the Republic of South
Africa itself regarding future relationships between a .multiplicity of
population groups. Alternative descriptive expressions that have been
employed are "Harmonious Multi-Community Development" 1. and
"Live and Let Live" 2.
Respondent, for reasons to be indicated, prefers not to use the name
"apartheid" employed by Applicants in their Memorials 3•"Apartheid"
is a coined word, the equivalent of which in English would be "separate-
1 Dr. Eiselen, \V, \V. M., "Harmonious l\Iulti-Community Development", in
Optima, Mar. 1959, p.1.Dr. Eiselen was at that time Secretarfor Bantu Adminis
trationand Development.
2 Address by the South African Prime Minister, Dr. H.FVerwoerd, in his address
to the South Africa Club, London, in Fact Paper 9r, Apr. 1961, p. 14.
3 1, pp. 108-109;para. 109, p. I38; para.154 (3), p. 15r;.para158, p. 153; and
para. 189, p. 161. COUNTER-MEMORIAL OF SOUTH AFRICA
ness", i.e., the statc of being separate or apart. By its protagonists in
South African politics, the word was used as a name for what may be
termed an earlier stage of evolution of the policy of separate developmcnt,
in order to distinguish that stage from a yct earlier one generally called
"segregation". Thus the late Dr. D. F. Malan, in 1944, as Leader of the
Opposition-four years before becoming Prime Minister of the Union
stated the following in the House of Assembly in regard to the approach
to race relationships which he was advocating:
"I am purposely not using the word 'scgregation' because that
1
implies a certain amount of detachment ... Separation (apartheid)
affords the opportunity [to] those who ... stand on their own feet ...
to improve themselves on the foundation of what is their [own] 2."
ln course of time, however, the word "apartheid" came to be vcry much
more abused and vilified by political opponcnts and critics, at home and
abroad, of post-1948 South African governments, than "segregation" had
ever been. \Vhat is important for present purposes, is the confusion that
has been engendercd through the use of the word in a variety of different
connotations. lt came to mean whatever particula.r facet of policy,
practice or action, real or imaginary, the critic in question might have
had in mind. Through factors of causation which are themselves a
subject of controversy in politics, and which need not now be considered,
"apartheid" came to be regarded widely as synonymous with or indicative
of some form or other of racial oppression-which, as indicated n.bove,
was the very opposite of what was sought to be conveyed thereby by
Dr. Ma1anwhen he first began to use the word. J t was also the very oppo
site of the objectives for which the policy undcr that name was in fact
conceived, as will be demonstrated.
In the light of the aforestated, it is significant that Applicants
themselves have considered it necessary to give their own definition of
what they seek to convey by the word "apartheid" 3. Respondent will
deal specifically with the accusations and charges involved in that
definition and in the elaboration thereof in Applicants' more dctailed
allegations. But in order to stay clear of the sphere of confusion and
controversy mentioned above, which is in any event not in issue in this
case, Respondent will in its own account as far as possible avoid the use of
the word "apartheid".
9. Respondent does not propose to attempt anything approaching a
full or detailed exposition or even sketch of the development, contents
and implications of policies relating to group relationships in South
Africa itself, as would be necessary if those policies themselves had been,
on some legal basis or other, a matter for judicial pronouncement. Never
the1ess, in view of a certain measure of inter-action between policies in
South Africa and South West Africa, of the nature and within the limits
that have been indicated above 4, and with a view to illustration, some
bri~f reference is necessary to certain specific aspects of policies in South
Afnca.
1 The Afrikaans ward used by Dr. Malan was afhokking, which connotes separa-
tion into "cages",i.e., into enclosed or sealed-off units.
2 U. of S.A., Parl. Deb., House of Assembly,Vol. 49 (1944), Col. 6695.
3 Vide l, Chap. V, para. 2, pp. 108-109, and Chap. V, para. 189, p. 16r.
• Vide para. r, supra, SOUTH WEST AFRICA
ro. Historically, as from about the seventeenth century, Europeans
and Native or Bantu groups converged in relatively small numbers on
what was then a nearly empty part of the African Continent-the part
which 1ater became the Union and eventually the Republic of South
Africa, togcther with the British Protectorates of Basutoland, Swaziland
and Bechuanaland. The Europeans came from the south and the Bantu
from the north, and on the whole the tendency was for cach to settle in
separate and distinct parts of the country, the various Bantu groups
inter se, with few exceptions, also keeping apart from one another. There
were clashes and frontier adjustments in border areas, but, as was
stated by Dr. Verwoerd in hls above-mentioned London address in 1960:
"The White man did not use his power to overrun and acquire
black man's country. In fact ... the White man deliberately
reserved it for him and endeavoured {mostly in vain) to train him
to make the best use of it, as he did with his own, and to such good
purpose that the black man came to him for employment, food and
the good things of life, and not for political conquests 1."
Ir. It was on the basis of this historical background that, after the
formation of Union, the policy generally known as segregation, and
referred to by General Smuts in his 1917 address in London 2,was sought
to be founded and promoted, with the expcctation, as General Smuts
said, that "it may take a hundred years to work out" 2•A fundarnentally
important step in this direction was the passing by Parliament of ~he
Natives Land Act, 1913 3in terms of which certain areas were set as1de
and scheduled as Native Reserves. The areas initially thus affected were
progressively addcd to in later stages, pursuant to recommendations by
Commissions of Enquiry ~ and eventually in terms of the Native Trust
and Land Act, 1936 5,mainly through purchases by mea.ns of public fonds
of land owned by Europeans. Forms of self-government in such Native
areas were provided for and encouraged, but subject to "The paramount
position of the European population vis-à-vis the native ... in a.spirit of
Christian guardianship" 6•
12. The stage of development to be known as "apartheid" was born
of the view hcld by leaders of Dr. Malan's National Party, during and
immediately after the Second World War, that the existing policy of
segregation had undue limitations as a means of reconciling the natural
development potential and national aspirations of the Bantu with t~e
equally natural desire of the White population group to preserve 1ts
identity and way of life. Horizons for the Ban tu were, in the earlier views
of the situation, considerably limited-a factor becoming of increased
importance with advancement in Bantu education and with accelerated
influx of Ban tu to European areas for purposes of employment in industry
and other phases of the white man's economy. So, e.g., under the
segregation policy, General Hertzog had indicated that in his view the
1Address to the South Africa Club, London, in Fact Paper 9r, Apr. 1960, p.IO,
2Vide Chap. IV, para. 36,supra.
3Act No. 27 of 1913 in Statutes of the Union of South Africa I9I3pp. 436-448.
~ Neame, L. E., White Man's Ajrica (1952), p. 38.
5Act No. rS of 1936 in Statutes of the Union of South Africa r936pp. 90-142.
• Basis of policy adoptein 19r5 by the National Party of General Hertzog, who
was to become Prime Minister from 1924 to 1939-vide Pirow, O.,James Barry
Munnik Hertzog,p. 198. COUNTER-MEMORIAL OF SOUTH AFR!CA
Native areas would "never become the independent or semi-independent
Native states which certain natives sometimes refer to" 1•In the economic
sphere Natives who had attained educational standards above the
average, were often frustrated in that the somewhat static economies in
the reserves offered no scope for them, whereas in the White man's
economy avenues were closed through reactions born of historical social
distinctions-e.g., unwillingness of Europeans to serve under a Native
superior, preference for Europeans in the more advanced spheres of
employment and in the utilization of professional or artisan services-as
well as by reason of understandable inability of such Natives to succeed
on their merits in open competition with Europeans. The National Party
leaders saw in this situation an unfair curb on the reasonable aspirations
of the Natives, and a threat of growing demands for increased participa
tion in political and governmental institutions on an integrated basis with
the White population, leading eventually to political and attendant
domination of the whole country by the Natives by reason of superiority
of numbers.
13. It is against the above background that the significance will be
apprecia.ted of the following extracts from a declaration issued by Dr.
Malan's National Party in 1947, i.e., shortly before the election which
brought that party into office in 1948:
"It [apartheid] is a policy which sets itself the task of preserving
and safeguarding the racial identity of the White population of the
country, of likewise preserving and safeguarding the identity of the
indigenous peoples as separate racial groups, with opportunities to
develop into self-governing national units; of fostering the inculcation
of national consciousness, self.esteem and mutual regard among the
varions races of the country.
The choice before us is one of these two divergent courses: either
that of integration, which would in the Ion~ run amount to national
suicide on the part of the Whites; or that of apartheid, which
professes to preserve the identity and safeguard the future of every
race, with complete scope for everyone to develop within its own sphere
while maintaining its distinctive national character, in such a way
that there will be no encroachment on the rights of others, and withoitt
a sense of being frustrated by the existence arid development of
others." (Ita!ics added.) ·
Further, under the heading "General Guiding Princip les",
"... the party undertakes to combat any policy, doctrine or attempt
calculated to undermine or endanger the continued existence of the
White race. Conversely, however, the party rejects any policy of
oppression or exploitation of the non·Whites by the Whites as incom
patible with the Christian character of our people and therefore un·
acceptable." (Italics addcd.)
"Within their own area.s the non-White communitîes will be
afforded full opportunity to develop, implying the establishment of
their own institutions and social services, which will enable pro·
gressive non·Whites to take an active part in the development of
their own peoples. The poricy of our country should envisage total
1 Die Burger,4 Dec. 1925,pp. 7 and 8. SOUTH WEST AFRICA
apartheid as the ultimate goal of a natural process of separate develop
ment 1." (Italics addcd.)
lt is of interest to note, also, that in 1948 General Smuts' United Party
declared that it was "not in favour of a policy of equality or assimilation",
but stood for "European leadership and authority and reaffi.rms the
principlc of Christian trusteeship towards the Native peoples as a perma
nent part of the population" 2•
14. In view of the two-fold aspect of the policy approach indicated in
the above extracts from the National Party declaration, viz., the preser
vation of the identity of the White population group, and the provision
of grcater scope, in separatc communities, for the development of the
non-White peoples, it will be readily undcrstood that in particular ex
positions by political leaders, and in particular legislative measures or
administrative action, the accent would sometimes fall to a greater extent
on the one aspect, and sometimes to a greater on the other. It must,
moreovcr, be borne in mind that the policy was one of transition from
general acceptance of the idea of White supremacy as an indefinite pro
jection into the future, to acceptance of the fact that thisidea had outlived
its acceptability, and must yield to a policy which provides for eventual
achievement of national aspirations on the part of the Bantu peoples.
It may be that the factors just mentioned contributed in part
together with wrong factual assumptions, emotionalism and rank distor
tions-to misconceptions of the nature that have been mentioned above 3,
whereby "apartheid" was not only understood in different senses, but
associatcd with racial oppression. Thus in 1950, Dr. Verwoerd, at that
time Minister of Native Affairs, had occasion to say the following in an
address to the Native Representative Council:
"The supporters of the present Government say very clearly ...
that they will not be prepared to sacrifice white supremacy in South
Africa. But when we do sav that, we also say something else which
is always lcft out when people talk about this policy. This is what
we say:
Just as we want that supremacy in our areas, so we are prepared to
grant the same supremacy to the Bantu in his area. We don't want
for ourselvcs what we are not prepared to cede to others .. .4''
15. On the whole, howevcr, white there was acknowledgement in prin
ciple of full opportunity for the Bantu to develop into self-governing
national units 5. and of their right to supremacy in their own areas 6,
there was in the earlier post-1948 years no official announcement, as
a matter of practical politics, of complete political independence of
Bantu homelands as an attainable ultimate stage of development.
The general formulations of policy and principle were wide enough
to include the possibility of such an end result, and there can be no doubt
about its being contemplated by the National Party leaders as logically
inherent in the policy they were advocating. But explicit formulation
1 Krüger, D. W., South African Parties and Policies r9ro-r96(1g6o},pp. 402-403.
2 Ibid., p. 408.
l Vide para. 8, supra.
4 Grobler,J. H., A/rica's Destiny (r958), p. 89.
' Vide para. 13, supra.
6 Vide para. 14,supra. COUNTER-MEMORIAL OF SOUTH AFRICA
and public announcement at first remained in abeyance, for various
reasons. These concerned mainly the need to proceed, in the matter of
practical application, by progression, in accordance with the fruition of
preparatory steps paving the way for each successive stage. A factor of
particular importance to be kept in mind was the level of advancement,
receptivity, readiness to co-operate, and psychological approach generally
of the Bantu peoples themselves. A pace too far in advance of stages of
development attained in these respects, could have wrecked the whole
project, or could at least have set the dock back considerably.
16. As early as 1950 Dr. Eiselen 1 outlined certain of the steps that
were required to be taken in the promotion of a policy of separate develop
ment, writing in that regard, inter alia, as follows:
"Separation as defined above represents an aim which cannot be
achieved without a constructive policy, a policy making people
ready for scparation. Preparing millions of people for an independent
form of life is a tremendous task, which requires careful planning
and thereafter working to a constructive programme of purposeful
action 2."
As examples of the constructive steps to be taken, the author men
tioned firstly the building-up of "self-supporting native communities in
certain carefully chosen areas", whereby a desire would be created
"among the natives in general for similar opportunities of self-realisation",
and, secondly, adjustment of its economy by the European community
with a view to functioning with a progressively decreasing supply of
"cheap labour". He proceeded:
"... the success of the policy of separation will be determined, on
the one hand, by the willingness of the European to guide and to
assist the natives during the initial stages, and, on the other hand,
no Iess on the abîlity of the natives thcmselves to profit by such
guidance and help. Separation, therefore, depends on constructive
education, a process much more comprehensive than the literary
training offered in our native schools to a minority of children of
school-going age. Such education cannot be given overnight, more
particularly as the teaching personnel too will have to adapt itself
to the new requirements 3."
17. Successive stages of preparation 4, were duly reached, as will be
5
briefly indicated later in this Chapter . And thus the stage was set for
Dr. Verwoerd, as Prime Minister in 1959, in an historie address to the
House of Assembly, to announce unequivocally the practical acceptance
of the logical conclusion, viz., independence for separate Bantu ~tates
as an attainable end result. The Prime Minister, inter alia, stated ex
plicitly:
"Indeed we regard the territorial authorities ... [in the Bantu
areas] as independent bodies in the first stage of development. There are
anumber ofunpopularcontrol methods which the guardian exercises
2 Vide para. 8, suf>t'a.
Eiselen,\V. W. .M., "IsSeparation Practicable?", in journal ofRacial Affairs,
Ja3. r950, p. r3.
Ibid.,pp. 13-14.
• More or Jess in accordancewith those foreshadowed by Dr. Eiselen.
5 Vide paras. 36 and 4r-49. infra. SOUTH WEST AFRICA
at the moment only in order to guide them along that road, but which
1
will lapse as they advance from one stage to another ." (Italics
added.)
And in his abovementioned London address of April I96I the Prime
Minister concluded by saying:
"We prefer each of our population groups to be controlled and
governed by themselves, as nations are. Then they can co-operate
as in a Commonwealth or in an economic association of nations
where necessary ...
SouthAfrica willproceed in al] honesty and fairness to seek-albeit
by necessity through a process ofgradualness-peace, prosperity and
justice for all by following the model of the nations which in this
modern world means political independence coupled with economic
interdependence 2." (Jtalics added.)
In the light of the aforegoing, certain relevant, basic aspects of the
policy of separate development as it has evolved in South Africa, can
briefl.ybe emphasized, as in the next succeeding paragraphs.
18. The ,Policy is not one of domination, but its very antithesis, viz.,
one aimed at the evolutionary termina.tion of the supremacy of the
guardian and the emancipation of the wards. ln so far as it involves
continued control by the guardian over the wards, this is a necessary
arrangement of a temporary, transitional nature only, continued with
express acknowledgement of the principle that it is exercised "only to
gwde them along the road" and that "it will lapse as they advance from
one stage to another" 1•
In his London address of April 196I, after stating the concept of "our
population groups to be controlled and governed by themselves, as
nations are", with possible co-operation as in a Commonwealth or
economic association 2,Dr. Verwoerd proceeded:
"Where is the evil in this? Or 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 2,"
19. The aim of the policy is to sec-urejusticefor att, Ma basis of potential
equality and freedom. The policy indeed rests on acknowledgement of the
just claims and moral rights of each group to advanccment, inter alia,
towards self-government and independence, but with due recognition
of the need to strike a balance between competing or conflicting daims or
aspirations of comparable moral value, resultîng in some necessary
measure of abatement of each of such daims.
"To judge the morality of a policy it must be remembered that in
al] ethics a balance must be struck between different values, different
rights. Absolute right for the one may mean tremendous injustice
to the other 3."
1 U. o/ S.A., Pa,/, Deb., House o/ Assembly, Vol. 99 (1959), Cols. 63-64.
2 Address to South Africa Club, London, in Pact Paper 9r, Apr. l96I, p. 14.
3 Address by Dr. Verwoerd to South Africa Club, London, in Fact Paper 9r,
Apr. l96I, p. 9. COUNTER-MEMORIAL OF SOUTH AFRICA
Failing such balancing and abatement, the situation arises of an
emancipated people goveming not only itself but other peoples as well.
As was stated in 1960 by Sir Charles Arden-Clarke, experienced Adminis
trator in Africa and last Governor-General of the Gold Coast:
"The question in East and Central Africa is not really one of
Africans governing themselves: it is one of Africans governing people
of other races. 1f they misgovem badly, they willinjure not only the
Europeans and Asians but themselves ."
20. The abjectsand aims of the policy are in principle the same as tlwse
pro/essed for suggested attempts at bringing about an integrated, muUi
racial State, as will be obvions from the previous two paragraphs. But
the methods employed are diametrically opposed, because of the belief
that attempts at a multi-racial community cannot, in the African context,
succeed in achieving the objectives of justice, equality and freedom for all.
It is therefore not truc, as is often represented, that in its moral outlook
and idealistic objectives the policy of separate development runs counter
to modern conceptions of human rights, dignities and freedoms, irrespec
tive of race, colour or creed. On the contrary, these very conceptions
underlie the policy, and its objectives are to achieve an end result obviating
alldomination of groups by one another. The difference between pro
tagonists of this policy and their sincere opponents (i.e., excluding those
motivated by ulterior considerations) concern only questions of means:
which of the two methods, attempted integration or separate develop
ment, is calculated better to achieve the common ideal?
The following are somc extracts, relevant to this topic, from an address
by the Prime Minister to the House of Assembly of the South African
Parliament on 23 January 1962:
"... either it is not realized that there are two ways, not one, of
applying the principles on the basis of which one can satisfy moral
arguments, or that fact is deliberately shut out of their thoughts.
The one is by way of a multi-racial state and the other by way of
separation, that is to say, where thcre is a separation within states
or amongst communities. Let me illustrate that with an example.
There is the franchise principle or even that one form of it, namely
'one man, one vote'. You can have the franchise on the basis of 'one
man, one vote' in a multi-racial state but you can also have voting
rights for each group cvcn on the basis of 'one man, one vote' where
a separation is brought about in the political life of those groups.
It is possible thereforc to give effect in two ways to the principle
on which people rely so much, namely, the principle of human
dignity, of the right to vote. The difficulty is this: There are people ...
who advocate one method, a multi-racial state, and there are others
who advocate the path of separation as the method to comply with
aU those loftyprinciples. That is the issue about which thestrugglefa
being waged. The problem therefore is how to give political rights in
South Africa on a sound basis and in a way which is fair and suited
to each group 2."
1 Arden.Clarke, C., "The Changing role of White leadership in tropical Africa",
in Optima, Dec. 1960, p.181.
2 R. of S.A. Pari. Deb., House of Assembly, 19 Jan. to 26 Jan. 1962 (Weekly
edition), Col. 69, SOUTH WEST AFRICA
In the course of mentioning advantages of a policy of creating separate
states, Dr. Verwoerd stated:
"... it could offer an opportunity of developing equalities amongst
the groups. It could satisfy the desire for the recognition of huma.n
dignity. Because just as it is possible for us to live with the Black
states on a basis of equality as separate states, to negotiate with each
other and to help each other when necesasry, so it would also be
possible here if separation could be put into effect 1".
And further:
"... the creation of states has brought with it contentment, not
only in the present age but right throughout history. In what way
has satisfaction been given in Africa, notably in our time? Africa has
been given satisfaction through the creation of states, and where
there is conflict that is as a result of the fact that these new states
are not states which embrace national cntities but which have state
boundaries cutting right across national entities. There they have
trouble. Difficulties arise where the founders try to throw together
in one state more than one national community. Whenever account
has been taken of national entities when creating new states,
contentment has been the result 1."
Reverting to South Africa he stated:
"It is as unlikely that it will be possible to. hold togcther the
Whites and the Bantu in peace and free of strife in one multi-racial
unit as it is to do so in the case of Black nations in other parts of
Africa or as it is to tluow together Xhosa, Basuto and Zulu without
conflict into one communal entity. They too are just as proud of
their own national identity as we as Whites are of our national
identity ...
Any attempt to force different communities into one national
entity will never succeed. Suppression will be possible but never
co-operation between separate groups who desire to remain separate.
The White man the Coloured and the Indian can only be pushed out
or absorbed. Just as little as it is possible in Tanganyika, from which
more was expccted, just as little as it is possible in Kenya, from
which less is expected, and just as little as it is possible in the
Federation where fear and anxiety are gripping the hearts of the
people because they realize which way things are heading, solittlewill
it be possible in South Africa to get the groups to live separately and
to co-operate on a basis which will be fair in a multi-racial state. In
other words, it is onlv the policy of nation building, the policy of
good neighbourliness which can hold out any hope that one will be
able to eliminate racial hatred which cannot be eliminated in an
enforced multi-racial state 2."
2r. The basic view that it will not in practice be possible for Europeans
and Africans to govem a common homeland jointly, in a manncr which
is fair and satisfactory to both, is one that is steadily and continually
gaining support, not only in the form of comment by students of the
problem, but also by proof through actual, current events.
1 R. of S.A. Pari. Deb., House of Assembly, 19 Jan. to 26 Jan. 1962 (Weekly
edition}, Col. 7r.
2 Ibid., Col. 72. COUNTER-MEMORIAL OF SOUTH AFRICA
The realization is breaking through that the protagonists of multi
racialism can point to no single instance where their idea has in practice
succeeded, or is even showing signs of success, 1n cases where the popu
lation groups in question differ so greatly as is the case with Europeans
and African Natives.
Thus H. V. Hodson, a former editor of The Sunday Times, London 1,
wrote in December r962 of "the problem ... [in AfricaJ ... of finding a
way in which people of different races could live and work together
under political independence' ', stating that "This latter problem is the
great unresolved conundrum of A/rica. Let us admit that with alt our efforts
and theoriesno acceptablesolution has been jound i_"{Italics added.)
W. van Heerden, an accomplished South African newspaper editor and
student of African Affairs, wrote in June 1962:
"Race consciousness, race antagonism and race ambitions are
everywhere blasting to futility the efforts in different territories to
generate hi-racial or multi-racial nationhoods. In not asingleAjrican
3
territory can one, up to now, discem even the beginnings of success .''
(Italics added.)
In an article entitled "Black and White Reality" in the Sumlay Tele
graph of r9 May 1963, Peregrine Worsthome wrote, inter alia:
"The latest evidence in Alabama of how deep, cruel and passionate
racial feelings remain, coupled with the recent tragic collapse of
Britain's multi-racial experiment in Central Africa, surely raises a
grim question which must be burked no longer. Is it reasonable or
realistic for men of good will to go on assuming that blacks and
whites, at least in the crucial continents of Africa and North America,
are ever going to live amicably sidc by side in genuinely multi-racial
societies?
M:y answer isemphatically 'no'.White men in predominantly black
societies are almost certainly going to become under-privileged and
black men in white countries are going to remain so....
It is surely quite unrealistic to imagine that existing white
minorities in Kenya or the Rhodesias, or any whites who in future
may be tempted, either for reasons of gain or idealism, to go and live
in the black States, will receive equal treatment .. Y'
The article concluded by suggesting-
"... that a wholc host of new ideas might emerge, enormously
beneficial to both races, if men of good will henceforth took reality
as their point of departure, and worked forward from there, rather
than setting their eyes blindly but firmly on a multi-racial goal that
each year recedes ever faster into the realm of tragic illusion 4".
22. Actual events in Africa more than bear out the above comments,
and also the following, earlier statement on the same topic by Dr.
Verwoerd in his r96I London speech. Referting to cases of territories
1
Now Provost of the Ditchley Foundation, an institution aimed at the furthering
of2understanding between the British and American peoples.
Hod$on, H. V., "Where America and Britain Agree and Disagree about Africa",
in Optima, Dec. 1962, p. 173.
3 Van Heerden, ,v.. "'Vhy Bantu States?", in Of,tima,June 1962, p. 6o.
4 Wor$thome, P., "Black and ,Vhite Reality", in theSunday Teleg,aph, 19 May
1963. SOUTH WEST AFRICA
470
elsewhere in Africa where White comrnunities of substantial nurnbers
had become settled, he stated, inter alia:
"ln the first planning it was accepted that their rights should be
fully protected and the idea of partnership was born. This partner
ship was, for a long time to corne, actually intended to be junior
partnership for the Blacks and the continued control as senior
partner by the Whites. Warnings made no impression on the rulers
overseas that this theory would not work out that way, with the
inevitable result that the black majorities soon demanded, and are
quickly receiving, the right to what amounts to full control with the
white man pushed out of politics to all intents and purposes ."
The trend of events in this regard in the Congo, Kenya, Tanganyika
and Nyasaland are too well known to require recounting 2•
Perhaps the only remaining instance on the continent of Africa where a
real attempt is still being made at the creation of a genuine multi-racial
community on a basis of partnership between White and Black, is
3
Southern Rhodesia. As will appear from Annex B below , the present
constitution and franchise arrangements are such as will probably result
in a majority of the members of the Legislative Assernbly being White for
some time to corne. But the fact is well known, and has been much
emphasized, that this process is likely to be reversed in favour of an
African majority in about IS years' time-i.e., if the present arrangements
continue in force. There is overwhelming evidence, however, that this
arrangement does not satisfy any African national leader, whether in or
outside Southern Rhodesia.
Thus Mr. Joshua Nkomo, a leader of the Zimbabwe African Peoples
Union (ZAPU), a major African political party in Southern Rhodesia,
told a Committee of the United Nations in the first half of I9{)3 that
"The Africans of Southern Rhodesia did not recognize the Govern
ment ... which had corne to power under a Constitution which they
had rejected without reservation 4."
On another occasion he said:
"... ail ZAPU branches in Northern Rhodesia, Nyasaland and other
countries will be consolidated 'to carry on the struggle we are
fighting to run the country, and anything short of that is un
acceptable' 5".
Already in June 1962 the General Assembly of the United Nations
had passed a resolution (supported ~y all African Members) reading,
inter alia, as follows:
"The General Assembly, ...
Considering that the vast rnajority of the people of Southern
Rhodesia have rejected the Constitution of 6 December r96I,
Deploring the denial of equal political rights and liberties to the
vast majority of the people of Southern Rhodesia,
· Noting with regretthat the Government of the United.Kingdom of
1 Address to South Africa Club, London, in Pact Pape, 9I, Apr. 1961, p. r3.
z Vid11jn general, Chap. VI, paras. 44-47 and 50, supra, and Annex B, paras.10,
23 and 27, infra.
' Vide Annex B, para. 2,infra.
4 U.N. Doc. A/5446, Add. 3, para. 40, p.12.
5The Star, 22 Sep. 1962. · COUNTER-MEMORIAL OF SOUTH AFRICA
471
Great Britain and Northern Ireland has not yet taken steps to trans
fer all powers to the people of Southern Rhodesia, as required under
paragraph 5 of resolution 1514 (XV),
2..Requests the Administering Authority:
(a) To undertake urgently the convening of a constitutional
conference, in which there shall be full participation of representatives
ofaJl poJibcal parties, for the purpose of formulating a constitution
for Southern Rhodesia, in place of the Constitution of 6 December
1961, which would en.surethe rights of the majority of the people, on the
basis of 'one man, one vote', in conformity with the principles of the
Charter of the United Nations and the Declaration on the granting
of independence to colonial countries and peoples, embodied in
1
General Assembly resolution 1514 (XV): ." (Italics added.)
On 5 August 1963 the Governments of Ghana, Guinea, Morocco and
the United Arab Republic submitted a letter and memorandum to the
Security Council alleging that the continuance of the constitutional
position in Southern Rhodesia "is likely to endanger the maintenance
2
of international peace and security" •
23. The policy of separate development is not based on a concept of
superiority or inferiority, bittmerely on the fact of people being difjerent.
This factor emerges dearly frorn those that have been discussed in
the preceding paragraphs. The point has been made explicitly, e.g., by
Dr. Verwoerd in his r961 London speech as follows: ". . . the Govern
ment's policy isnot based on people being inferior but being different ... 3"
Addressing the House of Assembly in the South African Parliament in
June 196!, l\fr. M. D. C. de Wet Nel, M.inister of Bantu Administration
and Development, stated as follows:
"The traditional approach has always been a policy of recognizing
the equal status ... of the Bantu, a policy of differentiation ... but
differentiation without inferiority ... This is my approach to this
problem of the Bantu, and jt is the basis of the approach of the
people of South Africa ... What is the 'equality' of many of these
people who advocate so-called equality? His 'equaJity' isthe reten tion
of what is his own and the condemnation of what is peculiar to the
other man. He cornes to the Bantu and he says: 'Look, we are equal
but we are so equal that you must only speak my language, your
language means nothing to me; we are so equal that you have no
culture, only my culture counts. We are so equal that we must pray
together in the same church but not in your church; it is an inferior
church, we must worship together in my church', ... Our attitude
is that there are differences ... but these are differenc:eswhich are
not accompanied by inferiority 4."
24. The poticy of separate development is constructive, not destructive.
This factor will also be abundantly apparent from what has been set
1 G.A ., O.R., Sixteenth Sess., SupNo. 17 A (A/5 roo Add. 1), p. 3.
2 U.N. Doc. S/5382, p.1.
3 Address to South Africa Club, London, in Fact Paper 9r, Apr. r961, p. 8.
4 R. of S.A. Parl. Deb., House of Assembly, 12 June to r6 June 1961 (Weekly
edition), Cols. 7994 and 7998.472 SOUTH WEST AFRICA
out in the preceding paragraphs. Dr. Verwoerd, in his 1959 address to
the Assernbly of the Union Parliarnent, referred to above , stated as
follows in this regard :
"It is on that point which I wish to place ail-the emphasis: That
our struggle is not in the first place destructive, but constructive.
We want to build up a SouthAfrica in which the Bantu and the White
man can live next to one another as good neighbours and not as
people who are continually quarrelling over supremacy 2."
25. Having regard to the specîfic problem of the future of South
West Africa and its peoples, as outlined earlier in this Chapter, Respon
dent can by way of solution see no alternative to an approach involving
similar objectives and principles to those of the South African policy of
separate development, in the respects set out in the preceding para
graphs. Respondent emphasizes in this regard that the approach
regarding objectives and principles is the important matter-in regard
to detailed policies, measures and practices designed to achieve the
objectives and to implement the principles, there must always be a
necessarx: adaptation to the peculiar circumstances of the Territory and
the spec1ficprinciples of the Mandate. The aforegoing reference to policies
in South Africa istherefore to be regarded as being merely for purposes of
illustration, and not as a matter for adjudication per se. By way of
recapitulation, brief further reference only is required to the question of
possible alternatives, as in the next succeeding paragraphs.
26. One rnethod of approaching the problem may be to abandon ail
sense of moral responsibility towards minority groups, in favour of the
African nationalistic ideal of government of the whole territory by
African Natives as representatives of the majority of an integrated
electorate-which govemrnent could well, sooner or later, become a
dictatorial clique.
The minority groups which would thus be left to their fate would
include those at the highest and the lowest levels of development. In
respect of the latter, there would be no sacred trust, as now in existence,
to curb the conduct of the governing group. There would be a danger
of the old tribal animosities coming to the surface again, so that, e.g.,
the Himba and Tjirnba might be completcly dispossessed of the areas
traditionally occupied by them, as they were in part by a Hercro group
in 1915 3,and of the Bushmen again becoming hunted as "human vermin
of the veld" 4•
As regards the European group, its members would be faced with the
alternatives of evacuation from a country which has become their only
home, by birth or adoption, which they and their forebears have de
veloped from a desert-like wildemess to its present stage of economic
advancement-or, on the other band, of staying and being ruled by a
preponderantly Black African population or a dictatorial clique. Similar
considerations, if not to quite the same extent, would apply to the
Colourcd and Baster communities.
Frorn the population figures set out in Chapter III above 5, it will be
' Vide para. r7, supra.
2 U. ofS.A. Parl. Deb.,House of Assembly, Vol. 99 (1959), Col. 66.
3 Vide Book VI, Chap. III, para. 39, of this Counter-Memorial
• Vide Book III, Chap. Il, para. 56, othisCounter-Memorial.
' Vide Chap. III, para. 5, supra. COUNTER-MEMORIAL OF SOUTH AFRICA 473
apparent that the Ovambo is by far the largest population group in the
Territory, constituting about 45percent. of the total population. Under a
system of universal adult or adult male suffrage for the whole Territory
as an integrated politica1 entity, the Ovambo group must necessarily
be able to gain political control, save in the most unlikely event of all
other groups combining to keep them out 1. Political control by the
Ovambo would operate not only in respect of minority groups such as
the Europeans, the Coloured group, the Rasters, the Nama, the Dania,
the Herero and the Bushmen, but also in respect of the whole of the
Territory of South West Africa. It may be emphasized again that basically
the Ovambo have always been inhabitants of Ovamboland alone, and
not of South West Africa as a whole. The more central and southern
parts of the Territory formed a battle-field between other groups, and
eventually became apportioned between the abovcmentioned minority
groups as their homelands or places of residence. ControJ by the Ovambo,
would therefore in cffect mean aggrandisement or colonization on their
part~although as a people they have ncver attcmpted or aspired at the
achievement of such a situation. This would be onlv one of the anomalies
that could arise from the artificialexpedient of treating ail the population
groups of the Territory as an integrated political entity:
It does not secm to Respondcnt that anyone could seriously suggest
that an approach as outlincd above would be in consonance with Res
pondent's obligations under or in pursuance of the Mandate.
27. Another method of approach may be to attempt to establish a
multi-racial Society on the basis of identical rights for all.n view of the
utter failure, noted above, of ail such attempts in other parts of Africa,
and of the fact that no cxperiment of this kind has ever succeeded, or is
showing any signs of being likely to succced, it does not secm to Respon
dent that this alternative can really commend itself. The evidence is
overwhelming that African nationalism does not in fact desire such a
multi-racial State, that it will not tolerate any process of gradualisrn
aimed at bringing about such a State, and that its only demand is absolute
power for African Natives on the basis of their majority. In other words,
this second alternative is but a slightly longer drawn out process than the
first, but otherwise one involving exactly the same results.
28. The only remaining alternative is thereforc that of "live and let
live", a policy which seeks to remove the competition and conflicts of
interest which lead to friction and a struggle for supremacy in an at
tempted process of integration, and which seeks to bring about free,
self-goveming communities which can co-operate with one another as the
nations of the world do in matters of mutual economic and other interest.
In the next succeeding paragraphs consideration is given to certain ·
implications of the application of a policy with the above objectives to
South West Africa and its peoples.
29. Self-detcrmination for various groups could possibly and fitly be
achieved at different points of time. This implication renders unneces
sary any delay in the attainment of self-determination by more advanced
groups merelybecause of lack of advancement and maturity on the part
1 In co-operation with even a relatively minor group such as their neighbours the
Okavango peoples, they would have an over-all majority vis-à-vis al! the other
population groups combined.474 SOUTH WEST AFRICA
of other groups. Conversely, it involves for the latter groups the safeguard
of retention by Respondent of the sacred trust obligations towards them,
after other groups may have chosen independence in the exercise of their
right of self-dctermination-and protection against the threat that
"self-determination" by the stronger groups could result in a denial of
self-detennination to them.
30. An implication inherent in the previous one is that during the
transitional stage Rcspondent must, as guardian, rctain control over the
various groups unti1 they have reached a level of sufficient maturity for
the exercise of self-determination 1.
31. With a view to assisting and guiding various groups towards
possible self-determînation, development of their political institutions is
essential. Respondent proposes in this regard to apply experience gained
in the same direction in South Africa, and to guide the groups towards
an application of measures whereby an evolution will be possible from
traditionalsystems to others more suited to the conditions of the modem
world. Further indications of what is envisaged in this regard will be
found later in this Chapter 2dealing with political rights. Respondent
wishes to emphasize, however, the importance which it attaches to the
factor of evolution as opposed to revolution. It considers that the tra
ditional basis is not to be discarded suddenly or completely in favour of
systems evolved in European or other countries for circumstances and
pcoples totally different from those of Africa. lt therefore favours a
course whereby modern elements are grafted upon the traditions and
cultures of the particular African groups. Consequently Respondent in
this process regards as of vital importance the actual co-operation of the
relative groups in the matter of their political advancement, and seeks as
far as practicable and equitable to give effect to the wishes of the groups
themselves as to the forms which succssive stages of advancement are
to take 3•
32. It willbe evident that the success and also the equity of the solution
aimed at through the application of a policy of separate development will
rest basically on the apportionment of a sufficient arca of South West
Africa to each major population group to serve as a homeland for it, in
which its members can develop to full self-realization.
History has largely made the necessary provision in respect of the
northem Native groups, i.e., the Caprivi peoples, the Okavango group,
the Ovambo and the inhabitants of the Kaokoveld. The intemecine
warfare and strife between some of the more southem groups, and also
the armed conflicts during the German regime, did not affect these northern
territories and their peoples. Although they have been assisted by Res
pondent towards improvement of their traditional methods of agriculture
and stock farming, their economies are on the whole still of a subsistence
nature. In order to cope with the growth of the populations, the standard
of economic Iife in these areas will have to be raised, and this is therefore
a matter to which speôal attention is being directed in the next phase of
development. But subject to these qualifications, and possibly to some
adjustment of the areas available to the particular groups, the provision
1Compare paras. 17 and 18, supra.
2Para. 40, read with paras. 36-39, infra.
3Compare ibid., particularlypara. 37. COUNTER-MEMORIAL OF SOUTH AFRICA 475
made for them by history appears to be substantially adequate and fair..
In the case of the Native groups in the Police Zone, different considera
tions apply. On the assumption of the Mandate, Respondent, as has been
indicated, found them in a largely scattered and dispossessed state,
except for some provision made during the German regime for places of
residencc for certain specific communities. Ashas been indicated, and will
be dealt with in more detail later, Respondent has made provision for
considerable additional reserves for these groups. Nevertheless, the
existing reserves are, inter alia, because of the population increases on the
part of these groups under Re~pondent's tutelage, not nearly adequate to
serve as homelands in which each group can develop to proper self
realization.
The reserves were, indeed, not planned for such a purpose, in view of
the contemplation that employment would be offered to a large number of
the rnembers of these groups in the economy of the European population.
This factor, together with historical reasons pertaining to treaties and
agreements with specific communities, largely account for the fact that
the reserves are not consolidated homelands for each group, but scattered
units for localized sections of the groups concemed. Early attention to
the making of revised and adequate provision in this regard is therefore
an important step in the implemen tation of the policy of separate develop
men t.
33. In the case of ail homelands, presently existing and planned for
the near future, a scheme of accelerated economic development is aJso a
matter of first priority. This is so not only for the basic reason that the
subsistence of a growing population is to be provided for, but also in
order to provide individual members of the group concerned, who may
have attained a level of education and development above the average,
with opportunities to find a proper outlet for their abilities and quali
fications.It is in this respect particularly that, in Respondents' view, the
policy of separate development offers advantages in the economic sphere
far in excess of those involved in any alternative policy. It avoids the
possibility of members of one population group feeling themselves
threatened by the educational and economic development on the part of
others. It avoids, also, the processes of discrimination in the private
economic sector which appear to be virtually unavoidable in ail cases
where atternpts are made at encouraging economic integration between
groups as divergent as African Natives and Europeans. In order to
smooth out transitions to be effected in this regard, and indeed to en
courage members of the Native groups to employ their training and
capabilities towards the advancement of their own peoples and the
development of their own homelands, Respondent will for the time being
have to apply certain measures which will, within the economy of the
White population group, favour members of the latter group in regard
to higher forms of employment and economic activities. Conversely,
however, absolute preference, encouragement and protection are con
sistently being given to members of the Native groups in these same
respects in all matters pertaining to such groups themselves and their
particular homelands, as will be indicated further in later portions of
this Counter-Memorial.
34. For varions reasons, progress in the actual implementation of the
constructive aspects of the policy of separate development has in South SOUTH WEST AFRICA
West Africa been slower than in the Republic of South Africa itself.
One of the reasons is that ever since assumption of the Mandate by
Respondent, the stage of advancement of the indigenous peoples of
South \Vest Afrka was always considerably below that attaincd by
many Bantu in South Africa, particularly in the educational and eco
nomic spheres. Another important factor has been that, by reason of the
specific international obligations undertaken by Respondent in respect of
South West Africa, Respondent has been cautious about applying to the
Territory any policies operative in South Africa, even with adaptations
to local conditions, without first having established their soundness in
practice in South Africa itself. This has become ail the more necessary in
the postwar years, during which application of South African policies
to South West Africa has continually met with a barrage of emotionally
hostile criticism from some members of the United Nations, particularly
African countries. The application to South West Africa of the new
methods and policies introduced in Bantu education in South Africa
affords an example in point, as will appear from the treatment of edu
cation in alater portion of this Counter-Memorial.
35. Respondent has for some time now been convinced that cir
cumstances in South West Africa have also developed to a stage where
accelerated and co-ordinated application of the constructive aspects of
a suitably adapted policy of separate development has become possible
and highly desirable. With this objective in view, Respondent has
appointed a Commission of experts of exceptional standing to investigate
the conditions of the inhabitants of South West Africa and particularly
the non-White inhabitants, and to make recommendations in respect of
their further advancement.
The composition of the Commission is as follows:
Chairman: The Hon. F. H. Odendaal, Administrator of the Transvaal;
OtherMembers: Dr. H.]. van Eck, a leading SouthAfricanindustrialist
and economist, and Chairman of the National Development Cor
poration;
Dr. H. W. Snyman, Professor of Internai Medicine and Vice-President
of the South African ?.Iedical and Dental Council;
Dr. J. P. van S. Britwer, Professor of Social Anthropology, who has
done much previous research in South \Vest Africa;
and
Dr. P.J. Quin, an agricultural economist and ethnologist, member of
the National Nutrition Council, the National Food Research Committee
and the National Soil Conservation Board.
Its terms of rcference read:
"Having regard to what has already been planned and put into
practice,to enquire thoroughly into further promoting the material
and moral welfare and the social progress of the inhabitants of South
'West Africa, and more particularly its non-White inhabitants, and
to submit a report with recommendations on a comprehensive five
year plan for the accelerated development of the various non-White
groups of South West Africa, inside as well as outside their own
terri tories, and for the further development and building up of such
Native territories in South West Africa.
\Vith a view to this investigation, your attention is particularly
directed to the task of ascertaining-while fully taking into con- COUNTER-MEMORIAL OF SOUTH AFRICA 477
sideration the background, traditions and habits of the Native in
habitants-how further provision should be made for their social and
economic advancement, effective health services, suitable education
and training, sufficient opportunities for employment, proper
agricultural, industrial and mining development in respect of their
territories, and for the best form of participation by the Natives
in the administration and management of their own interests.
You are empowered to investigate any other matter which in your
opinion may be of importance in this connection, including the
finandal implications and the manner in which any appropriation
of funds should take place 1."
The report of this Commission has been due for some months now,
and is expected to be published in the very near future. Unfortunately
it has not become available at an early enough stage to be dealt with in
this Counter-:;.\:Iemorial. In so far as its recommendations, and the
Respondent Government's reactions thereto, will be relevant to the
matters concemed in this case, Respondent will at a subsequent stage
take the necessary steps, with the leave of the Court in sofar as necessary, to
present such information to the Court forits consideration.
36. For the reasons given above 2 developments affecting the Bantu
in South Africa have progressed further than has been the case in respect
of the Natives of South West Africa. A full and comprehensivereview
of such progress would again be out of place in a case in which policies
and practices in South Africa are not in themselves matters for adjudica
tion. The case concerning Article 2 (2) of the Mandate is, however, in
essence concerned with questions of intentions or purpose or good faith 3,
relative to a sacred trust originally undertaken by Respondent by inter
national engagement. It may therefore, by way of illustration, be instruc
tive to have brief regard to certain aspects of what has been done and
accomplished in South Africa, in pursuance of a policy of separate
development, independently of any international engagement.
In particular, considerable progress has been made in South Africain
respect of political deve1opment. In this regard, Respondent has sought
to promote growth from the roots of the indigenous Native institutions.
As was said by Respondent's Prime Minister with reference to the policy
in respect of political development of the Bantu:
"... a system which has developed over the centuries amongst the
Bantu, a system which is known to them, indeed a system which is
engraved in their souls and which is incorporated in their own Native
laws, is being taken as the starting point for development 4".
He further said that political advancement~
"... starts with the system which is known to them and which is
their own, and that their form of government and freedom will grow
and be adapted in accordance with the demands of modern civili
zation. It will be adapted by the Bantu themselves with the as
sistance that we can give them 5."
1 Departmental Information.
2 Vide para. 34.
3 Vide Chap. II, para. 14in fineand paras. 16 and 21, supra.
+ U. ofS.A., Parl. Deb., House of Assembly, Vol. 101 (1959), Cols. 6215-6216.
5 Ibid.,Col. 6216. SOUTH WEST AFRICA
In accordance with these principles, statutes passed in 1951 1 and
1959 2 made provision for three types of Bantu authorities, viz., tribal,
regional and territorial authorities.
Tribal authoritics consist of a captain or chief of a tribe and a number
of advisers. As their name indicates, their fonctions are confined to the
sphere of the particular tribe. Regional authorities are cstablished for
two or more tribal authorities, from which their members are drawn.
Their fonctions pertain, inter alia, to educational institutions, the con
struction of roads, bridges, canals, dams, etc., supervision of hospitals
and clinics and the improvement of farming methods.
Territorial authorities are established for two or more regional au
thorities so as to comprise Bantu national units. They consist of a
chairman, nominated by the State President, and as many members as
may be required. The chairman and members are chosen from members
of the regionaI authorities. The fonctions of territorial authorities, in
broadly the same sphere as those of regional authorities, extend over
the whole area of the national unit, and enable the authority to speak on
behalf of its people.
In the Transkei, in view of a distinctive historical background, there
are some slight variations in the composition, powers and names of the
authorities corresponding to those in other parts of the country. In this
area there are tribal or community, district and regional authorities,
and formerly there was also a territorial authority, which has developed
further, as will be shown bclow.
These Ban tu authorities have been introduced progressively, and with
the co-operation of the Bantu. Today there are no less than five territorial
authorities, 86 regional authorities 3and 445 tribal authorities +.
37. These Bantu authorities formed part of an evolutionary growth and
were not considered to constitute the limit to which Bantu political
development could take place. In 1951 already, the then .i\Iinister of
Native Affairs (now Prime Minister) said:
"I want, furthermore, to emphasize that the whole process is one
of gradual development. We shall make a start by establishing tribal
authorities. In areas which may already be ripe for the establishment
of a regional authority, that will then be donc as soon as possible.
In the areas in which the required maturity does not yetexistweshall
proceed to the establishment of regional authorities only after the
tribal authorities have proved their maturity. As the regional
authorities devclop and show that they can fulfil the duties entrusted
to them and can carry the responsibilities which they will have to
carry, the following step can be taken, namely, the development
towards territorial authorities ... \Vhen the stage has been reached
that territorial authorities are functioning satisfactorily, the pos
sibility of a further stage of development will, in consultation with
5
them, have to be considered and determined ."
1 Act No. 68 of 1951 (S.A.), in Statutes of the Union of South Africa I95r, PP·
II52-II79.
2Act No. 46 of 1959 (S.A.), in Statutes of the Union of South A/Yica r959,pp.
513-53r.
3 Including districauthorities in the Transkei.
+ Including community authoritiesin the Transkei.
' U. of S.A., PaYl. Deb., House of Assembly, Vol. 76 (1951), Cols. 9809-9811. COUNTER-MEMORIAL OF SOUTH AFRICA 479
As will be seen ·below, political authority in the Transkei has in fact
proceeded further than the stage of a territorial authority.
The acceptance of Bantu authorities by the indigenous population
groups and the development potential of this system has been strikingly
illustrated by events in the Transkei. In April I96r the Transkei Terri
torial Authority adoptcd a motion calling on Respondent Government to
grant self-government to the Transkei and appointcd a committee to go
into the implications of such a rcquest.
The attitude of Respondent Government to this request, was stated
by the Prime Minister as fo1lows:
"The Government then declared its willingness to grant self
government to the Transkei. Approximately five months aftcr the
resolution passed by the Transkeian Authority in May of last year,
that is to say, towards the end of last year, I personally met the
Executive Council of the Transkei, who were supported by their
Counciilors, in Pretoria.
I conveyed to them the Govemment's willingness to help them in
connection with this step, since their own organization apparently
considered itseif capable of undertaking this task ... I putit to them,
therefore, that I would Jike to hear from them precisely what type
of constitution they had in mind.
The Government will therefore grant the Transkei self-govern
ment. The Transkeian Authority will have to obtain clarity as toits
ideas concerning the form and content of the constitution and will
then have to came and discuss it with us ."
Regarding the composition and constitution of the various govemmen
tal organs, the Prime Minister said:
"If, as indicated by the Basuto and Swazi nations, it isdesired that
there should be a suitable form of representation through the Chiefs,
directly or indirectly, in the Transkei Parliament, then they will have
to say so. As far as the Government is concerned, it wants the elemcnt
of representation to be introduced in one form or another, but as to
the details and as to how it is to go band in hand with the idea of
Chieftainship, that is a matter on which the Bantu themselves will
have to inform us in the course of consultations ...
Secondly, this Parliament will have to have an executive body.
I donot know whether at this stage the Ban tu in that area will be pre
pared to accept the Cabinet system-that a Prime l\:Iinister be ap
pointed who will then himself appoint his other Ministers. As far as
the governmen t isconcerned, it is prepared to introduce the Cabinet
system in the Transkeian Parliament 2."
The Prime Minister continued by pointing out that the Bantu wo1;1Id
have to take an inèreasing part in the civil service of the self-govemmg
Transkei. In this regard he said:
1
R. of S.A.,Parl. Deb., House of Assembly, 19 Jan. to 26 Jan. 1962 (Weekly
edition), Cols. 74-75.
z Ibid.,Cols. 75-76. SOUTH WEST AFRICA
"... it is the intention to help the Transkei Government to replace
the \Vhite officials, from the lowest grades upwards, as soon as
possible, with Bantu officials who have been properly trained.
ln conjunction with the Bantu Government, the Department of
Bantu Administration and the Department of Bantu Education
will try to draw up a programme of replacement as the target to be
aimcd at ovcr the next five years. In this way increased opportunities
will be given to the Bantu in their own territory 1."
38. The report of the Committee of the Transkei Territorial Authority
to which reference bas been made above, contained a draft constitution.
This draft was accepted by the territorial authority. A Bill giving
efiect tothe proposals of the Committee was subsequently prepared and
approved by the territorial authority. The Transkei Constitution Act,
No. 48 of 1963, was passed by Parliament and assented to by the State
President on 24 May 1963 2•
The Act confers self-government on the Bantu resident in the Transkei
and on certain Bantu related to the Bantu of the Transkei. Provision is
made for a legislative assembly and a cabinet as the executive authority.
The traditionalinstitutions of government and modern western principles
of representative government have been combined in the constitution of
the Legislative Assembly, which consists of 109 members, including four
Paramount Chiefs of the Transkei and 60 Chiefs as ex officiamembers,
and 45 members elected by popular vote.
The Legislative Assembly has been granted wide powers of legislation,
including powers regarding direct taxation, Bantu education, agriculture,
the establishment, administration and control of inferior courts, the
protection of life, persons and property, land settlement, public works,
roads and bridges, localauthorities, road traffic, labour, welfare services
and civil services 3.
The executive vests in a cabinet which consists of a Chief Minister and
five othcr Ministers, all elected by the Legislative Assembly.
The Transkeian Government initially has the following departments
under its control:
the Department of Education;
the Department of Agriculture and Forestry;
the Department of Justice (with control over the lower courts; higher
courts will be controlled by the present division of the Supreme
Court for the Eastern Cape};
the Department of Finance (to be managed by the Chief Minister};
the Department of the lnterior;
the Department of Roads and \Vorks.
In December 1963 the Legislative Assembly was constituted for the
first time, after an election of its elective members, and a cabinet was
fonned under the leadership of Chief K. Matanzima, the first Chief
Minister of the self-governing Transkei.
39. The majority of Bantu have welcomed the cr~ation of the Bantu
1 R. of S.A.,Parl. Deb.,op. cit., Col. 77.
1 Act No. 48 of 1963 (S.A.), iGovernmenl Gazette,Vol. VIII, No. 516, 30 May
1963, pp. 2-48.
~ Vide ibid., Second Schedule,pp.44-48. COUNTER-MEMORIAL OF SOUTH AFRICA
authorities, and have afforded Respondent an increasing measure of co
operation in developing and extending them. Typical of the attitudes
found, is a statement made by Chief Isaac :M:atiwanein addressing a
gathering of chiefs and headmen in the Transkei. He said, inter alia:
"The institutions provided by the Government for the advance
ment of the Bantu people and to assist them to attain the standard
of living reached by the White races, should be safeguarded by the
Bantu themselves. The Government desires us to get offits back and
start to learn to walk on our own feet.
I wish you to bear in mind that I am now full-mouthed, talking
about 'Home', and what is more, I am talking about home in the
same way as an Englishman calls England 'Home'.
With a land and home thus guaranteed, our emancipation presents
no anxiety at ail about the future 1."
40. Although these systems have not been introduced in South West
Africa, a similar development, adapted to the peculiar circumstances of
the Territory, is to be expcctcd. In this regard the Prime Minister said:
"I am not discussing South West Africa now. If, however, UN
asks us to do the same for the various communities in South \Vest
that we are doing for the communities in the Republic, I shall be
only too glad. We shall be only too glad, for example, to do for the
Ovambos what we are doing for the Transkei 2."
4I. The development of Bantu political institutions was preceded by,
and combined with, considerable progress in the fields of education,
housing, welfare services and economics. In addition, political develop
ment, already attained and visualized for the future, served as a stimulus
for further expansion in the fields mentioned. Sorne examples will be
given in the succeeding paragraphs.
42. In the sphere of education, R222 million (ftn million) was spent
between 1948 and 1962. A staff of 28,000 qualified Bantu teachers are at
present engaged in the education of r.6 million Bantu pupils. On Bantu
school boards 4,000 parents and on school committees 35,000 parents
play an active part in the control of the education of their children, and
at the same time receive training in democratic practices 3•
43. Bantu are encouraged to trade in their own areas, and more than
7,000 trading licences have already been issued to them. The more than
500 Bantu authorities 4 will employ Bantu officiais only-secretaries,
treasurers, clerks, etc. The 80-odd post offices already functioning in the
Bantu areas are staffed entirely by Bantu-from the postmaster down to
the postman.
In addition, some 7,700 Bantu nurses, 14,000 Bantu policemen and
2,500 other Bantu public servants cater for the needs of the Bantu. The
Bantu nurse can advance to matron and the policeman to station com
mander. Already 40 police stations are manned entirely by Bantu.
1 The Progress ofthe Bantii People towards Nationkooà (Department of Informa
tion), p.6.
2 R. of S.A. Pari. Deb., House of Assembly, 19 Jan, to 26 Jan. 1962 (Weekly
edition), Col92.
3 Regarding the system of Bantu Community schools, vide Book VII, Chap. IV,
paras. 37-40, of this Counter-Memorial.
4 Vide para. 36, supra. SOUTH WEST AFRICA
44. As a result of spectacular success achieved with the employment
of Bantu ticket clerks at railway stations used predominantly by the
Bantu, the Railways Administration has decided to appoint more Bantu
clerks to serve their people. Bantu instructors are used in the training
of the clerks .. Commercial banks successfully employ Bantu tellers in
branches and agencies situated in Bantu areas and townships.
45. Also in other respects, Respondent's policies have brought about
tangible benefits to the Bantu population. A few examples of this should
suflice. Thus, in respect of urban housing, vast improvements have been
effected in recent years. At the end of the Second World War chaotic
conditions existed in this regard. As a result of unprecedented industrial
development during the war and post-war years, and the largely un
controlled movement of Natives to the towns, vast siums and squatter
camps were created adjacent to the industrial centres. To remedy this
situation, 133-,886homes were constructed between 1948 and 1960 at a
cost of R81,162,280 (f40,581,140) which sum was provided on a loan
basis by the Govemment. In addition, IocaI authorities obtained finances
from other sources, with the result that a total of approximately
R126 million (f63 million) was employed for this purpose. Rail and
transport services cost an additional amount of approximately
R109 million (f54,500,ooo). In building these bouses, use was made as
far as possible of Bantu artisans, and a special programme instituted to
train greater numbers of them. At the same time, vigorous sium clearance
projects were implemented.
46. In 1960 a five-year plan of development of rural housing was
initiated,in terms of which modern villages are to be built in the Native
areas. This programme calls for the construction of Sr,505 dwellings in
the years 1960 to 1965, and its execution is well under way.
47. Bantu health services cost the Govemment, Provincial Administra
tions and Municipalities approximately R40 million (fzo million) per
year. Sorne 72,000 beds are available for the Bantu in South African
hospitals. These include Baragwanath hospital, for non-White patients
only, mainly Bantu, near Johannesburg, which is the biggest hospital
on the African Continent, with 46 wards, 10 surgical theatres, and 2,500
beds. It annually treats nearly 600,000 out-patients, and the r82 full-time
doctors in its employ, half of whom are specialists, include r6 Bantu
doctors.
48. In 1948 approximately 10,000 morgen of land 1 in the Native
areas were under irrigation. By 1960 this had increased to 15,267 morgen.
In that year, a five-year scheme was initiated to bring a further 14,911
morgen under irrigation. A scheme of this sort necessarily takes some
time to produce results, but nevertheless an additional 2,252 morgen
were already under irrigation by the end of 1962.
49. In addition to the specific topics mentioned in the previous para
graphs, development of the Bantu homelands has proceeded in ail its
aspects, with more and more active co-operation from the Bantu them
selves-a matter towards which efforts have continually been directed,
particularly through the system of Bantu authorities. Thus ambitious
programmes have been commenced, dealing with a variety of subjects
1 Approximately 8,569 hectares (1 hectare1. 167 morgen). COUNTER-MEMORIAL OF SOUTH AFRICA
such as afforestation, fencing, roads, bridges, dams, boreholes, home
industries, crop and stock improvement, social services, etc.
50. In the preceding brief summary, Respondent has given some
indkation of measures which have been taken in the Republic of South
Africa. The success achieved with them hassuggested thatfuturedevelop
ments in South West Africa should take a similar course, although the
unique nature of local conditions would naturally require differences in
the methods and tempo of application. It isparticularly inthis respect that
1
the enquiry by the Commission referred to above and programmes
which may follow upon its recommendations, are designed to play an
important and constructive role in the next phase of development.
SI. Respondent is fully aware of the existence of a vast amount of
adverse criticism, hostile comment, vilification and abuse directed at
its poliey of separate development. Much thereof has arisen from wrong or
inadequate factual information or assumptions, misrepresentation,
partisan political motivation and the like. In particular, Respondcnt's
policies have often been assumed or misrepresented to be founded on the
concept of White supremacy, or to be directed at the oppression of the
non-Europeans, and condemned on that basis. So, for instance, Mr. R. J.
Stratford, a former member of the South African Parliament (inwhat is
now the main Opposition party) who has been living in Europe for the
past ten years, is reported to have said on a recent visit to South Africa:
"Most people overseas were still under the impression that the
policy of separate development was aimed at keeping the Bantu
down. They did not realise that the policy was aimed at uplifting
2
them ."
Direct instances of this particular fallacy are legion, and some examples
should suffice. fndeed, this attitude appears from the 1960 Report of the
Committee on South West Africa, which referred to "the policy of apart
heid based on the concept of 'White supremacy' over ail other races" 3•
In 1962 the deiegate of Ghana told the General Assembly of the
United Nations that:
"... the pernicious system of apartheid continues to be applied,
resulting not only in segregation, discrimination and deprivation of
basic human rights but also in the complete subordination, to those
of a small minority of Europeans, of the interests of the indigenous
people who are treated in their own country as outcasts, a source of
cheap labour and denied even the solace of education 4".
A Liberian delegate, in addressing a Corrimittee of the United Nations
in 1961 said: "What exactly was 'apartheid'? A doctrine of racial
superiority, which held that the Africans were mentally infcrior to the
5
whites ." As a further example, reference may be made to a state
ment by the Sudanese delegate in the General Assembly of the United
Nations in 1962. He is recorded to have referred to-
"... the question of the race conflict in the Republic ofSouth Africa
2 Vide para. 35, supra.
3 I,p.P83.qria News, 16 Dec. 1963, p. z.
4 U.N. Doc. A/PV. 1143, pp. 64-65.
' G.A .,0.R., Sixteenlh Sess., Spec. Pol. Comm., 272nd Meeting, 30 Oct. 196r, p. 61. SOUTH WEST AFRICA
arising from the policies of apartheid practised by the Government
of that country ... the continuance of .this obsolete myth of racial
superiority 1".
52. ln addition to the alrnost automatic condemnation of Respondent's
policies based on misapprehensions or misrepresentations of their true
nature and purpose, some portion of the total volume of criticism-how
much is difficult to say-may well be the product of constructive re
flection upon a basis of substantially correct factual information. Where
a diflicult problem exists, differences of opinion about a solution are to be
expectcd, in accordance with the weight which different observers may
attach to various aspects of the situation.
In this regard it is, however, of importance to note that an increasing
number of impartial observers who have studied or considered the
problems involved, have corne to appreciate the positive aspects of Re
spondent's policy, its true aims and the basic reasons underlying it. The
reaction of such observers has been either to approve of Respondent's
approach, or alternatively to urge that time be given to enable Re
spondent to prove its bona fides and/or the practicability of its policies.
Examplcs of this are given in the next succeeding paragraphs.
53. Sir Carl Berendsen, former New Zealand Ambassador and delegate
to the United Nations, said at Dunedin, after a two months' tour of
Africa:
"Until I have found an alternative policy which would do greater
justice to all concerned-and I cannot-I do not propose to criticise
South Africa's policy ."
s+ Clarence B. Randall, fonnerly president of Inland Steel, Chicago,
and economic adviser to President Kennedy, wrote in an article entitled
"South Africa Needs Time", published in the Atlantic Monthly of May
1963:
"Apartheid is conceived of by the government of South Africa as
a 'separate and parallel' development, and to implement it the
government is creating Bantu statcs or provinces, wherecompleteself
government will benotonly permitted but encouraged, aftera periodof
transition. The ultimate objective will be a dual commonwealth in
which the Bantustans will be constituent units ...
Self-government is to be developed on the basis of tribal traditions,
the objective being full democracy. but in the form most readily
assimilated by the African ... Next year general elections will be
held, a Bantu. Parliament chosen, and a Bantu Prime Minister
placed in power.
Time will be required for this transition, and it is my firm opinion
that the republic is entitled to a fair trial period within which to
prove its good faith before it is condemned by outside opinion. If the
world wants another Congo, the fastest way to get it is to move in
explosively and block an orderly turnover ...
The white people of South Africa are charged with a great re
sponsibility toward the black people, and thcy know it ... • "
1 U.N. Doc. NPV. u36, p. 8.
2 The Evening Post (New Zealand), 4 Dec. 1962.
3 Randall, C. B.,"South Africa.Needs Time", in The Atlantic Monthly. May 1963,
p. 80. COUNTER-MEMORIAL OF SOUTH AFRICA
55. Writing about partition in a recent series of articles after an ex
tensive tour in Southern Africa, Smith Hempstone, a well-known Ameri
can author and joumalist, said:
"It might not work in South Africa. On the other bandit might.
This is the principal fact: no other solution even remotely fair to
white or black appears possible 1."
56. Senator Allan Ellender, member of the United States of America
Senate Appropriations Committee, while on a tour of ail United States
Foreign Service Posts in Africa, said in Durban, South Africa:
"Notwithstanding my Govemment's views on the matter, I
personally have the greatest sympathy with your problems. I think
your Government is on the right track and I am convinced the time
willcorne when my Government will have to change üs vfow about
your policy i."
ln his subsequent report to the Senate Committee he stated:
"The policy of apartheid, or separate development, is very nearly
the only method which promises to solve the many problems facing
the Republic. lnstead of developing their state along multiracial
Jines, which could not lead to anything except native political
dominance, the South African leaders have chosen the only possible
policy-the political separation of the races. If the policy is carried
out without prejudice and objectively it should be acceptable to the
world, and entirely fair to the native population.
The principle of separate development has long been recognized
the world over as a means of avoiding friction between two different
races of peoples who have been thrown together because of geo
graphic accident 3."
57. Writing to the London Daily Telegraph, Leslie Beilby said:
"Whatever the position may have been in the past, the whites of
South Africa no longer have to be bludgeoned into realising the need
for African political advancement. The majority, and I would
include Dr. Verwoerd among them, accept this. What they do
require is a way of giving the Africans political rights which will not
endanger their own security ...
There are only three courses open to the Country: To have 'one
man-one-vote' immediately. To allow the Africans to take a gradu
ally increasing role in govemment. To have some form of partition
which will result in a majority of whites in one sector and a majority
of Africans in the other.
The first course would be catastrophic, resulting in something far
worse than the Congo and bringing misery to Africans as well as
Europeans. As a peaceful solution it is out of the question.
The second course is admirable except that no one has been able to
convince South Africans, by word or by deed, that it will work
satisfactorily. Most of the whites consider that it will lead inevi
tably, and rapidly to black domination, ...
The third course opento South Africa-that ofpartition-is pursued
-----
1 Hempstone, S., "Partition-A Solution for South Africa", in Chicago Daily
~~9~I~. .
z The Star,28 Nov. 1962.
3 Ellender, A. ]., A Repo,-ton United States Fonign Ope,-ationsin A/Yica121, SOUTH WEST AFRICA
by the Government on the grounds that it will remove the fear of
domination. For a long time the Government was thought to be
bluffing to gain time and maintain white control but, whatever the
original intention, Dr. Venvoerd now appears determined to try to
<lividethe country. Whether he can doit is arguable 1."
58. Mr. C. G. Brandt, Chief Editor of The Netherlands daily paper,
De Telegraaf, is reported to have said:
"I have spoken to many people black and white (on the subject of
Apartheid), and none has been able to produce an alternative
solution well thought out in ail its consequences.
I consider it a sound and logical system which might result in a satis
factory solution of the whole problem ... 2.''
59. The Vice-President of the French National Assembly, M. Ray
mond Schmittlain, said he was certain the Government's Transkei policy
would succeed and he thought that is was correct 3•
60. M. Paul Giniewski (French joumalist and author of, inter ah"a,
"Bantustans-a trek towards the Future") was quoted in the Territorial
News of 30 August 1962, as having said that whereas he had doubts two
years before about the ultimate aims of the Govemrnent as regards the
Transkei, his second visit gave him the answer: "Bantu States are going
to be." He added that: "Political independcnce would have to be geared
to economic interdependence." ,
61. In a work published in July 1962, Sir Penderel Moon, an ex
perienced British colonial administrator, who was also an adviser to the
Government of lndia from 1948 to 1961, inter alia, said the following:
"To understand South Africa's problems, these are the basic
facts which have to be kept in mind. It is recognised now by rnost
South Africans that the present system of complete White political
dominance cannot continue indefi.nitely and that opportunities for
political self-expression must be made available to other racial
groups; further that this will have to be clone far more rapidly than
was envisaged ten to fi.fteen years ago. But if parliamentary demo
cracy of the ordinary pattern were to be introduced, the whites
would be overwhelmed by the superior number of Black voters
and would soon become an impotent minority in a Black State. They
would thus surrender not only their dominance over others but their
own right of self-determination which they necessarily and justly
daim.
This the vast majority of the \Vhites are not at present prepared to
do.... Apartheid is the logical culmination of a policy deriving frorn
the nineteenth century and followed consistently-but not very
energetically as there seerned to be no hurry-by Botha, Hertzog and
Smuts. Its logical conclusion will be the formation of Ban tu States
(Bantustans). Whether they would be completely independent, or
become units in a federation, or remain subordinate in some respects
to the Republic, are problems for the future. Up till three years ago,
maintenance of White political supremacy was certainly contem-
iThe Daily Telegraph, 20 Aug. 1963.
2The Star, 23 Feb. 1963.
3The Natal Mercury, 14 Mar. 1963. COUNTER-MEMORIAL OF SOUTH AFRICA
plated 1•But since then Dr. Verwoerd has publicly conceded that
they can become, if they show the desire and ability, 'as free as
Ghana is today'. But the intention and hope is that theywill remain
linked with the Republic by political and economic ties. It is
difficult to see how anyone could object in principle to such a policy,
ifit is honestly and fairly carried out ... ln our own day, Ireland,
Palestine and India-to mention only three of the more promjnent
examples-have all been partitioned, and all basically for the same
reason, namely that one race or self-conscious group refused to be
subjected to the dominance of another. There is no apparent reason
why in the case of South Africa such a possible outcome should be
regarded as damning a whole policy 2."
6z. It is instructive to note, by way of contrast with the above, certain
views expressed in r956 by Lord Hailey. He said:
"From time to time Europeans who have settled in other terri
tories have shown an inclination to look to South Africa for coun
tenance in their effort to main tain policies based on separatist ideas,
while to those who look forward to a greater measure of integration,
the regime of the Union has become a natural target for attack. But
there is here sornething more than a contrast of philosophies. Both
sides realize that the essence of the matter lies in the fact that the
dodrine of apartheid implies that the EitroPean community must
continue to hold a position of control over the non-European communi
ties. lt is actually on this basic issue, and not because of any argu
ment about the maintenance of a European pattern of civilization,
that the two schools of thought tend to range themselves so decisively in
3
opposite camps ." (ltalics added.)
Lord Hailey's view "that the doctrine of apartheid implies that the
European community must continue to hold a position of control over
the non-European communities" was based on, or must at least have
been influenced by, a consideration referred to by him in a Iater passage,
namely that-
"It is true that the sponsors of the doctrine of apartheid have
held out to Africans the prospect of a future in which they may in
their own sphere of action live under a regime of institutions inspired
by Bantu tradition. Bid there kas been no ptedge that this will secure
for the Bantu any measure of po!itical autonomy, whole or partial, in
any defined area of the Union 4." (Italics added.)
As has been.demonstrated, the views expressed by Lord Hailey did
not, even in 1956, correctly reflect Respondent's policies 5•At present,
however, whatever basis for misunderstanding there may have been in
that regard, has been removed. Not only has a "pledge" of political
autonomy been given, but the Transkei has already, with active as
sfatance and encouragement from the South African Govemment,
proceeded a considerable distance towards_ "political autonomy ... in
1 This impression on the author's part,though understandable, isnot entirely
correct in the unqualifiedform in which it is put:vide paras. 14-17,supra.
2 Moon, P., World Opinion and South Africa {1962), pp. 7-10.
3 Lord Hailey, An African Survey: Revised 1956, p. 169.
• Ibid., p. 254.
' Vide paras. 13 to 17,supra. SOUTH WEST AFRICA
[a] defined area" of South Africa. In these circumstances itis clear that
the factor which Lord Hailey regarded as the "basic issue" between
supporters and opponents of Respondent's policies (i.e., the implications
which he saw in Respondent's policy, that control by Europeans over
non-Europeans would continue) has now fallen away. Consequently the
basic issue at present relates not to the question whether political
autonomy is to be granted to the Bantu, but to which method would be
the most appropriate one for achieving this purpose. And it is the reali
zation of this feature which bas increasingly influenced commentators to
express views such as those set out in paragraphs 53 to 6I above.
63. Respondent must stress again that evaluation of policies applied
in the Republic of South Africa is per se not an issue in this case, and
that a systematic and detailed discussion of such policies and their
applications bas thercforc deliberately been avoided. What is important,
howcver, in view of the nature of the accusations brought by the Ap
plicants, is the question of basic aims and ultimate objectives, and of
methods best suited towards their achievement.
It is in the light of the indications afforded by the various matters
dealt with in the above four Chapters regarding Respondent's policies
to be further particularized in succeeding parts which deal with specific
topics-that Applicants' charges of mala fides on Respondent's part
relative to policies applied in South West Africa are submittcd to be
devoid of foundation or substance. Annexes to Book IV of the Counter-Memorial filed by the Government
of the Republic of South Africa
Annex A
BRIEF FACTUAL AccouNT OF THE CONSTITUTIONAL ARRANGEMENTS IN
AFRICAN COUNTRIES SOUTH OF THE SAHARA, PRIOR TO THE ÜUTBREAK OF
THE SECOND WoRLD \VAR, SHOWING THE DEGREE TO WHlCH THE IN
DIGENOUS INHABITANTS PARTICIPATED OR WERE REPRESENTED IN
THE LEGISI.ATIVE AND EXECUTIVE PROCESSES OF GovERNMENT
I. BRITISH CONTROLLED TERRITORIES IN CENTRAL AND
SOUTHERN AFRICA
Southern Rhodesia
1. In 1898, shortly after the territory of Southern Rhodesia had been
brought under British Administration by the British South Africa
Company in pursuance of a Royal Charter, a Legislative Council was
established for the territory 1.It consisted originally of nine members, of
whom five were nominated by the British South Africa Company and
2
four were elected by the registered voters of the territory .Thereafter the
composition of the Council was altered from time to time. Thus, as from
1920 it consistcd of l3 clected members and six nominatcd members 3•
Control over Native Affairs was expressly reservcd to the British Govern
ment ~.
2. In terms of the qualifications of voters laid down in 1898, the
franchise was extended to all adult male British subjects regardless of
race, but subject to certain property, income and educational qualifica
tions 5•Although the Native population in 1901 was estimated at 500,000
as against II,070 Em:opeans 6,the effect of the franchise qualifications
was to exclude an but a few dozen Natives from the voters' roll 7.
3. In 1923 Southern Rhodesia was formally annexed to the British
Crown, and given self-government in a new constitution which came
into force in r924 3• The Executive was made responsible to the Legis
lature 9,which consisted of a fully elected legislative assembly of 30
1 The S01,thern Rhodesian Order in Coimcil, I898, in The Statute Law of Southern
Rhodesia (from the Charter to Dec. 1898), pp. 32-55.
z Ibid., secs. 17 and 18p.38.
3 Official Year Book o/ South~rn Rhodesia, No. 4 (z952j, p. 41.
• Lord Hailey, An African Survey (1938),p. 158.
~ Proc. No. 17 of 1898 (Southern Rhodesia), secs. 3-5, in The StatuteLaw of
Southern Rhodesia (from the Charter to Dec. 1898) pp. 158-159.
6 Official Year Book of Southern Rhodesia, No. 4 (1952), p. 130.
1 Franck, T. M., Race and Nationalism: The Struggle for Power in Rhodesia
Nyasaland (1960),p. 17.
B Cmnd. 5949, p. rz.
9 Southern Rhodesia Constitution Le/ters Patent, I9z3, sec. 37, in Statutory
Rules and Orders and Statulory Instruments Revised (1948) (hereinafter referred to
as S.R. b O. Revised (1948), Vol.XXI, p. 379.490 SOUTH WEST AFRICA
1
members . A few subjects were excluded from the competence of the
new legislature, and these included Native affairs 2•The Govemor was
charged with the protection of Native interests; he had to reserve for the
pleasure of the British Secretary of State for the Colonies, inter alia, any
laws which were discriminatory as regards the Natives, "save in respect
3
of the supply of arms, ammunition or liquor to the natives" •Except for
some amendments of minor importance in 1937, the constitution of
Southern Rhodesia remained virtually unchanged until the establishment
of the Federation of Rhodesia and Nyasaland after the Second World
\Var.
4. The franchise for the election of members of the legislative assembly
was open to ail British subjects, male and female, including Natives, but
it was still subject to property and income qualifications 4which resulted
in very few Natives in fact coming onto the voters' roll. It was said that
only 58 Natives were on the roll in 1933 5, when the Native population
was estimated at 1,130,000 as against 52,210 Europeans 6 •In 1939 the
population consisted of approximately r,374,000 Natives, 64,000 Euro
peans, 3,640 Coloureds and 2,410 Asiatics 6, but in that year there were
7
only 39 Natives on the voters' roll, out of a total of 24,626 voters • Ail
members of the Legislative Assembly and the Executive were Europeans.
N orthernRhodesia
5. Prior to r9rr, and after the British South Africa Company had
extended its rule to the Territory of Northern Rhodesia, mostly through
treaties, the Territory was organized by means of a series of British
Executive Orders in Council into two Protectorates, being Barotseland
(North-western Rhodesia} and North-eastern Rhodesia. An Order in
Council of r9rr joined the two regions into the Protectorate of Northern
Rhodesia 8, and provided for a Council to advise the Protectorate
Administrator 9•The Council, which was first appointed in 1917, consisted
of six members, three being Company officiais ex officio,and three ap
pointed by the Company from the European settled population. In r923
the Company's administrative authority was transferred to the British
Crown 10,and in the following year a Legislative Council wasestablished 11,
consisting of the Govemor, five ex offecio members, not more than four
• S.R. cSO. Revised (r948), Vol. XXI, sec. 3, p. 372.
2
Ibid.,secs. 26 (2) and 39-47, pp. 377, 380-382.
3 Ibid., sec. 28 (a), p. 377.
• Voters Qualifications and Registrations Amendmmt Ordinance I9Ilil,sec. 2, in
The Statute Law of Southern Rhodesia /rom ISI January I9II loJISI Decembe1' I922,
pp. 225-227.
' Hailey, An African Survey (1938) pp. 159-160.
6 Official Year Book of Southern Rhodesia No. 4 (1952), p. 130.
7 Cmnd. 5949, p. 15.
8 Northern Rhodesia Order in Council, r9II, in British and Foreign State Papers
(series hereinafterreferred to as "State Papers"), Vol. CVI, pp. 463-476.
9 Ibid.,sec. 13, pp. 466-467.
'° Cmnd. 5949, p. 13.
11 The Northern Rhodesia (Legislative Council) Order in Council, x9z4, in State
Papers, Vol. CXIX, pp. 36-41. COUNTER-MEMORIAL OF SOUTH AFRICA 491
nominated official members, and fi.ve elected unofficial members 1•
An Executive Council was also established to advise the Governor 2.
Although provision was made for the appointment of unofficial members
to the Executive Council, no such appointments were in fact made up to
1938 3. As from that year the Legislative Council consisted of the Gover
nor, five ex otficio mernbers, three nominated official members, one
(European) nominated unofficial representative for Africans and seven
elected members \
6. Up to the outbreak of the Second World War the Natives did not
participate directly in the Government of Northern Rhodesia, their inter
ests being represented at that time by the single European unofficial
member of the Legislative Council nominated for that purpose, and
referred to above •. It is estimated that in 1934 5 there were r,366,425
Natives, u,464 Europeans and 188 Asiatics in theTerritory6. The Native
inhabitants were regarded as British protected persons and notas British
7
subjects , and were therefore primarily excluded from the franchise 8,
which was limited to British subjects 9• Natives could become British
subjects by naturalization and thus acquire the franchise, provided they
could cornply with the prescribed property and income qualifications 10;
but few ever availed themselves of this opportunity 11•Again, therefore,
the membership of the Legislative and Executive Councils was entirely
European.
7. In Barotseland, as a result of an agreement in 1936 between the
Paramount Chief and the Protectorate Government 12,the Governor was
empowered 13 to recognize Native Authorities which exercised jurisdiction
within certain prescribed limits and which were empowered to issue
orders and makerules on certain specifi.edsubjects of minor importance 14.
However, the Govemor could, after consultation with the Paramount
15
Chief, revoke or alter any such order or rule •
1 The Northern Rhodesia (Legislative Council) Order, op. cit., sec. 3,p. 37.
2 The Northern Rhodesia Order in Council, r924, sec. 12, in Stale Papers, Vol.
CXIX, p. 45.
3 Hailey, An Af,-ican Survey (1938). p. 170.
• The Northern Rhodesia (LegislaJive Council) A mend=nt Order in Council, r938,
sec. 3, inState Papers. Vol. CXLII, p. 40.
5 No figures are available after that date, until 1944.
6 Kuczynski, R. R., Demographic Survey of the British Colonial Empire (1959),
Vol. II, p. 416.
7Cmnd. 5949, p. 19,
8 Ibid.See also Hailey, An A/rican Survey (1938), p. 170 and Hailey, An Ajrican
Survey: Revised 1956 (1957), pp. 290-291.
9
The Legislative Council Ordinance, z925, sec. 9, as quoted in The Constitutions
of AU Count,-ies, Vol. I, pp. 532-533.
10 Ibid.,secs. 9 and ID, pp. 532-534.
u Hailey, An Ajrican Survey (1957), p. 291.
12 Hailey, Native Administration, Part II (1950), p. 89.
13 Barotse Native Authority Ordinance, in Laws of Northern Rhodesia, r963
Edition, Vol. V, Chap. r59, pp. 2-13.
14
15 Ibid.,secs. 3, 8 and 19 (1).
Ibid.,secs. 11 (1) and (2) and 19 (5).492 SOUTH WEST AFRICA
Nyasaland
8. In 1902 a Commissioner was appointed to administer the Territory
of Nyasaland on behalf of Great Britain . In 1907 he was replaced by a
Governor and Commander-in-Chief and at the same time Executive and
Legislative Councils were instituted 2. The Executive Council consisted of
the Governor and nominated oflicials 3• The Legislative Council consisted
of the Governor, three ex officia official members, and such unofficial
members as the Governor might from time to time appoint 4.In 1937 the
rnernbers of the Legislabve Council were the Governor, four official
members and four unofficial members, all being Europeans. The Senior
Provincial Commissioner and one of the unofficial mcmbers, a European
selected from one of the missionary societies, were the chief representa
tives of Native interests on the Council 5• As at 1937, there were 1,635,804
Natives, r,894 Europeans and 1,631 Asians in Nyasaland 6•
Swaziland
9. Conventions of 1881 and 1884 between the United Kingdom and
the South African Republic guaranteed the independence of Swaziland 7•
As a result, however, of numcrous concessions being granted by the King
of the Swazis, some form of European contrai came to be considcred
necessary 8• After a provisional arrangement which operated from 1890
to 1894, a further Convention provided for the exercîse of powers of
protection and administration, without annexation, by the South African
Republic 8. This endured until the Anglo-Boer \Var (1899-1902), which
resulted in the annexation of the South African Republic (Transvaal) by
Great Britain and in Swaziland becoming a British Protectorate. In 1903
the Governor of the Transvaal was empowered to administer Swaziland 9,
10
with authority to legislate by proclamation • His authority was trans
ferred in 1906 to the British High Commissioner for South Africa 11,
and in 1907 provision was made for the appointment of a Resident
Commissioner, a Govemment Secretary and Assistant Commissioncrs 12.
ro. In r92r an Advisory Board consisting of nine European members
elected by the European residcnts was instituted adrninfatratively, to
advise the Resident Commissioner in regard to affairs affecting the
1 The British Central Africa Order in Council, I902, inState Papers, Vol. XCV, pp.
646-656.
2 The Nyasaland Order in Council, r907, in State Papers, Vol. C, pp. 94-99.
' Ibid., sec.8, p. 96.
• Royal Instructions, r907, in The Constitutions of Ail Countries, Vol. I, pp.
537-538.
5 Colonial Reports, Nyasaland, r937, No. 1885, p. 5.
6 Ibid.,p. 6.
7 Colonial Reports, Swaziland, 1938, No. 1921, p. 3. Vide also Lord Hailey, Native
Administration in British African Territories, Part V (1953), pp. 361-369.
8 Colonial Reports, Swaziland, 1938, No. 192I, p. 3.
9 The Swaziland Order in Council, r903, inState Papers, Vol. XCVI, pp. II26-I 129.
10
Ibid.,sec. 5.
11 Ibid., r906, sec. 2, in State Papers, Vol. XCIX, pp. 863-864.
12 Colonial Reports, Swaziland, 1938, No. 1921, p. 4. COUNTER-MEMORIAL OF SOUTH AFRICA
493
European residents 1. ln regard to Native affairs, an Ortler in Council
of 1903 required the Governor, in issuing proclamations, to respect
Native civil laws, except in so far as "incompatible with the due exercise
of His Majesty's power and jurisdiction, or clearly injurious to the welfare
2
of the said natives" • Furthennore, in all matters affecting Native
interests, the central administration usually consuited the Paramount
Chief, together with one or other of the two traditional Native bodies,
viz., the inner council (Liqoqo), or the "national" council (Libandhla),
which consistcd of all Chiefs, councillors, headmen and all adult males
who cared to attend 3 •This consultation was purely a matter of practice;
·the Native bodies themselves did not receive any statutory recognition
until after the outbreak of the Second World War 4•Up to that time,
therefore, the Natives in Swaziland, who in 1936 had numbered 153,270
out of the Tcrritory's total population of 156,715 5, had had no direct
participation in the central government of the Territory.
Basutoland
IL ln 1884 the British Government appointed the High Commissioner
for South Africa to exercise all_legislative and executive authority in
respect of Basutoland 6• ln 1890 official recognition was given to the
traditional Basuto Council (the Pitso), but purely as a consultative
body with no legislative or exccutive responsibility 7• The Council at
first consisted of 40 members selected by the Paramount Chief and
approved of by the Rcsident Commissioner, who was also empowered to
appoint five additional members 7• Membership was increased in 1903
to roo, of whom five were nominated by the Resjdent Commissioner and
the rest by the Paramount Chief, subject to the Commissioner's ap
proval 8• The Council received statutory recognition in 19ro 9, but
remained a purely advisory body throughout the period under considera
10
tion • Towards the end of this period there were approxîrnately 559,273
Natives, 1,434 Europeans and t,604 Coloureds and Asiatics in the
Territory 11•A system of "indirect rule" was introduced in 1938, but only
implemented after the outbreak of the Second World War 12.
Bechuanaland
12. The population figures for Bechuanaland in r936 were 260,064
Natives, r,899 Europeans, and 3,793 Coloureds 13•
1
Hailey, Native Administration, Part V, pp. 377-378 and Colonial Reports,
Swaziland, 1938, No. 1921, p. 4. ,
2 The Swaziland Order in Cou,icil, r903, sec. 5, Stale Papers, Vol. XCVI, p. u28.
3 Hailey, Native Administration, Part V, p. 357.
4 Ibid., p. 388.
' Colonial Reports, Swaziland, No. 192:r,p. 5.
6 Basutoland Order in Councit, r884, in S.R. & O., Rcvised (1948). Vol. III,
pp7 79-80.
Basutoland Council, Report on ConstitutionaJ Reform and Chieftaiaship A-fjairs,
Basutoland Constitutional Handbook, p. -zS.
8 Ibid.,p. 30.
9 Ibid.,p. 31.
10 [bid.,pp. 3r-32.
11 Kuczynski, op. cit.Vol. Ir, p. 23.
u Basutoland Council, op. cit.. pp.38-42.
3
' Official Year Book of the Union of South Africa and of Basutoland, The Bechuana
land Protecto,ate, and Swaziland, No. 22 (1941), p. II93-494 SOUTH WEST AFRICA
13. By 1890 British jurisdiction had been established over the terri
tory 1,and in 189r provision was made for its administration through
the British High Commissioner for South Africa 2• ln issuing procla
mations for the Territory, the High Commissioner was bound to respect
Native civil laws and customs, "except so far as the same may be in
compatible with the due exercise of Her Majesty's power and juris
3
diction" •
14- In 1920 two Advisory Councils were established by means of
administrative orders 4. Firstly, there was a European Advisory Council,
consisting originally of six members elected in six electoral areas, the
membership being increased to seven in 1927 5• The fonction of the
Council was to advise the Resident Commissioner on matters directly
affecting the European residents of the Territory, and the franchise was
confined to British subjects of European descent and aliens of European
parentage who had resided in the Territory for at least five years 5•
This Council only received statutory recognition after the Second World
5
War • Secondly, there was a Native Advisory Council, consisting of a
maximum of 30 members, five being nominated by each of the six tribes in
the Territory, "according to their custom" 6. In practice the members
were headmen, or, in a few instances, persons of standing described
as Councillors 6• The fonction of this Council was "to discuss with the
Resident Commissioner ail matters affecting Native interests which
the members desired to bring forward, especially the administration of the
Native Fund" 7•During the period under consideration, therefore, the
Natives of Bechuanaland had no direct participation in the central
government of the Territory.
II. BRITISH CONTROLLED TERRITORIES IN EAST AFRICA
Kenya
15. The population of Kenya was estimated to be 3,365,888 in 1938,
of which 3,280,774 were Natives, thus leaving a balance of some 85,000
Europeans, Asians and others 8•
16. In 1895 the responsibilities of the Imperial British East Africa
Company in the Territory of Kenya, where it had assumed control in
terms of a Royal Charter, were transferred to the British Govemment 9•
Kenya was then known as the British East Africa Protectorate, and
became the "Kenya Colony. and Protectorate" in 1920 1. In 1906 a
Legislative Council, consisting of six official members and two nominated
1 British Order in Council, r890, in State Papers, Vol. LXXXII, pp. 1061-1062.
2
Ibid., r89r.in State Papers, Vol. LXXXIII. pp. 809-812.
3 Ibid.,sec. 4, p. 810.
• Hailey. Native Administration, Part V (1953), pp. 318-320.
~ Ibid., p. 319.
6 Ibid.,p.318.
1 Ibid.,p. 138. The Native Fund was derived from the proceeds of a local tax,
and earmarl<ed for local development.
8 Colonial Reports, Kenya Colony and Proteclorate, 1938, No. 1920. p. 10.
9
10Central Office of Information, Kenya, Pamphlet No. R4489 (1960), pp. 2-3.
The Kenya (Annexation)Order in Council, r920, inState Papers. Vol. CXIII,
pp. 74-76. COUNTER-MEMORIAL OF SOUTH AFlUCA 495
unofficial members {Europeans), was established for the Territory1.
Thereafter the membership of the Council was increased from time to
titne 1. Unofficial European members were elected to the Council for the
first time in 1920, when there were II such seats . The franchise was
2
confined to British subjects of European descent •At the same time the
official membership was also increased to preserve the official majority.
One Europea.i1member was nominated by the Governor to represent the ,
Native community 3• In 1924 provision was made for the election of 17
members, viz., II Europeans, five Indians to represent the interests of the
Jndian community and one Arab to represent the interests of the Arab
community 4•
17. As from 1925 the supreme executive power in the Territory was
vested in the Governor, who was advised by an Executive Council of
seven ex offecio members and such other official and unofficial members
as might be appointed 5•
The membership of the Legislative Council was again increased in
1927 6• It then consisted of the Governor, II ex officia members, nine
nominated official members, rI European elected members, live Indian
elected members, one Arab elected member, and one (Europea.I1)nomi
nated unofficial member to represent the interests of the African com
munity 7• In 1938 a second unofficial member, also European, was
nominated to represent African lnterests, and the official representation
further increased to preserve the official majority 8•
Uganda
18. In 1938 it was estimated that there were 3,725,798 Natives in
Uganda, as against 2,282 Europeans and 19,141 Asians 9•
10
19. Uganda became a British Protectorate in 1902 . It was adminis
tered by a Commissioner until 1907, and thereafter by a Governor.
Executive and Legislative Councils were first established in 1921 11•The
Executive Council consisted entirely of exo{ficio and officialmembers, and
remained so constituted until after the Second \Vorld War 12•The Legis
Iative Council at first consisted of four officialmembers and two unofficial
appointed members but by 1938 these members had been increased to
seven and four respectively 13• The Indian community was offered one
1 Central Office of Information, op. cit., p. 17.
2
Hailey, An African Survey (1957), p. 296.
3Colonial Reports, Kenya Colony and Protectorats, 1931, No. 16o6, p. 5.
~ Legislative Council (Amendment) Ordinance, I9z4, in Golony and Protectorate of
Kenya, Ordinances I9Z4, Vol. III, pp. 1-2.
5 Additional Royal Instructions, G.N. No. 61, in Colony and Proteclof'a/eof Kanya,
Proclamations, Rules and Regulations, Vol. V, pp. 32-35.
6 Additional Royal Instructions, G.N. No. 248, in Colony and Pf'otectorateof Kenya,
Procl,1mations, Rules and Regulations, Vol. VI (New Series), pp. 524-528.
7!Md .. p. 526. .
8 Central Office of Information, Kenya, Pamphlet No. 14489 (1960), p. 17.
10Kuczynski, op. cil., Vol. II, pp. 239 and 251.
The Uganda Ordar in Council, I902, in State Papers. Vol. XCV, pp. 636-646.
11 Ibid.,I920, in Slate Papef's, Vol. CXXIII, Part I, pp. 105-u1.
12Central Office of Information, Uganda, Pamphlet R5316 (1962), p. 4.
13Central Office of Information, Constitutional Development in the Câmnwnwealth,
Part II, British Dependencias (1950), p. 22. SOUTH WEST AFRICA
representative on the Council in 1921, but initially declined to co-operate
1
in nomination . However, one Asian was appointed to the Council in
1926, and a second ·as from 1933 2• AU the other members were Euro
peans.
20. Here also indirect rule was systematically practised in Native
administration, the system being differentiated in order to fit in with the
: differing traditional systems, viz., centralized kingdoms in Buganda,
Bunyoro, Toro and Ankole, and decentralized organizations based on
small villages and clans in other provinces 3•
Tanganyika
21. Tanganyika, which formed the major portion of the former
German East African Protectorate, was after the First ,vorld War
administered by Great Britain under a mandate. lts population in 1938
was estimated at 5,260,484, of which 5,217,345 were Natives, 9,165
4
Europeans and 33,974 Asiatics •
22. In terms of a British Ortler in Council of 1920 s, Tanganyika was
to be administered by a Govemor assisted by an Executive Council
composed of four officials 6,the number being increased to six in 1926 7•
In the same year a Legislative Council was constituted, consisting of the
Govemor, 13 official mcmbers and not more than ten unofficial members 8•
These members were ail appointed by the Govemor and during the whole
of the periocl under consideration the legislature containecl no elective
element.
23. With regard to the unofficial members of the Legislative Council,
the British Govemment in 1926 reported to the League of Nations as
follows:
"The unofficial members are nominated by the Governor without
regard to representation of particular races, interests, or public
bodies ... There is at present no native member of the Council. In
this connection the Govemor at the opening meeting of the Legis
lative Council on the 7th December, 1926, stated as follows:
'The native community cannot be directly represented because
for the present a native cannot be found v.ith sufficient commancl of
the English Ianguage to take part in the debates of the Council;
indeed to understand what is said. J speak now, of course, of natives
of standing who·could speak on behalf of the various tribes of the
country. But I do not by any means regard the large body of natives
as being altogether unrepresented on the Council. Their interests
are directly in the bands of the Secretary for Native Affairs, the
Chief Secretary, and the Governor himself' 7."
1
Apter. D. E., The Polilical Kingdom in Uganda (1961), pp. 163-164.
z Central Office of Information, Uganda, Pamphlet No. R5316, p. 4.
3 Hailey, Native Administration, Part I, pp. 49-50; Colonial Repo:rts, Uganda
ProtectOYate,r931, pp. 5-6.
4 Kuczynski, op. cil., Vol. II (1949). pp. 343 and 353.
5 The Tanganyika Order in Council, r9zo, in State Papers, Vol.CXIII, pp. 97-11 I.
6 Report by His Britannic Mafesty's Government to the Council of the League of
Nations on the Administration of Tanganyika Te"itory forthe Year r924, p. 5.
7 Report by His Britannic Majesty's Government to the Council of the League of
Nations on the Administration of Tanganyika Territory /or the Year r9z6, p. 5.
8The Tanga11yika (Legislative Council) Order in Council, r9z6, in State Papers,
Vol. CXXIII, Part I,pp. 135-142. COUNTER-MEMORIAL OF SOUTH AFRICA 497
24. As from 1930, two or three of the ten appointed unofficial members
were usually Indians 1,but as far as Native representation was concemed,
the position remained unchanged throughout this period 2• An official
publication in 1930 mentioned a contemplation of reserving a proportion
2
of seats for Africans "when suitable persons became available" ,but by
1938 the matter had not proceeded any further. In Native administration
the system of indirect rule was practised, involving extensive use of the
traditional Native authorities 3•
British Somaliland
25. By 1938 there were only 80 Europeans in Somaliland, while the
Native population was estimated at 344,700 \ Until 1929 the Territory
was administered by officials nominated from time to time by the British
Govemment for that purpose 5•A Govemor was then appointed to take
6
charge of the administration of the Territory . He possessed legislative
powers, but was bound to respect existing Native laws and customs
"except so far as the same may be opposed to justice or morality" 7 •
At the time of the Second World War the Territory had not yet acquired
8
either an Executive or a Legislative Council .
III. BRITISH CONTROLLED TERRITORIES IN WEST AFRICA
Gold Coast
26. In 1874 the Gold Coast Colony was constituted as a distinct
9
administrative unit and Executive and Legislative Councils were estab
lished for the Colony 10•The Executive Council had no jurisdiction over
theadjoining areas of Ashanti and theNorthern Territories until 1934 n,
while the Legislative Council's jurisdiction remained confined to the
11
Colony until after the start of the Second World War • The Govemor
legislated by proclamation for Ashanti, the Northem Territories and
Togoland 11•
27. By the beginning of the Second World War the Natives of the
Gold Coast had not yet been representedon the ExecutiveCouncil 12,but
the first African member of the Leg:islative Council had been nominated
1 Report to theCouncil of the League of Nations on the Administration of Tanganyika
Territory for the Year z930, p. 8.
2
HaiJey, An African Surory (r938}, p. r64.
1 Ibid., pp.435-436 ff.
• Kuczynski, op.cil., Vol. II,pp. 641-642.
~ The Somali/and Order in Council, r899, in$tale Papers, Vol. XCI, pp. 1Il4-1u9.
6 The Somaliland Order in Councit, r9z9, in State Papers, Vol. CXXXII, Part I,
pp. 22-39.
1 Ibid.,sec. 15. pp. 28-30.
8 Colonial Reports, Somali/and 1937, Xo. 1880, p. 5.
9Royal Charter of z4 Juty z874, in State Papers, Vol. LXVI, pp. 942-947.
10 Ibid., p. 944; British Order in Council, z874, in State Papers, Vol. LXVI.
pp. 957-958.
11 Elias, T. O.,Ghana and Sierra Leone: The Development of their Laws and Con
stitutions (1962), pp. 31-32.
12 Ibid., p.37. SOUTH WEST AFRICA
as far back as 1889 1• In 1897 the Legislative Council consisted of four
official members, the Chief Justice and three nominated unofficial mem
bers 2• In 1916 the total membership had been increased to 20; of these
nine were unofficial nominated members, three to representtheEuropeans,
three the Paramount Chief and three the educated Africans-the Native
representation therefore forming slightly less than one-third of the total
membership 2• Under a new constitution of 1925 3 there were 15 official
4
and 14 unofficial members on the Council • Of the latter number five
were nominated Europeans representing European intercsts, and six
were nominated African representatives, two from each of the three
Provinces in the Colony area 5•The remaining three unofficial rnembers
were municipal members represcnting the towns of Accra, Cape Coast
and Sekondi 6• These rnembers (who were usually African 7) were elected,
the franchise being based upon a property qualification 8 •The Govemor
with eight executive heads brought the total membership of the Council
to 38. The principle of an official majority was thus retained throughout
the period under consideration 7•
28. A system of indirect rule was practised in local administration in
the provinces in an effort to safeguard the development of self-governing
9
indigenous institutions such as chieftaincy and customary laws •
Nigeria
29. The port and island of Lagos, annexed by Great Britai~ in 1862,
were administered by a Governor and Legislative Council 10• The Council
consisted entirely of British officiais and acted merely as an advisory
body to the Governor 11• The Council remained in existence until 1922,
when it consisted of six official members and four nominated unofficial
members, two of whom were Africans 11.
30. In r9r4 Lagos and other territories over which control had been
assumed by Charter Companies werc amalgamated in a united Nigeria 12.
A Iegislative body, called the Nigerian Council, was then established,
consisting of 36 members appointed by the Governor 13• There was a
1 Elias, op. cit., p. 32.
l Ibid., p. 31.
3 Royal Instructions, I925, in The Constitutions of Ali Countries, Vol. I (1938),
p. 466; The Gold Coast Colony (Legislative Council) Order iH Council, I925, in
State Papers, Vol. CXXI, pp. 208-230; British Lelters Patent, I9I6, in State Papers,
Vol. CX, pp. 276-281.
• The Gold Coast Colony (Legislative Council) Order in Comicil, I925, in State
Papers, Vol. CXXI, sec. 3, p. 2ro.
5
Ibid., secs. 16-19, pp. 214-217.·
6 Ibid., sec. 20, pp. 217-218.
7 Elias, op. cit., p. 33.
8 The Gold Coast Colony ( Legislatiue Council) Order in Coimcil, I925, in StaJ.e
Papers, Vol. CXXI, sec. 23, pp. 219-220; Royal Instructions, r925, in The Constitution
of Ali Countries, Vol. I (1938), p. 466; British Lelters Patent, I9r6, in State Papers,
Vol. CX. pp. 276-281.
9 Elias, op. cit.,pp. 37-38.
10 Hailey, Native A dminisfration, Part III (r95r), p. 24.
11 Padmore G., Pan Ajricanism or Communism?, p. 268.
12 Central Office of Information, Nigeria: The Making of a Natioti (1960), p. 8.
13 Ibid., p. 28. COUNTER-MEMORIAL 'OF SOUTH AFRICA ·499
majority of senior British officials, six unofficial European members
representing foreign vested interests, and six Africans (mostly chiefs)
1
representing tribal communities •The Nigerian Council and the Lagos
Legislative Council functioned separately until 1922 2•
3r. In that year Nigeria received a new constitution. An Executive
Council was established, consisting entirely of ex offecio and nominated
official members 3, the Natives not being represented on this body until
after the beginning of the Second World \Var 4. The new Legislative
Council had 46 members, 27 being official and 17 unofficial 5• Of the latter
13, of whom 6 were Africans 6,were nominated by the Governor and four
(Africans) 7 were elected to represent the municipal areas of Lagos and
8
Calabar • Franchise was open to adult British subjccts and Natives of
Nigeria, but was subject to an income qualification 9• The number of
registcrcd voters in the first elections in 1924 was 1,055 out of a total
adult African population of 126,rnS 10•The Council had no jurisdiction
over the Northern Provinces, for which the Governor-in-Council was
the legislative authority 11.
Sierra Leone
32. The area of Sierre Leone, which had initially been occupied by
a Charter Company, was transferred to the British Crown as a Colony
in 1808. It was administered by a Governor assisted by eight Councillors 12
until 1863, when separate Executive and Legislative Councils were set
up 13. The latter Council contained a minority of nominated unofficial
14
members. It was reconstituted in 1874 , and in 1923 the number of
nominated unofficial members was increased from one ta five 15•
33. ln 1896 a protectorate was proclaimed over the hinterland of
Sierra Leone 16.It was administered by five district commissioners.
17
34. In 1924 a new constitution was granted to the Colony , new.
1
Central Office of Information, op. cit., p. zS.
2 Padmore, op. cit.,p. 268.
3 Royal Instructions, r922, in Constitutions of All Countries, Vol. I (r938), pp.
523-524; Ezera, K., Constitutional Development in Nigeria (r960), pp. 27-28.
4 Central Office of Information, op. cit.,p. 29; Ezera, op. cit., pp. 29, 32.
' The Nigeria (Legislative Council) Order in Council, r9Z2, in State Papers, Vol.
CXVI, pp. 249-259.
6
\Vheare, J.,The Nigerian Legislative Council (1950), p. 39.
7 Ibid., p. 33.
8 The Nigeria (Legislative Council) Order in Council, 1922, in State Papers, Vol.
cxvr. secs. 6 and I4, pp. 25r, 253.
9 Ibid., sec. 20, p. 254.
10 Padmore, op. cit.,p. 269.
11 Hailey, Native Administrntion (1951), Part III, p. 3; Central Office of Informa-
tion, op. cil.,pp. 28-29.
12 Elias, op. cil., pp.223, 227.
u Ibid.,p. 239.
14 British Charter dated 17 Dec. 1874, in State Papers, Vol. LXVI, pp. 948-953.
H Elias, op. cil.,p. 246.
16 Ibid., p.243.
11 Lellers Paient, 1924, in S.R. & O. Revised (r948), Vol. XXI, pp. r-6, Sierra
Leone Protectorate Order in Council, 1924, in S.R. & O. Revised (1948), Vol. VIII,
pp. 384-389.500 SOUTH WEST AFRICA
Executive and Legislative Councils being established and their juris·
diction extended to the Protectorate territory 1. The Executive Council
comprised the Governor and six ex otficio members 2• Africans were not
3
represented on this Council prior to the Second World War •The Legis·
lative Council consisted of II official members, three elected unofficial
members, and not more than seven nominated unofficial members, of
whom three had to be Paramount Chiefs of the Protectorate ~. Of the
ten unofficial members, six were Africans 4• The three elected members
were elected in two electoral areas, viz. the urban and the rural districts 5•
The franchise was granted to adult male British subjects and Natives
of Sierra Leone, subject to certain property, income and educational
qualifications 6• In 1940a total of 5,164 voters qualified for the franchise 7,
out of a population which in 1939 was estimated at about 2 million 8,
9
of which probably not more than r,ooo were Europeans •
British Cameroons
35. This Territory was a portion of the former German Cameroons
and was placed under the Mandate of Great Britain after the First World
War. For economic and geographic reasons the Northern and Southern
parts of the Territory were administered as intefral parts of the Northern
and Eastern provinces of Nigeria respectively 1 .Thus, legislation for the
southern section of the Territory was enacted by the Govemor of Nigeria
with the advice and consent of the Nigerian Legislative Council, in the
same way as for the Colony and Southern provinces of Nigeria, while
legislative authority over the northern section was exercised by the
Governor of Nigeria, as for the Northern provinces of that Territory. 11
However, the Cameroons had no representation whatever on the Nigerian
Legislative Council until the Second World \Var 12•
British Togoland
36. After the First World \Var the western portion of the former
German Togoland was placed under the Mandate of Great Britain. The
1
Elias, op. cil., p.247.
2 Lelters Patent, I924, in S.R. & O. Revised (1948), Vol. XXI, sec. 6, p. 2; Elias,
op. cit., pp. 250-251.
3 Elias, op. cil., p.251.
4 The Sierra Leone (Legislative Council) Order in Council, I9z4, in State Papers,
Vol. CXIX, sec. 4, p. 6.
5 The Sierra Leone (Legislative Council) Order in Council, op. cil., sec. 7 (1)p. 6.
6 Ibid., secs. 23 (1) and 24 (1), pp. 10-1 r.
1 Hailey, Native Administration and Political Development in British Tropical
Africa, 1940-1942, p. Sr.
8 Kuczynski, op. cit.,Vol. I (1948), p. 161.
9 Ibid., pp. 189-191; Elias, op. cit.,p. 217.
10 The British Cameroons Order in Council, I923, in State Papers, Vol. CXVII,
pp. 6o-63: Report by His Majesty's Government to the Council of the League of Nations
on the Administration of the British Cameroons /or the Year I928, p. 4.
11 The Nigeria (Legislative Council) Order in Council, I9Z2, in State Papers, Vol.
CXVI, sec. 24, pp. 255-256.
12 Wheare, op. cit., p.199. COUNTER·MEMORIAL OF SOUTH AFRICA 501
northern section of the Territory was administered by the Chief Com
missioner of the Northern Territories of the Gold Coast 1 as an integral
part of the Gold Coast Dependency 2, while the southern section was
made a district of the Eastern Province of the Gold Coast Colony. Legis
lative enactments made for the Northern Territories by the Governor of
the Gold Coast applied also in the northern section of British Togoland,
but the Govemor could also legislate specially for this latter area 3• Simi
larly, in the southern section of the Territory, the legislative enactments
of the Gold Coast Legislative Council applied but in addition the Gover
nor was empowered to legislate speciaHy for that area 3• The local ad
ministration was carried out as far as possible through Chiefs with the
3
assistance of tribal authorities •
Cambia
37. The territory of Gambia comprised a Colony and a Protectorate.
The total populat10n in 1931 was estimated at 199,520 of whom only
274 were Europeans 4•The Colony was transferred to the British Crown
in 1821 and declared a separate Colony with its own legislature in 1888 5•
In 1893 provision was made for the Legislative Council of the Colony
to legislate also for the Gambia Protectorate 6•
38. Throughout the period before the Second World War neither the
Executive Council nor the Legislative Council of Gambia contained
any elective element; all members of both Councils were appointed by
the Govemor 7• ln 1938 the Executive Council consisted of the Colonial
Secretary and three other senior officiais, while the Legislative Council
consisted of the Governor, the Colonial Secretary, five official members
and four unofficial members s.
39. A system of indirect rule through Chiefs and Commissioners was
introduced for the Gambia Protectorate in r894 9•This system was de
fined in greater dctaiI by two Ordinances passed in r933 1, which were
directcd towards the development of local self-government by various
Native authorities, such as the Head Chiefs, under the advice and super
vision of the Commissioners, who represented the Governor 10.
1 British Sphere of Togo/and Order in Cauncil, r9z3, in State Papers, Vol. CXVII,
pp. lI6-r21.
2 P.M.C., Min. V, p. 42.
3 Report of His Majesty's Government to the Council of the League of Nations on
the Administration of Togoland undeY BYitish Mandate, r928, p. 5.
• Kuczynskî, op. cit.Vol. I (1948), pp. 337, 347.
5 British Letters Patent, r888, in State Papen, Vol. LXXXI, pp. 140-145.
6 B;,itish O;,deYin Council, :r893, in State Papers, Vol. LXXXV, pp. 1251-1253.
7 British Letters Patent. r888, in State Papers, Vol. LXXXI, secs. 7 and 8, p. 142;
Letters Patent, r9r5, secs. 6 and 7, in The Constitutions of All Countries, Vol. I
(1938), pp. 453-454; Royal Instructions, r9r5 (as amended 1928), sec. 4.
8 Colonial Reports, The Gambia, 1938, No. 1893 (1939), p. 10.
9 Ibid., pp. 10-I I.
JO Ibid.,P· Il.502 SOUTH WEST AFRICA
IV. FRENCH CONTROLLED TERRITORIES
French West A/rica
40. The territories comprising French West Africa, viz., Niger,
Dahomey, Upper Volta 1,Ivory Coast, Sudan, French Gujnea, Maurüania
and Senegal, had ail been placed under effective French control by 1890.
In r904 the territories were reorganized into a federation under a Gover
nor-General 2, each territory becoming a province headed by a Lieu
tenant-Govemor 3•The Govemor-General was assisted by a conseil de
gouvernement, which had consultative powers only 4, while each Lieu
tenant-Governor was assisted by an Admirustrative Council, a purely
advisory body 5 (except in the case of Senegal. the position of which is
dealt with later). The provinces (except for Senegal, Niger and Maurita
nia) also had representation in the Higher Council of Colonies in France 6,
which was also a purely.consultative body 7.On the whole, therefore (i.e.,
again excepting Senegal), opportunities for participation by the popu
lation in the processes of government were limited to membership of
consultative bodies.
4r. The manner of filling the positions on the consultative bodies
varied between the provinces. In Niger and Mauritania there was no
franchise-the Administrative Councils consisted only of officials and
nominated unofficial members 8, and these in turn elected their repre
sentatives in the conseil de gouvernement 9• In the other provinces (save
Senegal) there was a limited franchise. The limitative feature generally
1
was French citizenship, which was not enjoyed by the Natives 0, except
bynaturalization 11•Thus in these provinces representatives in the Higher
Council in France and in the conseil de gouvernement were elected by
French citizens 12• For their Administrative Councils, however, some
members were also appointed and some elected by Chambers of Com
merce and Agriculture and by a special electoratc consisting of specified
categories of non-citizens (such as holders of certain public positions,
traders, certain property owners, etc.) 13•
42. The position in Senegal was for historical reasons different from
that in the other provinces. All people born in the four communes of
Senegal (Gorée, Dakar, Rufisque and St. Louis), including Africans,
1 Upper Volta ceased to existas a separate entity in 1932, when it was absorbed
into the other territories adjoinîng it.(Vide Thompson, V. and Adloff, R.., French
West Africa (1958), p. 23.)
2
Thompson, V. and Adloff, R., French West Africa (1958), pp. 22-23.
3 Robinson, K., "PoliticalDevelopment in French \Vest Africa", in Africain the
Mode~n World, ed. by C. W. Sti!lman (1955), pp. 140, 147-148; Thompson, V. and
Adloff, R., French West A/rica, p. 23.
• Robinson, Africain the Modern Wor!d, pp. 148-149.
5 Ibid.,pp. 147-148.
6 Thompson, V. and Adloff, R., French West Africa (1958), p. 44.
7 Deschamps, H., TM French Um'on (1956), pp. 32-33.
a Robinson, Africain theModern World, p. 148.
9
Ibid.,pp. 148-149.
10Deschamps, op. cit.,pp. 39-40.
11Ibid., p. 40.
12Thompson, V. and Adloff, R., French West Africa (1958), p. 44.
13Robinson, Africain the Modern World, p. 148, COUNTER-MEMORIAL OF SOUTH AFRlCA 503
enjoyed French citizenship 1• The inhabitants of the communes had
ever since 1848enjoyed the right to elect a deputy to the French Chamber
in Paris 2 and in 1914 Senegal's first African deputy was elected 3. In
1879 a General Council was established in Senegal, consisting of re
presentatives of the four communes elected by the citizens, and having
limited legislative and administrative jurisdiction over the communes
only 4• This was replaced in 1920 by a Colonial Council, with limited
legislative jurisdiction over the whole of Senegal 5•Some of its mernbers
were elected by the citizens and some by the Native Chiefs acting as
an electoral college. but since 1925 representatives of the citizens were
in the majority 6• In 1939 the franchise for members of the Council was
extended to French subjects who had completed their military service.
They could elect 18 representatives, as against 26 citizens' representatives
and 18 Chiefs' representatives 7•
43. Despite the special treatment of Senegal, the participation of the
Natives of French \Vest Africa in the processes of government was ex
tremely Jimited. Apart from the consultative nature of the various bodies
referred to above, only a very small number of Africans became citizens
and thus acquired the right to vote. By 1936, out of a total population
of 14.5 million some 78,000 were citizens by virtue of their connection
with the communes, while about 2,000 persans all over the Federation
had acquired citizenship by naturalization 8•
French Togoland
44- The territory of Togoland under the French Mandate was ad
ministered by a Commissioner 9• Between 1933 and 1946 it was brought
into close administrative association with French West Africa 9• Four
Advisory Councils were introduced in 1922 10whose members were
elected by electoral colleges 11•
French Equa_torialA/rica
45. French Equatorial Africa comprised the territories of Gabon,
Oubangui-Chari, Tchad and Moyen-Congo. From 1910 until after the
Second \Vorld \Var the basic structure of the federation of these terri
tories remained unchanged 12•Before the Second World \Var only Senegal
in French West Africa sent a deputy to the French Parliament 13•French
1 Robinson, op. cit.,pp. 143-144; Thompson, V. and Adloff, R., French Wes
Ajrica (1958), pp. 108-109.
2 Thompson, V. and Adloff, R., French West Africa (1958), p. I08.
3 Ibid.,p. roS.
• Ibid., pp. 109-uo; Robinson, Africain the Modern World, pp. 145-146.
5 Robinson, Afdca in the Modern World, pp. 145-146.
6 Ibid., p. 146.
7 Ibid.; Thompson, V. and Adloff, R., French West Africa (1958), p. II r.
8
Robinson, A/rica in the llfodern World, p. 147.
9 Hailey, An African Survey (1957), p. 333.
,o P.M.C., Min., XV, p. 27.
11 Ibid., p. l33.
12Thompson, V. and Adloff, R., The Emerging States of French Equatorial Africa
(r96o), p. 26.
13 Thompson, V. and Adloff, R., French West Africa (1958), p. 108. SOUTH WEST AFRICA
Equatorial Africa was represented in France by one delegate, elected by
French citizens alone, to the Superior Council of the Colonies, which
was a purely consultative body and which rarely convened 1.
46. At the head of the administration of French Equatorial Africa
was a Govemor-General, who was assisted by an Administrative Council,
a purely advisory body consisting of nominated federal officiais, four
French citizens selected by the Chamber of Commerce and four French
speaking Africans to represent the Natives whowere French subjects. The
latter were elected by regional electoral colleges from among those of the
inhabitants who were not French citizens 2• Each of the four colonies
or territories was headed by a Lieutenant-Governor, assisted by an ap-
pointed Advisory Council 3• •
The French Cameroons
47. The Cameroons, under a mandate entrusted to France, was since
1921 administered as a separate unit under a Commissioner 4• By a
decree of 9 October 1925 the Councils of Notables were introduced.
These Councils possessed only advisory powers and were elected by
an electoral body of tribes which nominated a certain number of members,
the list of whom it submitted to the Administrator. The latter then pro
posed a certain number of names to the Govemor 5•
Madagascar
48. Madagascar was dcclared a French colony in 18g6 6• Initial policy
differentiated between three sections of the Territory according to the
degree of Native self-government in each 1. Indirect and direct rule were
practisedin varyingdegrees,and consultation with Advisory Councils of
Native Notables was effected in the more advanced parts.
49.'Later policy was directed at the training of the Natives towards
ways and outlooks which were essentially French 8•The Native tribes
were all pJaced under direct contro1 of French officiais. By 1924 only 150
Natives had been granted French citizenship 9•
50. In 1924advisory bodies called Economie and Financial Delegations
werecreated 10•Onesection consisted of 12 French citizens elected by the
Chambers of Commerce in the principal towns, and another 12 were
elected in constituencies, while the indigenous section consisted of 24
members elected by the notables of each district council 10•The Dele-
1 Thompson, V. and Adloff, R., French West A/rica (1958), p. 44; Thompson,
V. and Adlofi, R., The Emerging States of French Equatorial Africa (196o), p. 26.
2 Thompson, V. and Adloff, R., The Emerging States of French Equatorial Africa
(196o), p. 26.
3 Ibid.,p. 26; Hailey, A11African Survey (1957), p. 341.
• Hailey, An African Survey (1957), p.335.
'P.M.C .• Min., XV, p. 133.
6 Howe, S. E., The Drama of Madagascar (1938), p. 290.
7 Roberts, S. H., History of French Colonial Policy {I870-I9z5) (1929), Vol. II,
pp. 397-398.
8
Kent, R. K., From Madagascar to the Malagasy Republic {1962), pp. 72, 79-82;
Encyclopaedia Britannica, Vol. 14 (1947), p.6o6.
9 EncycloPaedia Britannica, Vol. 14 (l947), p. 6o6.
1° Kent, R. K., From Madagascar to the Malagasy Republic (1962), p. 78. COUNTER-MEMORIAL OF SOUTH AFRICA 505
gations were infüally consulted on matters of budgets, public loans and
works 1,but were not considered a success 2, and fell into disuse. By the
timeoftheSecond World Warthere was no responsible body in existence
representing the population of Madagascar either formally or informally 2•
V. ITALrAN CONTROLLED TERRITORIES
Eritrea
5I. Eritrea was until I936 administered by ltaly as a Colony. The
administration was in the hands of a Govemor, who was responsible
to the Italian l\1inister for the Colonies, and who was assisted by a local
council consisting of the heads of departments. There was no direct re
presentation of the indigenous peoples in the govemment of the country,
although Native headrnen and tribal Chiefs were used in local adminis
tration J. In each of the seven principal towns local administration was
in the charge of a European mayor who was appointed by, and responsible
to, the Governor 4•
52. In I936 the Territory became one of the six provinces of Italian
East Africa. The Govemor of Eritrea became responsible to the Governor
General and Viceroy in Addis Ababa 5• The system of government was
greatly centralized; the Govemor-General himself held only limited
5
responsibility, most of the important questions b<:ingreferred to Rome •
Italian Somaliland
53. The constitutional position in this Italian Colony was substantially
the same as in Eritrea. The southem portion of the Territory had been
adrninistered by a Governor from I9IO 6, and when Italian authority
was imposed on the northern section in I925-r926 6, it was administered
by civil commissioners in eachdistrict, whowereresponsibleto theGover
nor 6• The Territory fonned part of the Italian East Africa Colony
7
constituted in 1936 ,its Governor becoming responsible to the Governor
General in Addis Ababa, who in tum was responsible to the Minister
of Italian Africa in Rome 5• Here also, therefore, the iµdigenous popu
lation had no participation in the central government of the Colony.
VI. BELGIAN CONTROLLED TERRrTORIES
Belgian Congo
54. Until its independence in 1960, the Belgian Congo was for ail
8
practical purposes ruled directly from Brussels •While certain functions
1 Kent, R. K., From Madagascar lo the Malagasy Republic ( 1962), p. 78.
i Ibid.,p. 89.
3 Encyclopaedia Brilannica, Vol. 8 (1947), p. 6go.
4 Trevaskis, G. K. N., Eritrea (1960),p. 27.
' Royal Institute of International Affairs, The llalian Colonial Empire (Informa-
tion Dept., Paper No. 27) (1940), p. 37.
6 Encyclopaedia Britannica, Vol. 20 (1947), p. 968.
7 Ibid.,pp. 968-969. ·
8 Vide Charte Coloniale, Loi Sur Je Gouvernement du Congo-Belge, Igo8, in SOUTH WEST AFRICA
506
rested with the Governor-General, assisted where necessary by advisory
bodies, the indigenous population had no say whatsoever in the govern
rnent of the country 1•
Ruanda-Urundi
•55. This former German Colony was entrusted as a mandate to Belgium
in 1924- In 1926 the Belgian King approved of an Act which made pro
vision for the administration of the Territory as an integral part of the
Belgian Congo 2, but the legislative enactments of the Belgian Congo
weré not applicable to the Tcrritory unless specifically so provided 3,and
the Territory maintained its own budget. The Territory was administered
by a Vice-Governor-General 4, to a large extent on the samc basis as the
Belgian Congo 5, and thus without any participation by the indigenous
peoples in the central government.
VIL PORTUGUESE TERRITORIES
56. Portuguese territories on the African Continent south of the Sahara
are Portuguese Guinea, Angola and Mozambique. Since the nineteenth
century these territories have been regarded as parts of Portugal 6.
57. The population was made up of two distinct juridical classes:
"citizens" and "aborigines" 7• Europeans fell automatically into the
former while Africans and Coloureds could obtain the status of citizen
by satisfying the necessary qualifications, namely adoption of the Euro
pean way of life, the ability to speak and write Portuguese and the posses
sion of some trade or calling giving recognized financial status 8 .Special
provisions protected the "Natives" or "aborigines" against abuse 9 and
permitted their relations inter se to be governed by Native or adapted
laws and customs 10.
58. In the nineteenth century the territories were administered under
strict direct control, but early in the twentieth century a contrary trend
6
set in and control was transferred in part to the Colonial Governors •
Since 1926 the Governors-General and Govemors were assisted by local
advisory bodies called Councils of Government 11• They were composed
of officiais and nominated members, and since 1930 also of members
12
elected by commercial organizations and municipal councils •Through-
Codes et Lois du Congo-Belge.Tome I (1954), p.9; Hailey, An AfricanSurvey (r938),
pp. 206-213.
1 Merriam, A. P., Congo: Background oi Confiict (196r), p. 14.
2 Loi Sur le Gouvernement du Ruanda-Urundi, 1925, in Codes et Lois du Congo-
Belge ( 1954), Tome 1, p. 17.
3 Loi Sur le Gouvernement du Ruanda-Urundi, 1925, op. cit.,sec. 3.
4 Ibid .sec. 1.
5
6 Hailey, An Ajrican Survey (1938), pp. 212-213.
Ibid. (1957), p. 228.
1 Ibid., pp. 231-232.
8 Ibid.,p. 23 r.
9 Colonial Act, Art. 15, in Political Constitution of the Portuguese Rtpublic (2nd
ed.), p. 66.
10 Ibid.,Art. 22, p. 67.
11
Ibid., p. 355.
12Hailey, An A/rican Survey (1938), p. 2z5. COUNTER-MEMORIAL OF SOUTH AFRICA 507
out the period under review there was therefore no direct or general
franchise in the territories, the only form of franchise existing at munici
pal level, wherc two councillors were elected by the citizens of the area
and two by economic organizations or by the 20 principal taxpayers 1•.
VIII. SPANISH TERRITORIES
Spanish Guinea
59. Spanish Guinea consists of Continental Guinea (Rio Muni) and
2
the isiands of Fernando Po, Annobon, the Elobeys and Corisco •
60. Throughout their occupation of these areas the Spaniards have
treated them as appendages of Spain 3• The territories were administered
by a Governor stationed at Fernando Po, with sub-Governors at Bata
and Elobey 4.Legislation was undertaken by decree of the metropolitan
Ministry 5• The local population therefore had no participation in the
central govemment.
IX. INDEPENDENT STATES
Ethiopia
61. After Ethiopia had existed as an independent, absolutc monarchy
for more than 2,000 years, a constitution was first adopted in r93r,
whereby the monarchy became a constitutional one 6• The constitution
created a Chamber of the Senate and a Chamber of Deputies 7• The
members of the Senate were all appointed by the Emperor from among
the dignitaries who had "for a long time served his empire as princes or
ministcrs, judges or army leaders" 8•In regard to the ChamberofDeputies,
the Constitution provided that "as a temporary measure until the people
are capable of electing them themselves, the members of the Chamber of
Deputies shall be chosen by the dignitaries and the local chiefs" 9• In
fact there were no elections in Ethiopia prior to the Second \Vorld \Var 10•
Liberia
62. The Constitution of Liberia was drawn up in 1847 and is to a great
extent modeIJed on the Constitution of the United States of America 2•
The constitution provides that the delegates to the House of Represen-
1 Hailey, An .4/Yican Survey (1938), pp. 215-216.
2 British Foreign Office, Peace Handbooks, Vol. XX (1918-1919), Doc. No. 132,
p. J.
3 Hailey, An African Suroey (1957), p. 234.
4 Ibid.,p. 233.
• Ibid.,p. 234.
6 Sandford, C., Elhiopia under HailéSelassie (1946), p. 46.
7 "The Constitution of Ethiopia" (1931), Chap. II, Art. 7, in Peaslee, A. J.,
Constitutions of Nations, Vol. I (2nd ed.), p. 855.
8 Ibid.,Art. 3r, p. 857.
9 Ibid.,sec. 32, p. 857.
10Silberman, L., "Ethiopia Elects", in The Lislener, 14 Kov. 1957.
11
"Constitution of the Republic of Liberia", in Peaslee, A. J.,Constitutions of
Nations, Vol. II (2nd ed.), pp. 586-594.508 SOUTH WEST AFRICA
tatives "shall be elected by and for the inhabitants of the several counties
1
of Liberia" (i.e., the coastal strip stretching approximately 40 miles
inland). As a result, the tribal people fü,ing in the provinces jo the
hinterland of Liberia, who constitute by far the greater portion of the
population of the country 2,were excluded from the franchise. However,
the Native tribes were entitled to send delegates to the Legislature (one
from each tribe which paid more than 100 dollars in tax per annum) 3•
where delegates had the right to discuss _matters pertaining to Native
interests and to vote thereon l. With regard to the Senate, the consti
tution confined membership to inhabitants of the counties of Liberia 4,
the hinterland was therefore excluded from representation. It has been
said that Liberia presented the paradox of being a Republic of I2,ooo
5
citizens with I million subjects •
1 Peaslee, op. cit., Art. 2, sec. 2 of Legislative Powers as amended in 1849,
1861, 1907 and 1927, pp. 588-589.
z Carter, G. M., African One-Party States (1962), p. 356.
3 Huberich, C. H., The Polilical and Legislative History of Liberia, Vol. II (1947),
p. uo7.
• "The Constitution of the Republic of Liberia", Art. 2, sec. 5 of Legislative
Powers in Peaslee, A. J., Constitutions o/ Nations, Vol. II, 2nd edition (1956),
p. 589.
5 Report of the experts designated by the Committee of the Council of the League
of Nations, appointed to study the problem raised by the Liberian Government's
request for assistance, Pa,Persconcerning AOai,s in Liberia, Du. r930-May r934
(1934), p. 59. Annex B
BRIEF SUMMARY OF THE CONSTITUTIONAL DEVELOPMENTS IN THE SAME
CouNTRIES AFTER THE BEGINNING OF THE SECOND WORLD WAR
I. BRITISH CONTROLLED TERRITORIES IN CENTRAL AND
SOUTHERN AFRICA
Southern Rhodesia
r. In 1951 the income and property qualifications for voters were
1 2
increased , by 1953 only 481 Natives had been registered as voters ,
although the Native population in 1951 was estimated at 2 million, as
against 136,017 Europeans, 4,343 Asiatics and 5,964 Coloureds 3• The
establishment of the Federation of Rhodesia and Nyasaland in 1953
did not affect the franchise qualifications for the Legislative Assembly
in Southern Rhodesia i; but in 1957 a new system of franchise qualifi
cation was introduced, providing for a voters' roll with "ordinary"
qualifications and a voters' roll with "lower" qualifications 5•The number
of. "lower" roll voters who were entitled to be registered as such was
restricted to a maximum of 20 per cent. of the total number of other
voters 6. Under this system there were 67,132 registered ordinary voters
in 1959, of whom 1,157 were Africans and 64,280 Europeans, and r,107
"lower" voters, of whom 876 were Africans and 173 Europeans 7• These
arrangements did not result in any African members being returned to
the Assembly.
2. Southern Rhodesia received a new constitution in 1961 8. The
executive authority is vested in Her Majesty the Queen and is exercised
on her behalf by a Governor and Cabinet 9.For the Legislative Assembly
the "ordinary" or "A" roll and "lower" or "B" roll of voters were
retained, with broadly the same franchise qualifications as before, except
for a number of extensions 10• The Territory was divided into 50 con
stituencies and 15 electoral districts; in the former the value of "B"
votes was to be calculated according to a formula based on the proportion
of "A" and "B" votes cast, while conversely in the latter the value of
"A" votes was to be determined on that basis H. The first eiections under
1 Vide Annex A, para. 4, supra and Lord Hailey, An African Suroey (1957). p.185.
2 Hailey, An African Survey (1957), p. 185.
3
Official Year Book of Southern Rhodesia, No. 4 (1952), p. 130.
• Cmnd. z149, p. 33.
5 Ibid.,pp. 34-35.
6 Ibid., p. 34.
1 Ibid.,p.35.
8The Southern Rhodesia (Constitution) Order in Council, 1961, Statutory Instru
ments, 1961, No. 2314.
9 The Constitution of Southern Rhodesia, z96I, se,;s. 42 and 43, Stat11tory In
st10ments, 1961, No. 23!4, Annex, p. 25.
Ibid., Second Schedule, pp: 61-63.
u Ibid.,para. 10,p. 63.5ro SOUTH WEST AFRICA
the new constitution held in 196r resulted in 14 Africans and one Coloured
being eiected to the Assembly out of a total membership of 65; these
were the first non-Whites to sit in the Southern Rhodesia Parliament 1•
3. The constitution also contained a Declaration of Rights, safe
guarding personal liberty, freedom of conscience, assembly, association,
and the like, and provided that no law could discriminate against anyone
in respect of race, tribe, colour or creed 2•A Constitutional Council was
established to safeguard against infringements of the Declaration of
Rights 3•
Northern Rhodesia
4. In 1945 the number of nominated European unofficial members of
the Legislative Council • who represented Native interests was increased
from one to three 5•As from 1948 the Africans were representcd on the
Council by members of their own race, two Africans having bcen ap
6
pointed in that year , by 1959 there werc six nominated unofficial
African members on the Council, which then consisted of 26 members
altogether 7. The franchise for the 12 elected members of the Council
remained unchanged to 1959, in practice lcaving virtually ail Africans
7
without a vote •
5. A new constitution in 1959 resulted in the Africans obtaining two
representatives of their own race on the Exccutive Council, out of a total
8 9
membership of ten • The Legislative Council was reconstituted and the
franchise for the elected members was given to "ordinary" voters and
"special" voters, the qualifications for the latter being considerably lower
than for the former 10. In certain constituencies the weight accorded to
votes cast by "special" voters was limited in relation to votes cast by
"ordinary" voters, while other scats were reserved by race 11•The elections
held under this system resulted in eight African elected members being
returned in addition to one nominatcd African member 12, out of a total
membership of 30.
6. Further amendments to the constitution in 1962 extended the fran
chise 13and resulted in an increased African representation in the Legis
lative Council. In 1963 there werc 19 elected African members on the
Council, as against 17 elected European members, one elected Asian
member, and six nominated European officiais. The Executive Council
1 Keesing's Contempora,y À'l'chives, Vol. No. XIII, 1961-1962, p. 19135.
2
The Constitution of Southern Rhodesia, 1961. Chapter VI, secs. 57-72, Stalutory
Instruments, 1961, No. 2314, Annex, pp. 29-43.
3 Ibid., Chapter VII, secs. 73-91, pp. 43-51.
• Vide Annex A, para. 6, supra.
5 Cmnd. 1149, p. 39; vide also Hailey, An African Survey (1957), pp. 290-291.
6Cmnd. 1i49, p. 39.
1 Ibid., paras. 47-48, pp. 39-40.
8 Ibid., para. 59, p. 43.
9 Ibid., para. 60, p. 43.
10 Ibid., para. 65, pp. 44-45.
11
Ibid., paras. 61 and 62, pp. 43-44.
12 Keesing's Contemporary Archives, Vol. No. XII, 1959-1960, p. 16793.
n The Northern Rhodesia {Electoral Provisions) Order in Council, 1962,Statutory
Instri,ments, 1962, No. 626. COUNTER-MEMORIAL OF SOUTH AFRICA
5II
of II, now includes four unofficial African members, as against two
unofficial and five officialEuropeans 1.
Nyasaland
7. Africans obtained membership of the Legislative Council 2 for the
first time in 1950, when two Africans were nominated 3• A third nomi
3
nated African memberwas added in 1953 ,the total membership of the
Council then being 19.
8. A form of election was first introduced in 1956, when the Council
was reconstituted to include six non-African members elected by the
European, Asian and Coloured communities, and five African members 4
elected indirectly by electoral coUeges 5 •
9. In 1959 two Africans were added to the Executive Council as
additional nominated unofficial members 6•
7
10. The Territory received a new constitution in 1g61 .The Executive
Council now contains a majority of members drawn from the elected
members of the Legislative Council and appointed by the Governor 8•
The 28 elected members of the Legislative Council are elected in the
majority of constituencies by voters on a lower roll and in the remaining
constituencies by voters on a higher roll 9. The first elections under the
new constitution returned a Legislative Council containing six Europeans,
one Asian and 21 Africans 10. Official membership at first maintained
a balance between Europeans and Natives on the Executive Council 10 ;
but when Nyasaland became self-governing on l February 1963, a
11
Cabinet was formed consisting of nine Africans and one European •
Independence 1s p1anned for June 1964,
The Federation of Rhodesia and Nyasaland
11. The Fedcration was created in 1953 12 •Executive powerwas vested
in Her Majesty, to be cxcrcised by a Governor-Genera1 and Cabinet 1•
The federal executive and Iegislative authority extended only to certain
matters specified in the Constitution, the residual powers remaining
vested in the Territorial Governments H. Legislative power was exercised
by the federal Assembly consisting of 26 European members, elected
1 Central Office of Information, Commonwealth Suroey, Vol. 9, No. r (r963), p. 5.
2 Vide Annex A, para. 8, supra.
3 Cmnd. 1149, para. 89, p. 52.
-1Ibid., para. 90, p. 53.
5 Ibid., paras. 91 and 96, pp. 53-54.
6 Ibid., para. 98, p. 54.
7 The Nyasaland (Constitution} Ortler in Council, 1961; StatutoYy Instruments,
196r, No. II89.
8 Ibid., secs. 6-8, p. 7.
9 Ibid., sec.20 and sec. 60, pp. 10 and 24.
1
° Keesing's Contemporary Archives, Vol. No. XIII, 1961-1962, p. 18373.
u Steinberg. S.H. (ed.), The Statesman's Year-Book I963, p. 5ro.
12 The Federation of Rhodesia and Nyasaland (Constitution) Order in Council,
1953, Statutory Instruments, 1953, No. n99.
13 Cmnd. r r49, paras. 45 and 47, pp. II and r2.
u Ibid., para. 9, p. 2.512 SOUTH WEST AFRICA
in common roll constituencies, six specially elected African members
and three European members charged with special responsibility for
African interests (one elected in Southern Rhodesia and one each ap
pointed by the Govemors of Northem Rhodesia and Nyasaland re
1
spectively) • The common roll franchise was open to all races but was
subject to property, income and other qualifications 2•
12. In 1957 the composition of the Assembly was altered, and an in
tricate voting system was introduced based on two separate voters'
rolls and various categories of members of the Assembly 3• As a result
the Assembly now contains 12 African members out of a total member
4
ship of 59 •
13. The Federation is at present in the process of dissolution pursuant
to an Act of the British Parliament passed in 1963 5•
Swaziland
14, The traditional Native bodies which had been consulted by the
administration 6 recieved statutory recognition in 1944 7 • In 1950 the
Paramount Chief in Libandhla was authorized 8 to make rules for the
"peace, good order, and welfare" of the Natives of Swaziland, subject
9
to the approval of the Resident Commissioner of the Territory •
I5. A new constitution for the Territory has been under discussion
10
since 1960 .
Basutoland
11
16. The system of indirect rule which had been introduced in 1938
led to the establishment of District Councils in each of the nine districts
of the Territory in 1943 12•Sorne of the members of the Councils were
elected by the people in each district 13•From each Council one member,
elected by that Council was nominated to the Basutoland Council 13by
the Paramount Chief 14.By 1950 the number had been increased to four
for each District Council 1 •
1 Cmnd. II49, para. 20, p. 5.
2 Ibid., paras. 21-27, pp. 5 and 6.
3 Ibid., paras. 31, 33, 35-38, 41, pp. 7-9.
• Keesing's Contempornry Archives, Vol. No. XI, r957-1958, p. r6546.
5 Ibid., Vol. No. XIV, !963-1964, p. r9540.
6
Vide Annex A, para. 10, sup,-a.
7 Native Administration Proclamation of 1944, vide Hailey, Native Administra
tion,Part V, pp. 388-389.
8 Native Administration (Consolidation) Proclamation, 1950 (No. 79 of 1950),
vide Hailey, Native Administration, Part V, p. 389.
9 Ibid., sec. 22, vide Hailey, Native Administration, Part V, p. 390.
1° Central Office of Information, Commonwealth Survey, r962, Vol. 8, No. 8, pp.
340-343.
11 Vide Annex A, para. II, supra. .
12 Basutoland Council, Report on Conslitutional Reform and Chieftainship Affairs,
Basutoland Constitutional Handbook (1960), pp. 42-44.
n Ibid., p. 43.
14 Basutoland Council, op. cit.,pp. 42-43.
15
Ibid., p. 43. COUNTER-MEMORIAL OF SOUTH AFRICA 513
17. In 1959 the Territory received a new constitution, whièh estab
lished Executive and Legislative Councils 1• Half of the members of the
Executive Counci1are Africans and half Europeans. The Resident Com
missioner has a deliberative and a casting vote 1• The Legislative Council
known as the Basutoland National Council, has 80 members of whom
ail but four European oflicials are Africans 1; of these 40 are elected by
the District Councils which have now become fully elective bodies on
the basis of a franchise extended to a11adult taxpayers 1•The remaining
1
membersareChiefs and members nominated by the Paramount Chief •
The legislative power in respect of certain matters such as defence and
extemal aftairs, has been reserved for the High Commissioner of the
Territory 1.
Bechuanaland
18. The European Advisory Council 2 was established on a statutory
basis in 1947 3 and in 1950 a Joint Advisory Council was created con
sisting of four officiais and eight members from each of the African and
European.Advisory Councils ·4. .
19. The Territory received a new constitution in 1960 5,which is still
in force. Africans were given two nominated members in an Executive
Council of nine 6, and 12 members (two appointed and ten elected),
in a Legislative Council of 36 1.The clection is by an electoral college
called the African Council, a newly constituted advisory body relative
to Native administration 8• Apart from official membership this Council
consists of the African authorities of the eight tribes and 32 Africans
appointed or elected from 13 electoral districts 9•
II. BRITISH CONTROLLED TERRITORIES IN EAST AFRICA
Kenya
20. Jn 1944 an African was appointed to the Legislative Council of
10
Kenya for the first time, having been selected from a list of names
proposed by the local Native Councils 11• A second African seat was
1 Central Office of Information, Commonwealth Suroey, 1959, Vol. 5, No. 20,
pp. 858-859.
2 Vide Annex A, para. 14,supra.
3 Proclamation 44 of 1947. Vide Hailey, Native Administration, Part V, p. 319.
• Commonwealth Relations Office: Bechuanaland Protectorate Report for the Year
x957, p. 84; Lord Hailey, Native Administration, Part V, pp. 320-3,z1,
5
The Bechuanaland Protectorate (Constitution) Ortler in Council, 1960; Statu
tory Instruments, l96o, No. 2.p6.
6 The Bechuanaland Protectorate (Constitution) Ortler in Council, 1960, op. cit.,
secs. 3-5,p. 4·
1 Ibid., secs.22, 24 and 25, pp. 9-10.
8 Ibid., sec24 and sec. 62, pp. 9, 23-24.
' Ibid., sec. 56, pp.21-22.
10 Vide Annex A, para. 17, supra.
u Central Office of Information, Kenya, Pamphlet No. R.4489 (196o), p. 17. SOUTH WEST AFRICA
created in 1947 1. The Lcgislative Council was a~ain enlarged in 1948 2
and in 1952, when there were six appointed Afncans in a membership
totalling 45. There were also six Asians and two Arabs, the other members
being official and elected Europeans 3 •In the same year an African for
the first time took a seat on the Executive Council in the place of the
European representing African interests 3•
21. As from 1954 a large number of successive constitutional changes
were introduced, the one following rapidly on the other. In 1957 the
first African elections in the territory were held for eight African seats
in the Legislative Council, on a qualitative franchise coupled with a
system of multiple voting i. Shortly thereafter Africans were given 18
seats (14by direct election and four through an electoral college) out of a
5
total membership of 91 •
22. The 1960 Constitution provided for a Legislative Council of 65
elected members. By a system of "reserved seats" and "national mem
bers" it guaranteed a certain minimum number of seats to each popu
6
lation group (European, African, Asian and Arab) • These were coupled,
however, with common roll elections for the remaining seats on the basis
of such low franchise qualifications 7 as to result in an over-all Atrican
8
mtJjority (37 out of a total of 65) •The Executive Coundl then consisted
of 12 Ministers, of whom four were Africans 9.
23. In 1962 there was tentative agreement upon a constitution intro
ducing universal adult suffrage and a bicameral legislature 10•Without
having been put into effect, however, this Constitution was in March 1963
superseded by one drawn up for interna! self-government of Kenya 11,
which became independent on 12 December 1963 12. A House of Re
presentatives consists of II7 members elected by universal adult suffrage
and 12 members 13elected by the elected members of the Houseformingan
electoralcollege 14, and a Senate of 41 members representing each of the
1 Colonial Office Notes on Colonial Constitutional Changes, r940-r950, p. 13.
2 Additional Royal Instructions, G.N. No. 431, Colony and Protectorate of Kenya
Proclamations, Rules and Regulations, Vol. XXVII, pp. 139-148.
3 Colonial Reports. Report on the Colony and Protectorate of Kenya for the Year
r952, p. 139.
• Central Office of Information, Kenya, Pamphlet No. RF.P.5611 (1963), p. 27.
5 Cmnd. 309, p. 3; Cmnd. 369, pp. 3-4.
6 The Kenya (Constitution) (Amendment No. 2) Order in Council, 1960, Sta/utory
Instruments, 1960, No. 2201; Cmnd. 960, pp. 7-8.
7 Legislative Council Elections Ordinance, 1960 (No. 48 of 196o), sec. 9. Kenya
Ordinances, 1960, Vol. XXXIX, p. 3.p.
8 Colonial Office,Report on theColony aud Proteclorate ofKenya for the Year r960,
pp. 115-116.
9 Ibid., p.115.
10 Cmnd. 1700, p. r6.
11
The Kenya Ortler in Council, 1963, Statutory Instruments, 1963, No. 791.
12 Cmud. 2082, p. 1.
13 The Kenya Order in Council 1963, secs. 28-30 and Schedule 2, Part Il, Statutory
Instruments, 1963, No. 791, pp. 36-37, 222-224; Central Office of Information,
Kenya, Pamphlet No. RF.P.561 r (1963), p. 30.
14 Ibid., sec. 30 and Schedule 3, pp. 37 and 228-230. COUNTER-MEMORIAL OF SOUTH AFRICA
Districts and the Nairobi area 1•The Executive power rests in a Cabinet
advising the Govemor, on a basis of collective responsibility to the two
2
Houses of the National Assembly .
Tanganyika
3
24. In 1945 the membership of the Legislative Council was
increased 4, and the Africans gained representation on it for the first
time. Two Africans were then appointed as nominated unofficial mem
bers 5, and by 1948 two additional Africans had been appointed 6•
25. In 1946 the territory was placed under the international trustee
7
ship system •Certain changes in the Executive and Legislative Councils
were introduced in 1948 6,and in 1955 these bodies were again reorgan
ized. Africans were given two members in an Executive Council con
sisting of 14 members, and ten appointed representatives on a Legislative
Council of 61 members a.
26. Elections were first held in 1958-1959. There was a comrnon voters'
roll, and the voters' qualifications were such that African voters formed
an over-all majority; but a spécialvoting system designedly maintained
racial parity 9.
27. In 1960 there were further major constitutional changes. The
franchise qualifications were substantially reduced 10, resulting in many
1
more voters coming on to the roJI 0.The principle ofparity of the races no
longer applied; but in certain constituencies seats were reserved for
European and Asian members and there were also a number of nominated
members of each race 10. As a result the Legislative Council retumed in
1960 consisted of 50 elected African members, II elected Asians, ten
elected Europeans, two ex officiaEuropean members, and nine nominated
members of whom three were Africans, twoAsians and four Europeans 11•
The Executive Council was replaced by a Council of l\finîsters and Cabinet
government was introduced in 1961, resulting in seven African Ministers
being appointed out of a total of 14 12.Tanganyika became independent
in December 1961, adopted a republican form of government (within
the Commonwealth) in December 1962, and now has universal adult
suffrage and a Cabinet of r5, being 12 Africans, one Arab, one Asian
and one European 13,
1 The Kenya Order in Council, op. cil.secs. 26 and 27, p. 36.
2 Ibid., secs. 66 and 67, pp. 59-60. ·
3 Vide Annex A. paras. 22-24, supra.
• The Tanganyika (Legislative Council) Amendment Order in Council, 1945,
St5te Papers, Vol. CXLV, pp. 651-653.
Cmd. 7987, p. 9-
6G.A ., O.R., Fi/th Sess., Supp. No. 4 (A/1306), pp. 5-6.
7 U.N. Doc. T/Agreement 2, 9 June 1947.
8G.A., 0.R., Eleventh Sess., Supp., No. 4 (A/3170), p. 36.
0G.A ., 0.R., Fourteenth Sess., Supp. No. 4 (A/4100), pp. 25-26.
toG.A ., O.R., Sixteenth Sess.• SttPP- No. 4 (A/4818), p. 25.
11Ibid., pp. 24--25.
12
13Ibid., p. 24.
Steinberg, S. H. (ed.), The Statesman's Year-Book z963, p. 548; Keesing's
Contemporary Archive,, Vol. XIII, 1961-1962, p. 19132. SOUTH WEST AFRICA
Uganda
28. Three African members were appointed to the Legislative Council
1 2 3
of Uganda in 1945 , and a fourth was added in 1947 •Two of the four
African members were henceforth elected by Councils in their respective
provinces 4• In 1950 Africans were given eight seats in a Legislative
Council then totalling 32 3, but as yet no direct representation on the
3
Executive Council • A new constitution in 1955, however, gave them
three l\linisters in an Executive Council of r3 s, and 30 members (ap
pointed) in a Legislative Council of 60 s. Further changes in 1958 raised
the total membership of the Legislative Council to 62, of whom 34 were
6
Africans •At the same time direct elections for the African representa
tives were introduced, the franchise being based on qualificatio~s relating
to property, literacy, public service, regular employment, or income 7•In
1960 the franchise was broadened and in the next year direct elections on
a common roll were held in 82 constituencies s, resulting in 78 seats
being held by Africans 9and a Cabinet with nine African Ministers out of
a total of 14 being formed 9.
29. Uganda received self-government in March 1962 and became
independent in October of the same year. The new constitutional arrange
ments provided for an all-elected National Assembly based on universal
adult suffrage with a common roll, with Buganda in federal relationship
and the three Agreement Kingdoms (Toro, Ankole and Bunyoro) in
semi-federal_relationship with the central Government 0.
British Somaliland
30. A Protectorate Advisory Council was established for this territory
11
in 1947 ,but no further significant changes·took place until 1957.Then,
in the short space of three years, as a result of a number ot constitutional
changes, the territory developed from one having neither Executive nor
Legislative Councils, into a fully independent country with a Cabinet
system of Govemment aml a Legislative Council elected on the basis of
universal adult male suffrage 12• The fi.rst Executive and Legislative
Councils established in 1957 contained no elective element 12 ;this was
first introduced in 1959 in respect of a minority of the members of the
12
Legislative Council ,and in the next year the Legislative Assembly
1 Vide Annex A, para. l9, supra.
2 Cmd. 7167, p. 34.
s Central Office of Information, Constitutional Development in the Commonwealth,
No. RF.P.2010, Part II, p. 22. .
5 Cmd. 7715, p. 23.
. Central Office of Information, Uganda: The Making of a Nation, No. RF.P.
5441, pp. 31-32.
6 Central Office of Information, Political Advance i1i the United Kingdom Depen
dencies,No. RF.P.4324 (1959), p. 16.
7 Apter, D. E., The Political J(ingdom in Uganda (1961), p. 429.
1 Central Office of Information, Uganda: The Making of a Nation, No. RF.P.
5441, p. 33.
9 Keesing's Contemporary Archives, Vol. XIII, 1961-1962, p. 18o44.
1
11 Cmnd. 1523, pp. 4-5, 14-19.
Colonial Office, Atinual Report on the Somaliland Protectora~ forthe Year z948,
p. 32. .
12 Cmnd. 1044, pp. 3-4. COUNTER-MEMORIAL OF SOUTH AFRICA 517
became fully elected 1•The executive authority was vested in a Council of
Ministers who were responsible to the Legislative Assembly 2• British
Somaliland became independent on 26 June 1960 and merged with the
former Italian Trusteeship Territory of Somalia to form the Somali
Republic on I July 1960 3•
III. BRITISH CONTROLLED TERRITORIES IN WEST AFRICA
GoldCoast
31. In 1946 the Legislative Council of the Gold Coast i was reconsti
tuted to become the first such Council with a majority of African unofficial
members in the whole of British Africa 5•Sorne of the elected African
members were directly elected through a franchise based on property and
other qualifications 6,but the majority were elected by various electoral
6
colleges • >
32. A new constitution of 1951 provided for a Legislative Counci1 of
84 members, of whom 75 were elected African members 7, but of the
7
latter number five only were directly elected • At the same time there
were eight Africans in the new Executive Council of II members 7• An
African :6.lledthe post of Prime Minister newly created in 1952 8•
33. A further revision of the constitution in 1954 resulted in the direct
election of ail members of the Legislature 9, on the basis of universal
adult suffrage 9. The Executive Council now became a Cabinet of Minis
ters presided over by the Prime Minister 10•
34. The Gold Coast thus became the first African Colony to have a
Legislature wholly elected on the basis of universal adult suffrage with
an all-African Cabinet of Ministers. It became independent in 1957,
thenceforth to be known as Ghana.
Nigeria
35. In 1942 the Africans of Nigeria gained representation on the Execu
tive Council, two of the three unofficial members appointed then for the
first time being Africans 11• ·
36. Major constitutional changes were brought about in Nigeria ·ïn·
1947, 1951, 1954 and 1960, culminating in a Federal Constitution under
which the country became independent in the last-mentioned year.
1The Somaliland Order in Council, 196o. StatutOf'yInstruments r960, No. 1060,
Annex, sec. 17, p. 6.
i Ibid., secs.3 and 4, pp. 3-4.
3
Steinberg, S. H. (ed.), The Statesman's Year-Book r963, p. 1389.
i Vide Annex A, para. 27, supra.
' Royal Institute of International Affarrs. Chatham House MemOf'anda, Ghana,
A Brief Political and Economie Survey (1957), pp. 13-14.
6 Ibid. and Elias, T. O., Ghana and Sierra Leone, The Development of tbeh- Laws
and Constitutions (1962), p. 70. ···
7 Ibid., p. 16.
B Elias,op. cit., p. 1.
9 4
Ibid., p.42.
10Ibid., p. 65.
11 Central Office of Information: Nigeria: The Making ofa Nation, 1960, p. 29.518 SOUTH WEST AFRICA
37. As from 1947 the Legislative Council contained a majority of
African members, most of whom were indirectly elected by regional
electoral colleges 1. In 1954, however, universal adult suffrage for the
mcmbers of the Legislative Council (by then known as the House of
Representatives} was introduced in the Eastern Region of Nigeria; the
members representing the Western Region were elected by tax suffrage,
whjle the electoral college system was sWl in force in the Northern
2
Region •
38. Although the Legislative Council had jurisdiction over the whole
ofNigeria 3, Nigerian diversity was acknowledged in a system of Regional
Legislative Houses with legislative powers on a wide number of subjects 3•
Similarly, the Executive Council of Nigeria (which became a Council of
Ministers in 1951) 4 was the principal instrument of policy in Nigeria 4.
but at the same time there were Regiona1 Executive Councils in the
varions regions of the country 4.
39. Under the 1960 Constitution the Federal Parliament consists of a
5
Senate and a House of Representatives • The members of the House of
Representatives are now elected on the basis of universal adult suffrage
in the Eastern and Western Regions, Lagos and the Southern Cameroons,
the franchise being restricted to adult males only in the Northern Region.
Each Region is, subject to the federal Constitution, a separate self
governing state with its own executive and legislative organs 6 •
Sierra Leone
40. In 1943 the Africans obtained representation on the Executive
Council 7 of the territory for the first time, when two unofficial African
members were nominated by the Governor 8 ;and in 1948 a third African
member was added 9 •
41. The Legislative Council was reconstituted in 1951 10, after its
composition had remained unchanged for 27 years 1• About two-thirds
of its members were now elected, some directly, on the basis of adult
suffrage with property and literacy qualifications 12,and the majority
indirectly by rneans of electoral colleges 12•
42. At the same time the Executive Council was reconstituted so that
1 Report by His Mafesty's Government in the United Kingdom of Great Britain
and Northern Ireland to the Trusteeship Council of the United Nations on the Admini
stration of the Cameroons under United Kingdom TrUitusMP for the Year I947,
Colonial No. 221, p. 15.
2
Ezera, K., Constitutional Developments in Nigeria (196o), pp. 201-202 and 208.
3 Ibid.,p. 202.
• Ibid., p.204,
5 The Nigeria (Constitution) Order in Council, 1960, Statutory Instruments, 1960,
No. 1652, sec. 36.
6 Ibid,, Schedules 3, 4 and 5.
7 Vide Annex A, para. 34, supra.
8 Elias, op. cit., p. 25r.
9 Central Officeof Information, Sierra Leone: The Making of a Nation, No. RF.P.
4851 (196o), p. 26.
10
The Sierra Leone (LegislativeCouncil) Order in Council, 1951, Statut<»'yInstru
ments, 1951, No. 6rr.
11 Vide Annex A, para. 34, supra.
12 Elias,op. cit.,pp. 247-248. COUNTER-MEMORIAL OF SOUTH AFRlCA
the majority of its members were drawn from the elected members of
the Legislative Council 1.
43. Constitutional changes in 1956 resulted in a majority of directly
elected African members being returned to the Legislature (the House
of Representatives) 2, on the basis of a franchise extended to virtually
3
all adult taxpayers • In 1958 the terri tory received its first all-African
Executive Council and an African Prime Minister 4•
44. Further constitutional developments in 1958, 1960 and 1961 re
sulted in Sierra Leone becoming a fully independent State within the
British Commonwealth 5, with an all-African Cabinet and a House of
Representatives directly elected by universal adult suffrage 6.
British Cameroons
45. In 1946 the General Assembly of the United Nations approved
a trusteeship agreement for the British Cameroons. The administration
of the Territory was fully integrated with the adjoining areas of the
7
Protectorate of Nigeria , so that the Cameroons had no legislative,
administrative or budgetary autonomy, but shared a common executive,
legislative and judicial system with the Protectorate of Nigeria 8• In
the 1951 Nigerian constitutional changes the Cameroons obtained its own
representation in the Central House of Representatives 9 and also in
the Northern and Eastern Regional Houses of Assembly 10•
46. Under the 1954 Nigerian Constitution and thereafter the Northern
Cameroons continued to be closely integrated with the Northem Terri
tories of Nigeria, sharing in the election of members to the Federal
House of Assembly and to the Northem House of Assembly 11,while
the Southern Cameroons becanÎ.e a separate federal constituent with
its own Rcgional House of Assembly and Executive Council 12•The fran
chise for the election of members of the House of Assembly was the same
as in the other Regions 13•
47. In 1961 plebiscites were held in.the Northem and Southern parts
of the Trust Territory for the purpose of determining whether the people
wished to achieve independence by joining the independent Federation
14
of Nigeria or the independent Republic of Cameroun • As a result, the
1 Elias, op. cit., p251.
1 Ibid.,p. 249.
3 Ibid.,p. 254.
• Central Office of Information: Siel't'aLeone: The Making of a Nation. Xo. RF.P.
4851 (1960), p. 28.
~ Elias,op. cil.,p. 258.
1 Ibid.,pp. 259-260.
The Nigeria (Protectorate and Cameroons) Ortler in Council, I946, sec. 6,
State Papers, Vol. CXLVI, p. 3or.
8 Report on the Cameroons under United Kingdom TrusteesMp for the Year 1947,
p. 14.
9 Ibid.,r951, p. 39.
10Ibid .• pp.39-40.
11G.A ., O.R.• Tenth Sess., Supp. No. 4 (A/2933), pp. 144-145.
u Ibid., p. 144.
u Ibid., p. I46.
H G.A .,0.R., Sixteenth Sess., Supp. No. 4 (A/4818), p. 35. 520 SOUTH WEST AFRICA
Northern Cameroons joined the Federation of Nigeria as a separate
province of the Northern Region of Nigeria, while the Southern Came-
roons joined the Republic of Cameroun 1• ·
British Togoland
• 48. In 1946 the Southern Section of Togoland was included in the
Gold Coast Colony for legislative and administrative purposes 2 and
,
four years later the Southern Togoland Council was established for the
purpose of electing one member to represent the territory in the Central
Gold Coast Legislature; but the Northern Section of Togoland remained
administratively integrated with the Northern Territories of the Gold
Coast and subject to the legislative power of the Governor 3•
49. With the constitutional changes effected in the Gold Coast in
1951 and 1954 Togoland obtained more representatives on the Legis
lative Council. In 1956 a plebiscite showed a majority of the people
of British Togoland to be in favour of complete integration with an
autonomous Gold Coast, and this was effected when Ghana became an
4
independent State in 1957 •
Gambia
50. New Executive and Legislative Councils 5 were established for
6
the Colony and Protectorate of Gambia in 1946 , as a result of which
Africans received minority representation in both Councils 6•
51. A new constitution of 1954 provided for a Legislative Council
w~th a majority of elected members 7,·most of whom were elected by
various el~ctoral colleges 7• -As a result, Africans became the majority
of the members of the Council 7•The Executive Council was also re
constituted so as to have a majority of members appointed from the
elected or nominated members of the Legislative Council 7•
. 52. A new constitution was again introduced in 1960 8 providing
for 27 elected members in the Legislature-19 directly elected by uni
9
versal adult suffrage and_ the remaining eight by the Head Chiefs •
Internai self-government under yet a new constitution came in May
1962, the House of Representatives now having 36 elected members
(32 by universal adult suffrage and four by Chiefs) out of a total of 39.
An all-African Cabinet consists of a Premier and eight Ministers drawn
from the Legislature 10.
1 G.A., O.R., Sixth Sess., Supp. No. 4 (A/4818), p. 35
2 G.A., O.R., Fourth Sess., Supp. No. 4 (A/933), pp. 31-32.
3 G.A., Q;R., Sixth Sess.• Supp. No. 4 (A/1856), p. 153.
4 C.A., O.R., Twelfth Sess., Supp. No. 4 (A/3595), p.23.
' Vide Annex A, para. 38, supra. ·
6 Colonial Office,Annual Report on the Cambia for the Year I947, pp. 46-47.
1 Cambia Report for the Years I958 and z959, pp. 84-85.
, s The Gambia (Constitution) Order in Council, 1960, Statut~ry Instruments, 1~60,
No. 701. . .
9 Ibid.,secs. 22, 23 and 27 and Central Office of Information, Gambia, Pamphlet
No. R.5519, p. 12. ·
10 Steinberg. S. H. (ed.), The Statesman's Year-Book I963, p. 183. COUNTER-MEMORIAL OF SOUTH AFRICA 521
IV. FRENCH CONTROLLED TERRITORIES
French West Africa
53. In 1946 ail the French West African territories obtained represen
tation in the French National Assembly and in the Council of the Re
public 1. In addition, French West Africa was represented in the French
1
Union Assembly , which was a newly created advisory body, half of
whose members represented metropolitan France and half the associated
States of the new French Union 2• The franchise qualifications for the
election of deputies to the National Assembly were such that only a
3
limited number of the indigenous people gained voting privileges •
The Senators in the Council of the Republic and the representatives on
the French Union Assembly were elected by electoral colleges consisting
ofeach territory's deputies and/or the members ofeach General Council 3•
54. The General Councils, later known as Territorial Councils, were
representative bodies established in 1946 and 1948 for the varions terri
tories except Senegal 4. The electorate for these Councils èonsisted of a
double college of voters, the first being composed of citizens having
French civil status and the second of what may be termed territorial
citizens, being in practice Africans belonging to certain specified cate
gories 5•
Universal adult suffrage was introduced in French West African
territories in 1956 6•The Territorial Assemblies elected on this bas~ had
legislative powers over local affairs 6. At the same time Executive
Councils were established, consisting of a majority of members elected by
the Territorial Assembly 7,with a Territorial Head as Chairman 7•
55. In 1958 the French Union was transformed into the Community.
AU the French West African territories, with the exception of Guinea,
which preferred immediate independence through seccssion, voted to
become sovereign republics within the Community.
French Togoland
56. Aftcr the Second World War the Territory was placed under a
trusteeship agreement.
57. The Territory was given a Territorial Assembly in r946 8 which
consisted of 26 Africans and four Europeans 9. The two electoral colleges
were retained. The first was estimated at 400 voters who were French
citizens and elected six members. Out of a total adult population of
944,446, only 39,6I5 registered in 1947 in the second college 9• The
franchise qualifications were similar to those in force in the other French
Territories 9• In 1952 the size of the electoral body was increased and the
1 Thompson V. and Adloff R., French West Aj,ica (1958), p. 45.
2Robinson, K., "Political Development in French West Africa", in Africain th,
Modern World, edited by C. W. Stillman (1955), p. 157.
3 Ibid.,pp. r59-r6o.
• Thompson, V. and Adloff, R., French West Af,ica (1958), p. 54.
5 Robinson, K., Africa in the Modern World (1955), pp. 159-16o.
6 Thompson, V. and Adloff, R., French West Africa (1958), p. Bo.
7 Ibid .• p81.
8 Hailey, An Aj,ican Suroey (1957), p. 333.
9 G.A., O.R., Fourth Sess., Supp. No. 4 (A/933), p. 42.522 SOUTH WEST AFRICA
representation of the second college was raised 1• In 1956 the Territory
becarne part of the French Union and universal adult suffrage was intro
duced 2•
French Equatorial Africa
58. The post-war devclopments in French Equatorial Africa followed
substantially the same pattern as in the case of French West Africa.
In 1946 French Equatorial Africa obtained seats in the French National
Assembly, in the Senate and in the new French Union Assembly 3• The
local Assembly consistcd at first of members elected on a restricted fran
chise with the same type of two-fold electorate as in the case of French
West Africa \ but here too universal adult suffrage was introduced in
5
1956 • At the same time the position of the Govemor-General and
Govemors was modified by the establishment of Councils of Government
which in effect were cabinets under a system approaching closely to full
responsible government s.
59. The establishment of the French Community in 1958 led to the
four Territories comprising French Equatorial Africa ail becoming
Republican member States of the Community.
French Cameroons
60. After the Second World War a trusteeship agreement was con
duded for this Terri tory,
61. In 1942 it was given a Consultative Economie and Social Council
consisting of 34 members 6, which was succeeded in 1945 by a Territorial
Assembly 7• The members of the Assembly were elected by two electoral
colleges, the first consisting of French citizens and the second of others
8
falling in specified categories •The first college had a proportionately
higher representation; it consisted of 2,590 voters in 1946 and elected
16 European members 9 •In the second college it was estimated in 1946
that 450,000 to 500,000 persons were eligible to vote out of a total adult
population of 1,400,000; however, only 39,615 had registered in 1947.
This college elected 24 African members 9• In 1956 the Cameroons was
included in the French Union, and universal adult suffrage was intro
duced.
Madagascar
62. The post-war constitutional changes in Madagascar were similar
to those in the other French African territories. Under the constitution
of the French Union cstablished in 1946, Madagascar was one of the
1 G.A., O.R., Nintli Sess., Supp. No. 4 (A/2680), pp. 208-209.
2 Hailey, An African Suroey (1957),p. 334·
3 Thompson V. and Adloff R., The Emerging States of French Equatorial A/rica
(rg6o), P· 37·
5 Ibid., pp. 37-38.
Ibid., p.34.
" Hailey, An African Survey (1957),p. 335.
1Rapport Annuel du Gouvernement Français aux Nations Unies sur l'administra
tion du Cameroun placésous la tutelle de la France, annéer947, p. 12.
8 Ibid., pp. 24-25.
9 G.A., O.R., Fourth Sess., Supp. No. 4 {A/933), p. 17. COUNTER-MEMORIAL OF SOUTH AFRICA
523
"Overseas Territories" with representation in the French National
Assembly, the Council of the Republic and the Assembly of the French
Union 1 .The franchise and voting arrangements for the local legislative
organs were similar to those in the other French Territories discussed
above 2•
63. The French constitutional reforms in 1956 extended the principle
of universal adult franchise to Madagascar 3.
64. In 1958, when the French Union was transfonned into the Com
munity, the Representative Assembly of Madagascar proclaimed the
establishment of the Malagasy Republic.
V. ITALIAN CONTROLLED TERRITORIES
Eritrea
65. After the conquest of the Territory in 1941, a military adminis
tration was set up underwhich various advisory councils were established
from time to time 4.
66. ln 1952, as a result of a resolution of the General Assembly of the
United Nations 5,Eritrea was constituted an autonomous unit federated
with Ethiopia under the sovereignty of the Ethiopian Crown. Under the
federal Act Eritrea has executive, legislative and judicial powers in the
7
field of domestic affairs 6. The Eritrean Constitution provides for a
Legislative Assembly 8 elected eithcr by direct or indirect ballot, the
first stage of the latter being conducted in accordance with local custom 9•
The franchiseis given to adult male citizens 10•The executive power vests
in a Chief Executive elected by the Assembly and assisted by a Council
of Secretaries appointed by him 11. Eritrcans participate in the federal
executive, legislative and judicial processes in the proportion that the
12
population of Eritrea bears to the population of the Federation •
Italian Somali/and
67. ln 1946 the British military administration of the territory estab
lished a number of Advisory Councils 13.
1 Jl,fadagascar et les Territoires Français de l'Océan Indien et de la i\fer Rouge:
Comores-Iles Australes-Somalis (I954), p. 17; Deschamps, H., The French
Union (1956), p. 71.
2 Deschamps, H., The French Union (1956), pp. II3 and 150.
3
Livre d'Or de la Republique Malgache (1959), p. 55.
• Trevaskis, G. K. N., Eritrea A Colony in Transition: 1941-1952 (1960), p. 32.
' G.A. Resolution 390 A (V), 2 Dec. 1950, in G.A ., 0.R., Fifth Sess., Supp. No.
20 (A/1775), pp. 20-22.
6 Ibid., sec. 5. p.20.
7 Constitution of Eritrea, in G.A .• O.R., Seuenth Sess., Supp. No. 15 (A/2188),
pp. 76-89.
8
Ibid.,Art. 39, p.82.
9 Ibid.,Art. 43 (4), p. 83.
10 Ibid.,Art. 20,p. 80.
11 Ibid., Arts. 67-69 and 74, pp. 85-86.
12 Ibid.,Art. 7, p. 79.
u Administrative Instruction No. 125/46. Annual Reparl by the Chief Admini
stratar, I946. British lllilitarAdministration Somalia. Appendix 16, p. 42.524 SOUTH WEST AFRICA
68. In 1950 SomaWand was entrusted to Italy to administer as a Trust
1
Territory until it attained its independence . Various new advisory, non
elective Councils were thereupon established 2•
69. In 1956 a fully elective Legislative Assembly was introduced, con
sisting of 60 members to represent the Somali population and ten mem
bers representing the non-Somali communities 3• There was universal
adult male suffrage, but in rural districts an indirect electoral system
through tribal councils was in force 4. The executive government was
vested in a Council of Ministers, appointed by the Administrator, and
responsible to him and to the Iegislaturc 5•
70. In 1958 the electoral laws were amended to introduce universal
adult suffrage and to extend the direct ballot system, and in the next year
the second Lcgislative Assembly was returned on this basis 6• In 1960
Somalia obtained independence.
VI. BELGIAN CONTROLLED TERRITORIES
Belgian Congo
7r. As from 1951 Africans were appointed in the minority, to the
Central and Provincial Advisory Councils 7• Until 1959 there was no
material further change in constitutional arrangements.
On 13 January 1959 King Baudouin of Belgium declared his will to
8
lead the Congolese population to independence • Provision was there
upon made for the election by universal suffrage of municipal councillors
and members of territorial councils, who together would appoint pro
vincial councillors and, Iater on, general counsellors 8• Forerunners of a
Chamber of Representatives and a Senate were also established 8•
72. A year later a conference in Brussels decided on independence for
the Belgian Congo to be granted on 30 June r96o and adopted a number
of resolutions providing for the preliminary constitution of the new
State 9• The legislative power was to be exercised by a House of Re
presentatives, whose members werc to be elected by universal suffrage,
and a Senate, whose members were to be designated by the provincial
assemblies (including a minimum numbcr of tribal chieftains or leaders) 10•
The two Houses, convened as a Constituent Assembly, wcre to draw up
the constitution of the Congo,State and to designate the Head of the
State 11•Other resolutions regulated the division of powers between the
Central Legislature and the provinces, and the organization of Provincial
1 U.N. Doc. T/Agreement/10, 8 Aug. 1951.
2G.A ., 0.R., Sixth Sess., Supp. No. 4 (A/1856), pp. 84-85.
3G.A .. O.R., Eleventh Sess., Supp. No. 4 (A/3170), p. 90.
+ Ibid., p.92.
s Ibid., p.9r.
6
1C.A., O.R., Fifteenth Sess., Supp. No. 4 (A/4404), p. 90.
Hailey, An African Survey (1957), pp. 350-35r.
8 "The Congo on the Road to Democracy", in Infor Congo, The Belgian Congo
Today, Vol. VI11, No. 3, p. 9.
9 Ganshof van der Meersch, W. J., Fin de la Soiwemineté Belge au Co-ngo Docu
ments et Réflexions (1963), pp. 161-164.
10 Ibid., pp. 167-168 and 126-129.'
11
Ibid., pp. 167-169. COUNTER-MEMORIAL OF SOUTH AFRICA 525
Assemblies and institutions 1•These resolutions became the law .under
which independence was granted to the country on the fixed date 2•
Internai hostilities delayed the adoption of the contemplated constitution
until October I962 3.It concemed mainly the division of power between
central and provincial authorities 3•
Ruanda-Urundi
73. In I946 the United Nations approved a trusteeship agreement,
with Belgium as the administering authority 4. In the next year an
Advisory Council was established, consisting entirely of ex officia and
appointed members 5• In I949 the two Native Kings of Ruanda and
Urundi were appointed ex otficio members of the Cormeil 6• By I954 the
7
number of African members on the Council had been increased to five •
In I957 this Council was replaced by a General Council which was still a
-purely advisory body with a majority of appointed European members 8•
74. In the meantime, however, developments in the system of loca
govemment provided for the indigenous peoples increasing participation
in administration. The members of the indigenous Sub-chiefdom Coun
cils, Chiefdom Councils, District Councils and High Councils of the States
9
were elected indirectly and by means of electoral colleges , and steps
were taken to make the local institutions more democratic 10• Major
reforms in I959 and 1960 extended the principle of direct adult male
suffrage, and conferred limited legislative powers on the King and State
Council in each of the two territories of Ruanda and Urundi n. Further
developments 2 included the abolition of the monarchy in Ruanda and
the holding of general elections in the two territories resulting in the
Trusteeship Agreement being terminated on I J uly Ig62 and Rwanda and
13
Burundi emerging as two independent and sovereign States •
VII. PORTUGUESE TERRITORIES
75. Portugal did not adopt a policy of granting separate independence
to its African territories on the basis of a general franchise. The system
of regarding the terri tories as part of Portugal was retained and they were
now called "provinces" u.
1 Ganshof van der Meersch, op. cit.pp. 167-169. .
2 Britannica Book of the Year, r96r, Encyclopaedia Britannica, p. 144.
3
Steinberg, S. H. (ed.), The Statesman's Year-Book r963, p. 914.
~ U.N. Doc. T/Agreement/3, 9 June 1947, secs. I-2,p. 2.
5 Arrêté Royal, 4 Mar. 1947 as cited by Hailey, An African Survey [1957),
p. 352
6 G.A., O.R., Fifth Sess., Supp. No. 4 (A/1306), p. 19.
1 G.A., O.R., Tenth Se.ss., Supp. No. 4 (A/2933), p. 78.
8G.A., O.R., Thirteentk Sess., Supp. No. 4 (A/3822), Vol. II,p. 4r.
9G.A., O.R., Tenth Sess., Supp. No. 4 (A/2933), p. 79.
toG.A., O.R., Twelfth Sess., Supp. No. 4 (A/3595), p. 59.
11
12G.A., O.R., Fifteenth Sess., Supp. No. 4 (A/4404), pp. 64-66.
G.A., O.R., Si~teenth Sess., Supp. No. 4 (A/4818), p. 30.
13G.A., O.R., Seventeenth Sess., Supp. No. 4 (A/5204), p. 9.
14Law No. 2048, Political Constitution of the Portuguese Republic;(1957), Chap.
VII, Art. 134, p. 36.526 SOUTH WEST AFRlCA
76. Provision was made in r95r for the representation of the provinces
in the Portuguese National Assembly. Angola and .Mozambique each
elected three Deputies and Portuguese Guinea one, out of a total of
120 Deputies 1• The franchise was confined to citizens, i.e., adult members
2
of thepopulaçao civilizada • The composition of the population in 1950
was as follows 3:
Tolal Populaçào White Hal/ lndian Native
pop. CiviJiJ:ada caste
Guinea. . . . 510,777 8,320 2,263 4,568 II 1,478
Angola . . . 4,I45,266 135,355 78,826 26,335 30,039
Mozambique 5,782,982 92,619 48,813 25,165 12,673 4,353
77. The New Organic Law of 1953 introduced Legislative Councils,
with advisory powers only, for Angola and Mozambique\ In Angola
II out of a total of 36 members and in :Mozambique nine out of a total
of 24 members were directly elected by the citizens "',thus introducing
a direct elective element for the first time in the central govemment of
these territories-the other seats on the Councils being filled in basically
the same manner as had applied to the Councils of Government 5• The
latter Councils were retained and here also an elective element was in
troduced, i.e., the election of one member for each district by citizens \
78. Consideration has been given since 1962 to provide for "adequate
representation" for the territories at the national level, i.e., in the National
6
Assembly, the Corporate Chamber and the Overseas Council , and for
the establishment in the Territories of fully elected Legislative Councils
with legislative powcrs 1.
VIII. SPANISH TERRITORIES
Spanish Guinea
79. Until 1960 the Territory was administered on the same basis as
in the pre-war period. The Governor had, however, two Advisory
Councils, one composed of the civil and military heads of local services,
and the other of representatives of the Chambers of Commerce and
certain nomina ted officiais 8•
80. In 1960 the Territory was divided into two provinces, each be
coming a province of Metropolitan Spain under a civil governor, the
9
inhabitants having the same rights as Spanish citizens , and therefore
1 Hailey, An African Survey (1957), p. 230.
2 Art. 23, Native Statute as citcd by Egerton, F. C. C., Angola in Perspective
(1957), p. nS.
3 Anuàrio Estatistico do Ultramar, 1952, pp. 26-27 as cited by Hailey, An
African Survey (1957), p. 232.
i Hailey, An African Survcy (1957), p. 355.
5 Vide Annex A, para. 58, supra.
6 According to a statement apparently made by the Permanent Representative
of Portugal at the I r55th Plenary Meeting of the General Assembly on 18 Oct.
1962, vide U.N. Doc. A/5446/Add. l (19 July 1963), pp. 23-24.
• Ibid., p. 25.
s Hailey, An African Survey (1957), p. 234.
9
"'hitaker, J., An Almanach. 1961, p. 928. COUNTER•MEMORIAL OF SOUTH AFRICA 527
the right to partake in the election of the elected members of the Cortes
de Espàna.
During this year autonomy for these provinces was provided for in
a statute, subject to a plebiscite recently held. The result is not yet
known l.
IX. INDEPENDENT STATES
Ethiopia
Sr. Ethiopia received a new constitution in 1955, providing for a
Chamber of Deputies elected by universal suffrage 2•Two years later the
first elections in the history of the country were held 3.The members of
the Senate are still appointed by the Emperor 4.
Liberia
82. The tribal people of the hinterland of Liberia received represen
tation in the legislature of the country for the first time in 1945, when the
three provinces were allotted one representative each in the House of
5
Representatives .By 1962 six members of the House of Representatives
represented the provinces out of a total membership of 40 6•According
to the Liberian Government, the tribes living in the counties are re
presented by an additional number of reprcsentatives 7; accordingly
8
approximately one-third of the members represent the tribes , which are
estimated at 1,250,000 people, as against approximately two-thirds
representing the Americo-Liberians, whose number is estimated at be
tween 12,000 and 20,000 9.
1 A.F.P. Africa South of the Sahara, No. 1012, 21 Oct. 1963.
2 Articles 93-95 of theRevised Constitution of Ethiopia (1955) in Ethiopia Observer,
Vol. V, No. 4 (1962), p. 375.
3 Silberman, L., "Ethiopia Elects", in The Listener (14 Nov. 1957), pp. 774-775.
4
Article 101 of the Constitution, in Ethiopia Observer, Vol. V, No. 4 (1962),
p. 37.5.
) Hailey, An African Survey (1957), p. 357.
6 Liberia Annual Review 1962-1963, pp. 278-281.
7 Carter, G. (ed.),African One-Parly States (1962),p. 356.
8 Townsend, E. R. (ed.), President Tubman of Liberia Speaks (1959), p. 155.
9 Kitchen, H. (ed.),The Press in Africa {1956), p. 85; Bueil, R. L., Liberia: A
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